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Man charged with killing infant Izack Garcia in East Palo Alto strikes plea deal

Fatal shooting of 3-month-old in car shook community in 2011

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.

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Follow the Palo Alto Weekly/Palo Alto Online on Twitter @PaloAltoWeekly and Facebook for breaking news, local events, photos, videos and more.

Editor's note: This article incorrectly stated Fabian Zaragoza's plea. Palo Alto Online regrets the error.

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Comments

26 people like this
Posted by Incredible
a resident of Crescent Park
on Apr 16, 2019 at 9:20 am

From the PA Weekly account...

> Under the new law, a person may be convicted of first-degree felony murder only if the prosecutor proves one of a few conditions: (1) the defendant was the actual killer; (2) the defendant, although not the actual killer, (3) acted with the intent to kill or aided, abetted, counseled, induced, solicited, requested or assisted the actual killer; (4) the defendant was a "major participant" in the underlying felony and acted with "reckless indifference" to life; or (5) 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.

> Zaragoza has spent eight years in county jail...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.


Incredible that the DA was unable to prove (2) (3) (4) without a resonable doubt.

The sentence seems light...8 years served in county jail + 5 years of probation.

A proficient criminal defense attorney + SB 1437 ensures lighter sentencing guidelines for 1st degree murder.

It's almost as though inner-city & community gang members had a lobbyist to promote this state legislation.

So much for the concept of crime deterrent(s) being based on strict sentencing & punishment mandates.

People are simply going to do what they are going to do regardless of the consequences...as many always & already have.

A State Senate Bill to protect gang-related shootings & active participants is not a good measure for California.






12 people like this
Posted by Condolences To The Garcia Family
a resident of East Palo Alto
on Apr 16, 2019 at 12:22 pm

^^^^ Thank you for sharing your concerns regarding this tragedy & lack of jurisprudence. Somewhat surprised to hear it coming out of Crescent Park of all places.

Most Palo Altans don't care about EPA issues & they only raise concerns when and if it impacts them directly. And these are often superficial priorities not directly related to personal safety issues and/or the overall well-being of a community.

Palo Alto being a relatively safe city allows its residents to focus their petty concerns on cellphone towers, RR tracks, municipal parking, office development & various recycling efforts.

Now if something like this had occurred within their city limits chances are many PA residents would be outraged & clamoring for progressive measures to end such judicial leniencies.

Except that PA is a liberal/educated community that abhors capital punishment & extended incarcerations because these measures are considered 'inhuman' as per their liberal perspectives.

That is until their Teslas & BMWs get broken into at Stanford Shopping Center. Then there are cries of 'Oh the humanity...we've lost our Nordstrom shopping bags.'

The material world is a primary PA focus when not costuming as social 'do-gooders' with little to constructively contribute.

Our family's condolences to the Garcia's for this tragic & unnecessary loss.



4 people like this
Posted by Uptown VS Downtown
a resident of Old Palo Alto
on Apr 16, 2019 at 1:35 pm

> Most Palo Altans don't care about EPA issues & they only raise concerns when and if it impacts them directly.

That is understandable to a certain extent. PA & EPA share different demographics, personal wealth factors, educational priorities & lifestyle choices.

Palo Alto & EPA are anomalies from the classic uptown/downtown delineations...EPA in this case is uptown while PA is downtown. Usually it's the other way around (i.e. Chicago, New York etc.). EPA just happens to be north of PA.


12 people like this
Posted by Incredible
a resident of Crescent Park
on Apr 16, 2019 at 6:57 pm

> Most Palo Altans don't care about EPA issues & they only raise concerns when and if it impacts them directly.

Concurring. That is 'The PA Way'.

>> Palo Alto being a relatively safe city allows its residents to focus their petty concerns on cellphone towers, RR tracks, municipal parking, office development & various recycling efforts.

Concurring. What else do most of them have to be concerned about? Red hats at coffee shops?

>>> The material world is a primary PA focus when not costuming as social 'do-gooders' with little to constructively contribute.

Concurring again. It comes with the teritory.

>>>> That is understandable to a certain extent. PA & EPA share different demographics, personal wealth factors, educational priorities & lifestyle choices.

Hard to argue this point.

My neighbors tend to represent the first three points. Most are 'newbies' to the neighborhood & primarily concerned with not getting burglarized by 'outsiders'. They are vey protective of their inner world of Veblen-Land.

I inherited my house in CP from my grandmother. I resided for a short time in EPA & can vouch for the cold-hearted superficiality of many Palo Altans.

House will soon be put on the market...moving to Montana.


25 people like this
Posted by Some Places Are Safer Than Others
a resident of Evergreen Park
on Apr 17, 2019 at 2:03 pm

This would never happen in Palo Alto.

We don't have gangs marking off territory or neighborhoods (i.e. the Crypts of Southgate VS the Bloods of Evergreen etc.).

The streets of Palo Alto are far safer than other communities + Palo Alto as a whole is very anti-firearm.

To mistakenly open fire on a family (any family) returning home from a shower (or any social/family event) is morally reprehensible & the punishment should be far harsher.

[Portion removed.]


Like this comment
Posted by Hmmm
a resident of East Palo Alto
on Apr 17, 2019 at 10:13 pm

Some Places - your post is not based on fact. The fact is, East Palo Alto is safer than most Calif cities and has a lower violent crime rate than the state average. I also remember when Your city had a few gangs.


10 people like this
Posted by Incredible
a resident of Crescent Park
on Apr 18, 2019 at 9:19 am

> I tell my children NEVER to venture out that way.

>> The fact is, East Palo Alto is safer than most Calif cities and has a lower violent crime rate than the state average.

^^^ Best to always let good judgment & common sense prevail regardless of where one goes.


source: Web Link

2019 Crime in East Palo Alto, California

Crime is ranked on a scale of 1 (low crime) to 100 (high crime)
East Palo Alto violent crime is 35.6. (The US average is 22.7)
East Palo Alto property crime is 29.4. (The US average is 35.4)

Violent crime is composed of four offenses: murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault.

Property crime includes the offenses of burglary, larceny-theft, motor vehicle theft, and arson. The object of the theft-type offenses is the taking of money or property, but there is no force or threat of force against the victims.


source: Web Link

^^^ The RE industry take on crime in EPA with dates of 2019 reportage.


Sorry, but further commenting on this topic has been closed.

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