As his mother wept silently Wednesday morning, defendant Anthony
Frausto admitted that he lied repeatedly to police in a taped
interview, admitted that he was a Norte
ño gang member, admitted that he was armed the night Luis
Bautista was killed and admitted that he shot Bautista.
San Martin – As his mother wept silently Wednesday morning, defendant Anthony Frausto admitted that he lied repeatedly to police in a taped interview, admitted that he was a Norteño gang member, admitted that he was armed the night Luis Bautista was killed and admitted that he shot Bautista.
Frausto, 20, is on trial accused of killing Bautista, 19, of Gilroy in a gang incident Sept. 30, 2005. He was arrested three days later, when he went to the Morgan Hill Police Department because his mother told him the police wanted to talk to him. He has since been held in the Santa Clara County Jail without bail.
Defense attorney Andrew Tursi called Frausto as his only witness for the defense. Frausto took the stand Wednesday morning, and Tursi led him through his history with gangs and incidents leading up to Bautista’s death.
Frausto told jurors that he went with his friends Evan and Alex Mensing and Tom Lavare from Evan’s house to Tennant Station shopping center, planning to see a movie at the Cinelux Theaters.
During cross examination, Deputy District Attorney Stuart Scott repeatedly asked Frausto if he had lied about various statements given to police during his taped interview, including the statement that he was alone when he shot Bautista. Frausto answered calmly each time that yes, he had lied.
Frausto said he got the .357 magnum revolver used to shoot Bautista from Evan Mensing. He said his friend had given him the gun to sell, but, he said, he “felt safe with it, so I kept it.”
“I’d been attacked before, I’m homeless, so I felt safer,” he said.
Jurors listened intently as Frausto, dressed in a white button down shirt with a tie and brown pants, told his story.
Before the encounter, Frausto testified, he and his three friends were walking east in the parking lot behind the Safeway grocery store and JoAnn’s Fabrics in Tennant Station shopping center sometime after 8pm but before 10pm. They were on their way to the movies, and since the Mensings lived on West Middle Avenue south of Tennant Station, they took a shortcut through the parking lot.
As they were walking, he said, he heard a noise behind him, possibly voices.
When he turned, he saw six people getting out of a white pickup truck. The first one out Bautista, who had a knife in his hand.
Bautista yelled, “Sur,” at him, Frausto said, which MHPD Det. Mindy Zen testified Tuesday was perceived as a challenge when yelled at a Norteño by a Sureño. The prosecution and defense have agreed to recognize Zen as a gang expert during the trial.
“They were yelling, I don’t understand Spanish but I understand ‘chupeta’ and ‘sur,'” Frausto said.
He turned back to the group of six who he believed were Sureño gang members, based on their blue clothing and their comments, Frausto said.
Frausto began to walk back toward the other group, he said, and his three friends started after him. The two groups met about 10 feet apart, he said, and continued “trash talking” for a little while, though he could not recall exactly how long.
Then, he said, Bautista moved the knife, which he had kept at his side, up higher, close to his waist, though not with his arm extended, and moved towards him, not walking, maybe running, Frausto said.
“As he came toward me, I pulled out the gun,” he added. When Tursi asked him why, “Because I didn’t want to be stabbed,” he answered.
Tursi asked him if he thought he could be killed, if he was afraid with his safety.
“Yes,” he answered. “Yes, I was very afraid.”
He then pulled the trigger, shooting Bautista several times, but he could not recall how many. Everyone ran, he said, except Bautista, whom he saw stumble back. He realized he’d shot Bautista, but he turned and ran, tossing the gun into some bushes in the alley between the Safeway and the laundry room.
The next day, he retrieved the gun, returned it to Evan Mensing and never saw it again, he testified.
Scott, during cross examination, went over repeatedly Frausto’s choice to wear red clothing and to arm himself. Frausto testified that yes, he did choose to live the life of a Norteño gang member. Asked if he really was afraid, knowing he had a revolver in his waistband facing a rival with a knife, Frausto replied, “No, not at that moment.”
After calling 10 witnesses, the prosecution rested its case before noon on Tuesday.
On Monday, jurors heard testimony from 17-year-old Mario Flores, who is currently incarcerated in Juvenile Hall. He identified himself as a Sureño gang member and said he was a part of the group that was with Bautista when he was shot.
The Sureño told the court he could not identify the shooter because it was dark and because the group of rival gangsters was far away from his group. He said he did have a knife in his pocket at the time, but also said he did not pull it out until after he heard the gunshots.
MHPD Det. Kevin Beilmann on Tuesday told the court that videotape from security cameras inside the Safeway showed the Sureño running through the store. Other video from outside cameras showed two subjects running past, he said.
Frausto’s mother, family and friends declined to comment outside the courtroom Wednesday.
The trial is in recess until today, when attorneys will make their closing arguments. The case could be in the hands of the jury by this afternoon or Monday.
