A state appeals court in San Francisco today upheld a second-degree murder conviction for a gang member who served as the driver in a fatal attack on a rival gang member in Redwood City in 2005.

Faustino Ayala, 24, a member of the Sureno gang, was convicted in San Mateo County Superior Court in 2008 and sentenced to 40 years to life in prison for his role in the murder of Francisco Rodriguez, 21.

The conviction was unanimously upheld by a three-judge panel of the Court of Appeal.
Rodriguez, a member of the rival Norteno gang, was standing in front of his apartment with his brother-in-law and a friend on July 5, 2005, when Ayala, then 20, drove by in a car containing four or five younger alleged Sureno members.

Prosecutors claim that Josue Orozco, then 14, left the car and shot Rodriguez in the back of the head from about 8 feet away as Rodriguez, who walked with a limp, tried to escape. Orozco then allegedly ran back to the vehicle, which sped away.

Orozco, now 19, has also been charged in the slaying and is the young person ever to have been tried as an adult for murder in San Mateo County. His first trial ended in a mistrial last year and he is due to return to court in June for setting of a new trial date.

Three other youths who were in the car were found liable in juvenile court and are now in the custody of the California Youth Authority.

Ayala was convicted under a legal theory that the murder was a “natural and probable consequence” of a planned attack by the Sureno gang members.

He argued in his appeal that he did not intend to kill anyone, did not know there was a gun in the car and knew only the car contained a baseball bat.

But the appeals court panel said the jury could reasonably have concluded that all the car occupants knew about the gun.

The court also said that even if Ayala didn’t know about the gun, “In the context of a gang war, a jury could rationally conclude that an attack by six gang members wielding a baseball bat upon rival gang members could escalate into a fatal confrontation.”

Ayala’s attorney in the appeal, Ozro Childs of Santa Rosa, was not immediately available for comment.

Ayala was sentenced in January 2009 to an additional two years in prison after he pleaded no contest in 2008 to a charge of assaulting two sheriff’s deputies while he was awaiting trial in county jail.

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