Judge to determine guilt of boy, 13, accused of killing Modesto taco truck owner
The judge in a trial that concluded Monday will decide whether a Modesto boy fatally shot a food truck owner in the face last year.
Testimony took place over several months, marked by COVID-related delays, a witness changing his story and debate over whether a TikTok video showed the weapon used in the alleged murder.
The boy was 13 years old on Feb. 16, 2021, when at 8:15 p.m. he walked up to the Mexican food truck parked outside the Airport Market on Monterey Avenue, prosecutors say. They allege he immediately pulled a gun out of his jacket pocket and within seconds fired into the truck, killing 67-year-old Rafael Avila-Rodriguez.
Surveillance video captured the shooting from two angles, but the quality was poor. Judge Rubén Villalobos said in court that he’d watched the videos at least 30 times and described the shooter in the video as a “shadow of a person” who appears to have been wearing a puffy jacket and a hat that fell to the ground as he fled the scene.
Four hours prior to the shooting, the juvenile was with friends when he was captured on a different video surveillance camera at Le John’s Market on Oregon Drive, also in the airport neighborhood.
The video showed the boy wearing a puffy gray jacket with horizontal stitching and a blue Los Angeles Dodgers hat with a white button and lettering and the sales sticker left on the brim. A hat just like that was recovered by police at the shooting scene.
Eyewitness changes story
In the video of the shooting, another person can be seen on the other side of the street. Prosecutors say that person was a 16-year-old boy who was with the juvenile defendant at Le John’s Market earlier in the day.
Detectives interviewed the 16-year-old boy a few days after the homicide, according to testimony. He initially told investigators he was not with the defendant at the time of the shooting and expressed fear he could be harmed for talking to police.
Deputy District Attorney Jon Appleby said in closing arguments that the boy nine times expressed fear of the defendant and his family. The boy said things like, “I don’t know, he knows a lot of people, bro,” and “If he gets this paper on what I’m saying, bro ... I’m practically a dead man.”
The 16-year-old eventually told detectives that he was at the scene of the shooting and that the defendant told him he was going to do “a quick come up,” meaning get some cash. He told them he didn’t know the defendant had a gun.
But the 16-year-old later told a defense investigator and ultimately testified that he was not at the shooting scene. He did testify that the defendant told him earlier in the day that he planned to “do a quick come up” but that the two split up and he didn’t see him after that.
The defendant’s attorney, Alonzo Gradford, said in closing arguments that it is reasonable to conclude the 16-year-old witness felt intimidated being in a small interrogation room with armed police officers. He said the boy was “pressured and scared” and likely gave the statement he did so they would let him leave.
“The interrogators are saying over and over, ‘We just want to know why,’” Gradford said. “So he gave them something to get them off his back.”
Appleby agreed that the boy was scared, but not of the police. During testimony, it was revealed that the defendant’s father drove the 16-year-old to Gradford’s office to be interviewed by the defense investigator about a month after the shooting.
The boy’s testimony “was tempered by his own fear and concern,” Appleby said
The defendant’s father initially testified that he did not drive the boy to Gradford’s office but later admitted he did and had lied because a detective previously told him he would be arrested if he interfered in the investigation.
Gradford said the defendant’s father was simply trying to follow up on leads that investigators refused to.
The father testified that he told investigators people on the streets were saying the shooter was a guy named Boo-Boo, but that he didn’t know Boo-Boo’s real name or any other identifying information.
Dad picks up suspect near shooting scene
In addition to the clothing and hat and statements made by the 16-year-old witness, Appleby presented as evidence cell phone data that showed the 13-year-old in the area and calling his father three times within minutes of the shooting. Ten minutes after the shooting, the boy’s father picked him up at Oregon Park, which is just a few blocks from the scene.
Modesto police officers testified that when they arrested the boy at his house in west Modesto four hours after the shooting, he was wearing the same clothing as seen in the Le John’s market video but was missing the hat.
They said that while in the back of the patrol car, the boy tried to kick out the window and slip out of his handcuffs and yelled threats to kill the officers.
Detective Derrick Letsinger testified the boy also made the spontaneous statement, “F--- you. I will go to the airport and look for the f---ing people who killed whoever.” Letsinger said the boy had been told only that he was being arrested in connection with a homicide, not where the homicide had occurred.
Letsinger testified about administering a gunshot residue test to the minor. The detective said the boy was calm as he swabbed his left hand but pulled his right hand away and tried to wipe it in his hair. The shooter in the surveillance video used his right hand.
The murder weapon has not been found and there were no traces of gunshot residue on the boy’s hands. However, detectives did find a TikTok video of the boy holding a firearm three days before the shooting. According to testimony, the gun in the video was a Glock clone and the weapon used to shoot Avila-Rodriguez was a Glock or a Glock clone.
Gradford said the prosecution’s case is based on circumstantial evidence, all of which could have reasonable alternative explanations. He said the boy’s clothing and hat are not unique and that the gun seen in the TikTok video is one of multiple Glock clones.
Gradford pointed to testimony by Letsinger that “information and word spreads like crazy,” so it is reasonable to believe that his client had heard about the shooting during the four hours before his arrest. He said his client’s actions following his arrest were consistent with a boy who’d been separated from his father and wanted to prove his innocence.
Juvenile law requires more proof
Appleby not only had to present evidence linking the boy to the shooting but, because of the defendant’s age, had to argue why the boy could legally be prosecuted at all.
Under California law, children under the age of 14 can only be prosecuted for a crime if there is “clear proof that at the time of committing the act charged against them, they knew its wrongfulness.”
Appleby said the boy had been arrested for a less serious felony offense about six months before the murder and the court found he understood the wrongfulness of that crime.
“If he knew the wrongfulness of the first crime he would know the wrongfulness of a greater crime six and a half months later,” Appleby said.
Judge Villalobos is expected to rule on the case Monday.
The incarceration time of a convicted juvenile offender is based on rehabilitation needs, not punishment, and is far less time than for an adult convicted of the same crime.
Juvenile court maintains jurisdiction of a case until the minor turns 25, meaning the minor could potentially remain in custody up to that age or be arrested for violating probation.
This story was originally published April 6, 2022 at 6:30 AM.
