Jury Splits Decision in Murder Case

OAKLAND, CA - A man who fatally shot an unarmed man in Oakland's Fruitvale district in 2013 was acquitted of first-degree murder today but was convicted of gun charges that could still result in a lengthy state prison term.

After three and a half days of deliberation, an Alameda County Superior Court jury found Jose Lepe, 32, not guilty of first-degree murder for fatally shooting 20-year-old Michael "Mikey" Stenger in the 3100 block of Coolidge Avenue at about 11 p.m. on Dec. 1, 2013. But jurors deadlocked on whether to find Lepe guilty of a lesser charge, with 11 voting for second-degree murder and one voting for voluntary manslaughter, so Judge Rhonda Burgess declared a mistrial on that count.

However, jurors found Lepe guilty of firing a gun from a motor vehicle and of illegally possessing a gun, since he wasn't supposed to own a gun because he'd previously been convicted of domestic violence. Because the shooting from a motor vehicle count carries an enhancement clause that Lepe intentionally caused death by discharging a gun, he faces up to 32 years in state prison when Burgess sentences him on those counts on June 15.

At that same hearing, the Alameda County District Attorney's Office will announce whether it will prosecute Lepe a second time and seek a second-degree murder conviction, which could result in an even longer prison sentence.

In his closing argument in Lepe's trial last week, defense attorney Ernie Castillo said jurors should find Lepe not guilty of murder because Stenger had shot Lepe in 2012 and when he saw him on the night of Dec. 1, 2013, he feared that Stenger was going to shoot him again.

"This was not a cold-blooded killing but instead was a spontaneous shooting that was done out of fear and panic," Castillo said. Castillo admitted that Lepe shot Stenger but said Lepe thought Stenger was there to kill him because he believed that Stenger was the person who had fired 13 shots at him at 35th Avenue and Davis Street in Oakland the night of Feb. 22, 2012, and had come to finish him off.

But prosecutor Patrick Moriarty said he doesn't think Lepe shot Stenger in self-defense, noting that Lepe shot Stenger in the head and Stenger didn't have a gun. "He was shooting to kill. That's not a warning shot," Moriarty said. The prosecutor told jurors he thinks Lepe premeditated the shooting and should be found guilty of first-degree murder.

The fatal shooting of Stenger was captured on surveillance camera footage that was shown to jurors multiple times during the brief trial. Moriarty said Stenger, who was unemployed and homeless, wound up living in the same apartment with Lepe's ex-girlfriend and her 1-year-old daughter, who was Lepe's child, because he was a family friend and needed a place to stay.

He said that in a twist of fate, a friend of Stenger's dropped him off outside the apartment complex at the same time that Lepe, who lived elsewhere and had borrowed a friend's car, pulled up to the complex to pick up his ex-girlfriend and their daughter because his ex-girlfriend wanted him to buy diapers for her.

Castillo said Lepe shot Stenger because Stenger's left hand appeared to be in his pocket and he thought Stenger was reaching for a gun. Castillo said today that the jury's verdict leaves "a bad taste in my mouth because it's a victory that Mr. Lepe wasn't convicted of murder but on the other hand he faces a sentence that's equivalent to the term for first-degree murder." Castillo said he thinks the prosecution "duped" jurors into thinking that the firing a gun from a motor vehicle charge was a lesser offense that they could compromise on and jurors weren't told that the charge carries a lengthy sentence.

The defense lawyer said he thinks there are some constitutional issues involved in the gun count and enhancement clause and he will seek to convince Burgess to sentence Lepe to less than 32 years to life.

--Bay City News; Image via Shutterstock