A man charged in the 2011 shooting death of 3-month-old infant Izack Jesus Jimenez Garcia in East Palo Alto reached a plea deal approved by a San Mateo County Superior Court judge on Thursday, paving the way for his release.
Fabian Zaragoza, 25, was taken out of custody eight years after he was arrested for the fatal shooting of the little boy who became known to the community as "Baby Izack." Zaragoza's release comes after prosecutors decided they could not get a conviction on the basis of malice and because Senate Bill 1437, a state law that went into effect this year, changes the way murder is interpreted in some cases, particularly if the defendant cannot be proven to be the actual shooter.
But as his trial was about to begin next week, he pleaded no contest on Thursday morning to lesser charges: assault with a deadly weapon and an allegation of being a principal person in the commission of a felony who is armed with a firearm.
On June 5, 2011, the infant's parents, Oscar Jimenez and Ivonne Garcia Lopez, were preparing to leave a baby shower at a home in the 400 block of Wisteria Drive, about a half-mile east of the Ravenswood Shopping Center, where two males approached the vehicle and opened fire at 12:50 a.m.
The assailants sprayed the car with bullets, shooting the infant in the head as he was strapped into his booster seat. Lopez and Jimenez were also struck by gunfire, but their 3-year-old son, who was shielded by his mother, was not injured. Both parents survived.
The crime stunned and outraged the East Palo Alto community, with police and city officials vowing to crack down on gangs with the help of multiple law-enforcement agencies.
A neighborhood manhunt led police to arrest Zaragoza, who was 17 years old at the time, and a 16-year-old boy the next block over at a home located in the 400 block of Larkspur Drive. In the process of the interrogations, the 17-year-old made statements that implicated him in the shooting, Cmdr. Jeff Liu said at the time.
Police said they believed the shooting was a possible case of mistaken identity and was in retribution for a May 31 attack in Redwood City on Zaragoza. Members of the Sureno gang allegedly beat him up during an altercation.
The 17-year-old was not initially identified publicly because he was a juvenile, but his name was later released when he was charged as an adult. The 16-year-old's weapons case was handled through the juvenile court system and no further information was released about the proceedings.
Zaragoza's case was fraught with delays. He initially pleaded not guilty in July 2011 to murder and two counts of attempted murder with the infliction of great bodily injury, along with the special circumstances of lying in wait and the use of a firearm in the commission of the crimes.
His defense attorney, Peter F. Goldscheider, sought a dismissal in December 2011 on grounds that evidence presented to the grand jury was insufficient to support the charges. But Criminal Presiding Judge Lisa Novak rejected the motion to dismiss.
A grand jury indictment charged Zaragoza and another man, Eric Vargas, with the infant's murder. Judge Jonathan Karesh dismissed the charges against Vargas on Feb. 17, 2016, but he remains in prison for 60 years to life after a conviction in one of the Sunny Day gang murders.
The motion to dismiss was denied regarding Zaragoza. He pleaded not guilty in 2017 to revised charges that included murder with a special circumstance of lying in wait; two counts of attempted murder with the infliction of great bodily injury; and use of a firearm. He was also charged with a gang enhancement, conspiracy and shooting at an occupied vehicle. He faced life in prison without the possibility of parole.
The state has several rules for convicting someone of murder even if they do not personally kill anyone or even if they do not intend to kill a victim.
SB 1437, which took effect on Jan. 1, changes the law by limiting the legal bases for convicting someone of murder, according to a San Quentin Prison Law Office memo.
Two legal rules are affected by SB 1437: "felony murder" and "natural and probable consequences." First-degree or second-degree murder convictions can only take place if a person has acted with malice, which can also be implied when "no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart," according to the memo.
A defendant can be convicted of felony murder if they commit or attempt to commit dangerous felonies and someone is killed in the commission of the crime, without the need for proof of malice. Defendants can also be convicted of murder if they know that another person intends to commit murder and they "aid and abet" the killer.
The "natural and probable consequences" rule takes this further by allowing a defendant to be convicted of second-degree murder if they intended to "aid and abet" some other type of crime that could reasonably and foreseeably result in someone being killed, according to the memo.
But SB 1437 limits convictions based on felony murder and natural and probable consequences. A defendant who does not actually kill now cannot be presumed to have acted with malice just because they participated in a crime.
Under the new law, a person may be convicted of first-degree felony murder only if the prosecutor proves one of a few conditions: the defendant was the actual killer; the defendant, although not the actual killer, acted with the intent to kill or aided, abetted, counseled, induced, solicited, requested or assisted the actual killer; the defendant was a "major participant" in the underlying felony and acted with "reckless indifference" to life; or the victim was an on-duty police officer. A person also cannot be convicted of murder as an aider and abettor under a "natural and probable consequences" theory unless the prosecutor proves one of the previously mentioned requirements.
"We had argued in the indictment that it didn't matter who the shooter was. He had vicarious liability because both agreed to do the assault," Assistant District Attorney Sean Gallagher said.
Zaragoza has spent eight years in county jail. Under California penal code section 4019, anyone incarcerated in a county jail receives one day of credit for every four days of jail time as time off for good behavior. A term of four days is deemed to have been served for every two days spent in "actual" custody. Therefore, Zaragoza has spent the equivalent of 16 years of "actual" custody time, Gallagher said. The punishment for assault with a deadly weapon involving a gun is three to 12 years in prison. Judge Stephanie Garratt agreed to release Zaragoza with credit for time served and five years of supervised probation.
Gallagher said that Zaragoza did not express remorse in court, but he believed that the now 25-year-old was sorry for his crimes. He had expressed so through his attorney and in other ways, and he was "most assuredly" trying to turn his life around, the prosecutor said.
Gallagher did not elaborate on what the infant's parents felt about the plea deal. They were not in court on Thursday, but prosecutors have kept in touch with the baby's family throughout the proceedings. The family could not be reached for comment.
"This was obviously a complex and complicated case," Gallagher said, adding that the story might not be over. It is possible that someone else will be tried for the infant's death.
"There's no statute of limitations for murder. On some open murder cases, there's always hope," he said.
Goldscheider, Zaragoza's attorney, did not return a call for comment.
East Palo Alto police, who had worked quickly to apprehend Zaragoza after a neighborhood manhunt, declined to comment on the outcome.
"We don't know anything about any plea deal or release so we can't comment," Cmdr. Liu said.
City Councilman Ruben Abrica said he remembers the tragic event but had no comment on the case. Current Mayor Lisa Gauthier, also did not return requests for comment.