But Ovando elected not to testify when the judge would not guarantee that he would preclude the prosecutor from telling the jury, if he did, that Ovando was a gang member. Czuleger had barred prosecutors from using the existence of anti-LAPD gang graffiti on the building and Ovando's gang membership to argue to the jury its theory of motive--that this was a gang hit. He ruled that the prejudice of gang evidence to Ovando outweighed its probative value to the prosecution. But he said it might become relevant as rebuttal if Ovando testified that he had been in the building for an innocent purpose.
Toister's argument to the jury was that the police account was implausible.
But the prosecutor, Deputy Dist. Atty. Frank Lukus, argued that there was no reasonable alternative explanation.
"What would [defense] counsel have you believe?" he asked. "That they found this guy on the street, dragged him up there and shot him for some obscure reasons of their own?"
When the jury came back with a guilty verdict, the prosecutor wrote a searing memorandum, focused on the gang evidence and asking the judge to impose the maximum term.
The prosecution had offered a 13-year deal in return for a guilty plea before trial.
Going to trial cost Ovando 10 more, as Judge Czuleger imposed a 23-year term.
Defense lawyer Toister said she had learned the hard way that going to trial was not necessarily the best course for an innocent client. "My first felony jury trial," she explained: "Innocent guy gets convicted. Gets the [maximum sentence]. My third felony jury trial: Innocent guy gets convicted. Gets the max. Now, why would I tell anybody, 'Don't plea bargain because you're innocent?' "
But such a decision is the client's and, in this case, Toister had agreed with Ovando's desire to take his chances. She said she thought he might do better than the deal, even if he were convicted.
The reason was that he cut such a pathetic figure. Repeatedly shot by police, palsied, confined to a wheelchair, he was hard to imagine as a public safety threat.
But in hammering him, Czuleger cited an aggravating factor--the defendant's attitude.
"Most apparently," he observed, "the defendant has no remorse."