The arrests were made thanks to an FBI-organized task force working out of the Mountain View police department which re-interviewed dozens of witnesses when the case was reopened last year. Major breaks in the case came with the help of something police say is rarely used in Santa Clara County — a grand jury investigation — something more commonly used by the FBI. Witnesses who refused to talk to police in the past were subpoenaed and successfully made to testify under oath in front of the grand jury with the threat of perjury charges hanging over them.
"We always felt like people weren't giving us information they had," said police spokeswoman Elizabeth Wylie.
Fernandez was fatally shot while walking down Rengstorff Avenue near Latham Street on Sept. 24, 2004 with his friends. Wylie said Fernandez, a junior at Los Altos High School who had told police he was a Sureno gang member, approached the car and was allegedly shot multiple times in the torso by 24-year-old Mountain View resident Giovanni Duarte, a self-admitted member of the rival Norteno gang called "Varrio Mountain View," or "VMV," Wylie said. He was 17 at the time.
"We think the motive was gang-related but a random act of gang violence," that did not specifically target Fernandez, Wylie said.
Police quietly arrested Duarte March 23 and he is being held without bail. He faces 50 years to life in prison on charges of gang-related murder.
And police arrested Mountain View resident Anthony Figueroa, 23, at his Leong Drive home on Friday for allegedly driving his family's car to enable the drive-by-shooting. Figueroa, another member of the VMV gang, also faces 50 years to life in prison for gang murder charges, said Frank Carruba, a deputy district attorney for Santa Clara County.
Also arrested Friday was Figueroa's father, Arthur Figueroa, 49, a parks maintenance worker for the city of Mountain View whom police believe has ties to the VMV gang. Carruba said Arthur Figueroa "lied regarding contact and conversations with murder suspect Marlan Ruiz pertaining to grand jury proceedings." Because of a gang enhancement and a prior strike on his record, Figueroa faces up to 17 years in prison instead of a maximum of four years for perjury, Carruba said.
Arthur Figeroa was arrested while riding as a passenger in a city-owned vehicle while on the job Friday. He was hired in 2006, and the city "at that time did not do criminal history checks," on prospective employees, Wylie said. "We do now." City management is "reviewing his original application for inaccuracy and in the future will make a determination if discipline up to termination is appropriate."
Police are still seeking the arrest of three others who were riding in the car at the time of the shooting.
Grand jury a 'valuable tool'
The 2004 murder of Fernandez rocked the city and was the only gang-related murder for years. Wylie said police had a bookshelf full of files with leads, witness interviews and suspect profiles but the case "essentially stalled."
After re-interviewing every witness, investigators "started to get new witnesses — people with new information," Wylie said. "They did a ton of surveillance. Ultimately they were able to identify Giovanni as the likely shooter and Figueroa as the driver of the car that day."
Police say they also had the advantage of the suspects being less cautious than they were right after the murder took place, but a big factor was the power of the grand jury to get witnesses talking.
"People who are unwilling to speak to police have a right to turn around and walk out the door," Carruba said. "But with a grand jury investigation, witnesses can be made to show up through subpoena and the presiding judge can compel them to answer questions." Witnesses can also claim their Fifth Amendment right to not answer questions, but only against the possibility of incriminating themselves, Carruba said.
The arrests should send a clear message to the two gangs involved that they "can't get away with murder," Wylie said. "We're not just going to let it go away," Carruba added. "These cases are going to be prosecuted."
The two gangs allegedly involved in the murder each have over 100 members in Mountain View, Wylie said. Surenos have operated in the city about 20 years, identifying themselves with the color blue and the Roman numeral for 13: "XIII." The VMV members use the color red and the Roman numerals for 14: "XIV." VMV is believed to have existed in the city for at least 35 years, Wylie said.
Wylie said the case was the focus of a local gang task force formed in 2010 by the FBI under the Safe Streets Act that is now housed in the Mountain View police building. The team included a pair of Mountain View officers, Sgt. Dan Vicencio and Det. Saul Jaeger, a Sunnyvale police officer and two FBI agents.
"This case has been their focus from the get-go," Wylie said.
Police Chief Scott Vermeer said the arrests were "a success story" for the task force, a form of collaboration that he said was the future of law enforcement.
"It was very frustrating for a number of years that we could not solve this case," Vermeer said. "There is a lot of satisfaction and a lot of pride for all the people involved after so much time and so much work."