SAN CLEMENTE : Murder Defendant Described as ‘Patsy’

The young man who drove the car from which shotgun fire wounded a 4-year-old girl last Christmas Eve in San Clemente was portrayed by his attorney Monday as a “patsy” for gang members.

In opening statements, defense attorney Leroy Martin described Floyd Avery, 19, as a “quiet, timid” teen-ager who strove to get along with gang members in both San Juan Capistrano and San Clemente, since he often drove through both cities.

Martin told the jury of eight women and four men that a member of the San Juan gang, who is also Avery’s friend, planned a drive-by shooting and was looking for someone ignorant enough to drive. They found that person in Avery, he said.

“The whole evening’s activities paint a picture of a person who didn’t stand up for himself, someone who was not acting sensible, not smart,” Martin said. “Stupid, if you will, but not criminally.”

When a gang-member friend from San Juan suggested they go cruising, Martin said, Avery wanted to comply. While he was talking to his friend, two other gang members got into his car for the ride.

“Floyd Avery was the perfect patsy,” Martin said. “A patsy is the person left holding the bag when the real culprits are gone.”

Martin said Avery didn’t know about the 3-foot-long, sawed-off shotgun until one of his passengers approached a group of men standing on a San Clemente street and pulled the trigger. The shotgun jammed that time and the man got back in the car with directions for Avery to drive around the block, he said.

After Avery saw the shotgun, he became afraid for his safety and did what the gang members told him, Martin said. The next stop was the 100 block of Avenida Pelayo in San Clemente, where Prisca Caudillo, 4, was playing on the second-floor balcony of a neighbor’s apartment.

A single shot, aimed at four men standing under the balcony, sprayed Prisca with shotgun pellets in the face and upper torso about 7:30 p.m. Christmas Eve. She was released from the hospital five days later.

Three juvenile gang members have been convicted in connection with the drive-by shooting, San Clemente’s first to result in injuries.

Avery faces 19 charges, including attempted murder and allowing a passenger to discharge a weapon from his vehicle, and could face up to 18 years in prison if convicted.

Avery was being held in Orange County Jail on $250,000 bail. Attorneys expect to present closing arguments Thursday.