Judge orders trial for 3 defendants in deadly Modesto shooting

A judge on Wednesday ordered three men to stand trial in a deadly Modesto shooting during a suspected attempt to steal marijuana from an indoor garden.

Rojelio Vivero, 37, Aureliano Vivero, 21, and Pablo Mora, 22, are charged with murder and attempted robbery in the shooting of Emmanuel Andrade. The 22-year-old man was from Greenfield, south of Salinas, but had relatives at the home.

Authorities say intruders tried to force their way inside the south Modesto home, and one of them shot through a door, fatally wounding Andrade. Police chased three people into west Modesto, where the suspects eventually were captured.

Stanislaus Superior Court Judge Thomas Zeff scheduled the men to return to court Aug. 26 for an arraignment hearing. The defendants, all from Stockton, remain in custody at the county jail.

A preliminary hearing for the defendants concluded Wednesday with the judge’s ruling. Modesto police Sgt. Thomas Moffett testified in the hearing that a few dozen marijuana plants were found in three rooms of the single-story house in the 2300 block of Park Faith Lane, a few blocks north of West Whitmore Avenue in south Modesto.

The plants were part of a sophisticated marijuana growing operation that was running on electricity stolen from Turlock Irrigation District. Moffett said on the witness stand that the operation was capable of producing an estimated $32,000 in bulk sales after each three-month growing cycle. He said the number of plants indicates the marijuana was being grown for sale, not personal use.

Deputy District Attorney John R. Mayne argued that the marijuana points to an attempted robbery as a motive for the killing. He told the judge that Rojelio and Aureliano Vivero tried to break into the home before Rojelio Vivero shot through the door, killing Andrade. The prosecutor said Mora was the driver waiting in the getaway car.

Martin Baker, Aureliano Vivero’s attorney, argued that there’s no evidence his client aided in a robbery. Baker told the judge that there was no cash found in the home and the marijuana plants couldn’t easily be taken from the home. The defense attorney also described the prosecution’s alternate theory of “a hit” as simply a possibility with no supporting evidence.

“Possible doesn’t rise to the level of probable cause,” Baker told the judge.

The fatal shooting occurred about 9:10 a.m. Nov. 23, 2013. Police have said the would-be intruders never got inside the home.

A family member called 911 and described the would-be intruders’ vehicle as a black BMW. Officers spotted a BMW about a mile away on Crows Landing Road and Whitmore Avenue, and the pursuit ensued.

The police chase went north on Crows Landing Road, then continued on Seventh Street before heading into west Modesto. The pursuit ended when the BMW crashed on Sutter Avenue.

Investigators believe Rojelio and Aureliano Vivero chased Daniel Andrade, the victim’s cousin, into the home’s garage. Modesto police Detective Gary Guffey testified that he questioned Rojelio Vivero, who said he fired the gun. “He said he used both feet to kick (in) the door,” Guffey said about Rojelio Vivero.

During cross-examination, Guffey said Daniel Andrade told police different versions about where he was headed when he confronted his attackers that morning. The detective also testified that Rojelio Vivero told police during questioning that he has been diagnosed with schizophrenia and has been hearing voices in his head for a long time.

Rojelio Vivero told Guffey that he didn’t tell the two other defendants that he was armed with a gun, because they wouldn’t have let him get inside the car with them. Investigators found a shoe print at the home that appeared to match Rojelio Vivero’s shoe, but analysts with the state Department of Justice examined the shoe print and had inconclusive results.

This story was originally published August 12, 2015 at 3:11 PM with the headline "Judge orders trial for 3 defendants in deadly Modesto shooting."