A 24-year-old Ventura gang member convicted of attempted murder two years ago was granted a new trial Wednesday after a judge found the defense attorney failed to present evidence that could have cleared his client’s name.
Danny Zizumbo, who has been serving a 38-year prison sentence for his alleged role in a January 1996 drive-by shooting in east Ventura, is being held at Ventura County Jail on $250,000 bail pending a second trial.
Prosecutors said they are considering whether to appeal the decision by Superior Court Judge Brian J. Back.
“We are reviewing the court’s ruling carefully and will decide in a few days,” said Deputy Dist. Atty. Kevin Drescher. “If not, we will proceed to trial. He will be facing the exact same charges.”
A known gang member, Zizumbo was convicted of attempted murder, conspiracy to commit murder and deadly assault after a five-day trial in August 1996.
Prosecutors argued that he shot a teenager in the leg and chest during a gang-motivated attack. They presented evidence to show that Zizumbo was the man wielding a semiautomatic gun from the back of a moving van.
The two other gang members who also were in the van were later arrested in the attack. Eric Martinez, 19, pleaded guilty to assault charges and was sentenced to a year in jail and five years probation. Victor Ocegueda, 16, was tried in juvenile court, and his records are sealed.
In statements to police after the shooting, both named Zizumbo as the gunman.
But troubling questions about the case were raised on appeal--questions serious enough for the California Supreme Court to send the case back to Ventura County for a hearing on whether Zizumbo was represented by effective trial counsel.
Back presided over a two-day hearing in August in which Zizumbo’s appellate attorney, Leonard Chaitin, presented evidence that was not introduced by Woodland Hills attorney Wayne Redmond.
Redmond did not return calls to his practice Wednesday.
In the August hearing, Chaitin called witnesses to testify about the shooting, which occurred on Jan. 8, 1996. According to testimony, Daniel Rodriguez, then 16, was walking to a friend’s house in the 1300 block of Arrowhead Avenue with three other teens when shots were fired from a white van. Rodriguez was the only one hit.
The group of teenagers rushed Rodriguez to the friend’s house, where a relative called 911.
During the August hearing, Chaitin played a tape recording of the 911 call in which several witnesses--including Rodriguez--are heard identifying Ocegueda as the gunman, not Zizumbo.
But those statements and the 911 tape were never presented to the jury during Zizumbo’s trial. That omission was cited by Back in his 24-page written ruling:
“When questioned as to why he did not incorporate into the defense the identification of another shooter, defense counsel indicated that due to his anticipation that witnesses would change their respective stories, he felt that it would not be beneficial,” Back wrote.
“There was no sound tactical reason for failing to elicit testimony regarding the identification of another shooter.”
As for not admitting the 911 tape, Redmond “seemed to acknowledge that the failure to do so was critical” during his testimony at the August hearing, Back said.
Other evidence that should have been presented to the jury, the judge said, included statements by witness John Winter. On the day of the shooting, Winter also identified Ocegueda as the gunman during an interview with a detective.
“When asked, ‘How do you know that?’ Winter responded with ‘because I seen him,’ ” Back wrote. “To the question, ‘You seen him with the gun?’ Winter responded, ‘Yep.’ ”
“The point is this,” Back wrote. “Why didn’t defense counsel put on evidence of the ‘other’ shooter and leave the jury to decide which statements were true?”
In addition to the omission of those statements, Back said Redmond failed to object to statements his client gave to police that were in violation of his Miranda rights.
Officers illegally interrogated Zizumbo for 2 1/2 hours without reading him his rights, the judge said. During the interview, Zizumbo acknowledged being in the van during a trip to a fast-food restaurant--a statement used during the trial.
Two reviewing courts have since agreed that the so-called “admission” should not have been allowed.
“Counsel’s failure to move to suppress or object to the introduction of admissions was inexcusable,” Chaitin wrote in one appellate brief.
In concluding his ruling, Back said Redmond “abdicated a portion of his job as the advocate on behalf of [the] defendant. . . . There was significant evidence available to defense counsel indicating that victims had identified another shooter.”
Failure to present that evidence, Back ruled, constitutes “ineffective assistance of counsel” and establishes grounds for a new trial.
Laurie Levenson, assistant dean at Loyola Law School, said such rulings are uncommon “because the standard is so strict.” The law requires citations of specific errors by the lawyer as well as proof that those errors compromised the client’s fair trial rights, she said.
“It has to be the type of error that really undermines our confidence in the verdict,” she said.
During the proceedings, it is often impossible for the trial judge to know a lawyer is keeping potentially significant information from the jury, Levenson said. She added that it is also not the role of the judge to tell a lawyer how to try his or her case.
Chaitin said Judge Edward F. Brodie bore no responsibility for the mistakes made by trial counsel in the Zizumbo trial.
“There is no way Judge Brodie would have known about it,” he said. “I didn’t see anything that Judge Brodie did that would have denied Zizumbo a fair trial.”
After the hearing, Chaitin praised Back’s ruling as well as the order by the Supreme Court. Chaitin said his client’s family was also relieved by the decision.
Zizumbo’s first prosecution had a significant and tumultuous effect on his family.
Three months after he pleaded not guilty to the attempted murder charges, managers of a federally subsidized housing development in Cabrillo Village evicted his relatives.
During another unusual court proceeding, the managers argued that Danny Zizumbo and his brother, Edward, had terrorized the close-knit community for too long as a result of their gang ties.
Court Commissioner John H. Pattie ruled that the family could be evicted on those grounds. The family appealed the eviction and lost in a 2-1 decision.