Defendant acquitted of murder in 2017 drug-deal shooting at park in east Modesto
A Modesto man was facing life in prison without the possibility of parole but instead was released on time served after a jury acquitted him of murder and robbery in a 2017 shooting.
Cody Lea, 21, was shot at Modesto’s Ustach Park on Nov. 21, 2021, when he met up with people to sell $2,000 worth of cocaine. According to evidence presented at the trial, Lea was shot in the neck while leaning into the passenger side of the suspects’ vehicle.
Deputy District Attorney Wendell Emerson said David Wilmore orchestrated the drug ripoff that led to Lea’s death and he brought the gun to the scene.
Multiple people were arrested in connection with the shooting but Wilmore was the only defendant to go to trial in Lea’s murder. Defense attorney Jai Gohel presented evidence that he said proved a man named Daniel Tramel was the shooter.
Gohel said Wilmore and others did not use force or fear to rob Lea but rather tricked him into handing over the cocaine under guise that they would weigh it, but then started to drive away.
“Unfortunately, the reaction of Mr. Lea was to jump into the passenger side of the car as it was moving,” Gohel said. He alleges that’s when Tramel shot Lea.
Tramel never was charged with murder and instead pleaded guilty to robbing Lea, possession of a controlled substance for sale and a gun enhancement. He was sentenced to nine years in prison.
Another suspect, Steven James Hinostroza Jr., was arrested on suspicion of Lea’s murder around the same time as Wilmore but in exchange for his testimony was not charged.
Emerson said evidence showed that one of several people could have been the shooter.
Wilmore was charged under the felony murder rule, which allows someone other than the actual killer to be charged with murder. But it is a law that has changed drastically in the years since Wilmore’s arrest.
Rule lets nonshooter be charged
The law used to allow for a defendant who did not actually commit the murder to still be charged with the crime if someone was killed during the commission of a felony.
The law was changed in 2019 to narrow the scope of who can be charged under the felony murder rule. Now for the defendants who are not the actual killers, the prosecution must prove that they either were a major participant and acted with reckless indifference to human life or that they aided and abetted with intent to kill.
Wilmore was prosecuted under the theory that he was a major participant who acted with reckless indifference to human life, but Emerson said even the definition of “reckless indifference to human life” changed with an appellate court’s interpretation under the new law.
“The rules of the game changed while we were playing it,” Emerson said.
Hinostroza, the suspect who had the testimonial agreement, testified that Tramel told him he shot Lea.
Emerson said Hinostroza denied being at the scene but there was evidence to suggest he was: His vehicle was used in the crime and he powered down his phone before the shooting and turned it back on afterward.
Wound suggests who fired
Evidence also was presented that Tramel tweeted 15 minutes after the shooting the he just “cut the s--- out of” his hand and might need stitches. A little over a week after the shooting, he was found to have an injury on his thumb consistent with what a defense expert testified can be caused by the slide of a gun when fired, Gohel said.
“My client was not the shooter and we convinced the jury of that and that my client never intended to rob this individual but did intend to trick him into giving him the drugs,” Gohel said.
The trial lasted about a week and a half, with a break over the Christmas holiday.
The jury acquitted Wilmore of first-degree murder and robbery and found him guilty of a lesser included charge of grand theft. The punishment for the crime is a three-year sentence, but Wilmore already had spent four years in jail awaiting trial, so he was released the day of the verdict, Jan. 4.
“The jury came back with a verdict in 90 minutes, which is the fastest murder verdict that I’ve ever seen,” Gohel said.
“I think DAs all over the state need to reevaluate (when they charge under the felony murder rule),” he said. “They are going to have a harder and harder time convicting the nonshooter under the new law.”
He said Wilmore is pleased with the verdict and he “acknowledged he needs to change his life and he has the rest of his life to make amends.”
Emerson said Lea’s family was devastated by the verdict. “They believed Wilmore was responsible for the death of their son by setting up the ripoff that ultimately led to his death,” he said.
This story was originally published January 13, 2022 at 7:19 AM.
