Mistrial declared in fatal shooting

The judge presiding in the case of two young men charged with killing a Johansen High School student in a drive-by shooting in 2004 declared a mistrial Thursday.

Jurors had been deliberating since Tuesday.

An exhibit the jury was not supposed to see was somehow placed among other exhibits in the deliberation room, said Mike Tozzi, executive officer of the Stanislaus County Superior Court.

Ernestina "Tina" DeJesus Tizoc, 17, was killed by a bullet from a passing car as she sat under a gazebo in Oregon Park in Modesto. She was not a gang member but was wearing a maroon blouse in a neighborhood where gangs fight over red and blue.

It will be up to Stanislaus County Deputy District Attorney Thomas Brennan to decide whether to refile the case, Assistant District Attorney Carol Shipley said. Brennan spoke to jurors Thursday and will evaluate the case.

A court date has been set for Feb. 5 to make that decision, Shipley said. Several jurors said they weren't convinced by the prosecution's case.

The inappropriate exhibit, juror Rudy Marquez, 42, of Modesto said, was a summary of defendant Rigoberto Moreno's background and history. Jurors came across the information Wednesday.

Juror Sharon Hubert, 52, remembered from the trial that a decision had been made that the jury should not see Moreno's history. She tried to discourage other jurors from looking at it and wrote a letter to the judge about the error.

Thursday morning, Superior Court Judge Nancy Ashley convened the jurors to declare the mistrial.

"It's a disappointment," Hubert said. "We spent a lot of time. We could have come to a conclusion that the DA hadn't proven their case. There were too many holes."

The defendants were tried on charges of murder, conspiracy to commit murder and participating in a criminal street gang.

To reach guilty verdicts, the jury would have had to believe that Moreno, 20, and Pedro Castillo, 19, both of Modesto, aided and abetted the alleged shooter, Edgar Barajas, 20, of Modesto and driver Jesus Rodriguez, 19, of Patterson.

Several jurors said Thursday that they hadn't been convinced Moreno and Castillo knew a homicide might happen when they piled into the white Chevrolet Blazer on May 26, 2004. They might have known there was going to be a fight, jurors said, but it hadn't been clear to them that the young men knew of or planned a killing.

Jurors said, in an initial vote, 10 jurors had been leaning toward a not guilty decision for Moreno, with two jurors undecided. They had planned to consider the charges against Moreno before moving on to Castillo.

Barajas and Rodriguez are to be tried separately. A fifth suspect, Mario Garcia, 21, of Modesto was expected to gain his freedom after testifying at both trials. The five men remain in custody.

The Moreno-Castillo trial began in early November, Mar-quez said. The jury expected to deliberate into January.

"We wanted to keep going but, from the attorneys' side, we could see how they might not think it was fair," he said. "It's frustrating. Six weeks later, you kind of want to see the end of it."

Hubert said Moreno and Castillo never should have been in adult court; they were juveniles when the shooting happened.

"One of them had such a baby face," she said. "I just don't think there was enough evidence for them to be tried as adults."

Bee staff writer Emilie Raguso can be reached at or 578-2235.

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