By Elise Kaplan / Journal Staff Writer Updated: Tuesday, October 2nd, 2018 at 9:02pm
While the core of the state’s case against Fabian Gonzales rests on his ties to a local street gang and retaliation for threats prosecutors say he made toward rival gang members, Gonzales’ defense attorney has filed motions recently that cast doubt on that narrative.
The District Attorney’s Office has said that 10-year-old Victoria Martens was raped and strangled in her mother’s apartment in August 2016 because Gonzales threatened rival gang members after a fight at a barbecue a couple of days earlier.
Prosecutors have written that “the nexus between defendant’s threats to rival gang members and the retaliation that ensued and led to the homicide of Victoria is more than apparent” and claimed repeatedly that Gonzales is a member of the notorious street gang “Thugs Causing Kaos.”
He is charged with reckless child abuse resulting in death and several counts of tampering with evidence.
But motions filed by Gonzales’ attorney, Stephen Aarons, question Gonzales’ gang connections.
“There is no evidence that defendant has ever participated in gang activities or assisted a member of any known gang,” he wrote in a motion. “Defendant did not retaliate for receiving a black eye from a girl, and it is illogical to think he would retaliate in his own home or that some fictitious gang members would retaliate because he was punched in the eye by a girl.”
In response to emailed questions, Aarons said he believes the District Attorney’s Office is struggling to come up with a motive for the crime.
“They are NOT saying that Fabian or a member of his ‘gang’ retaliated after he got beat up and hired a hit man to strangle his new girlfriend’s daughter in her bedroom,” he wrote. “Rather, the prosecution is claiming that a RIVAL gang – the judge asked at a recent hearing whether the state thinks there is another gang besides Fabian’s or not – retaliated against something Fabian did after he was beat up at the barbecue party a few days before the murder. The crux of their argument is that an as-yet unidentified gang retaliated when Fabian made threatening texts for several hours after the BBQ.”
During a stint at the county jail in September 2006, Gonzales did self-identify as a member of the gang “Kriminal Minded Kaos” in an inmate identification sheet, but he said at that time that the gang had disbanded.
Gonzales, then 21, said that he joined KMK when he was 17. In response to the question, “What did you expect to gain by joining?” Gonzales answered, “I didn’t expect anything I just wanted to show my brother that I love him and I am down for him.”
Gonzales has “KMK” tattooed on his abdomen and “thug” and “life” tattooed on his forearms, according to booking sheets.
In response to questions about whether the group is “at war” or enemies with other groups Gonzales said, “The group is gone.”
A spokeswoman for the Metropolitan Detention Center said that was the only formal interview Gonzales did with the jail’s gang security officers. After subsequent arrests, she said, officers would have kept an eye on Gonzales for any new gang tattoos and would have talked with him about any changes in affiliation.
If the officers had found signs that he had joined another gang, they would have had him do another formal interview.
Although initially Gonzales, his cousin Jessica Kelley and Victoria’s mother, Michelle Martens, were charged with rape and murder in the killing of the little girl, last month prosecutors announced a new theory about what happened.
Kelley has said she was high on methamphetamine and baby-sitting Victoria when a “well-dressed” Mexican man came to the apartment, asked for Gonzales by his street name, and then went into Victoria’s bedroom and killed her.
In the motions, attorney Aarons downplayed the fight at the barbecue and said interviews with the hosts show that they didn’t believe he was referencing TCK.
“Further, the people at the barbecue party do not claim to be gang members and did not take defendant seriously when he was upset for getting punched in the eye,” he wrote in a motion.
The woman who lived in the home and who Gonzales is said to have threatened is not listed in the Metropolitan Detention Center database of gang members, according to a jail spokeswoman.
Prosecutors say the woman’s boyfriend is in a rival gang, but the man told the defense team’s investigator that he had “left that nonsense when I was a kid,” according to an interview transcript.
A spokesman for the DA did not answer questions about Gonzales’ gang ties.
The Court of Appeals is reviewing an appeal by the state on the judge’s ruling excluding statements and other evidence.
Judge Charles Brown will rule on Aarons’ motions after the case returns to the 2nd Judicial District Court.
Along with gang retaliation, DNA has also been a focus in the evolving case.
Over the summer, the District Attorney’s Office said it found a partial DNA sample – likely from saliva, hair or skin cells – from an unidentified male on Victoria’s back. More recently, it has said that male DNA was also found under her fingernails and around her neck.
Last week, Aarons asked for the state to be sanctioned for not turning over all the DNA evidence, a charge prosecutors have disputed.
“The defendant’s motion is not only without merit but it is in fact wholly frivolous and full of factual misstatements,” prosecutor Greer Rose wrote in response.
Although Aarons presented the theory that a mixture of DNA from at least five individuals was found on the crotch of a jumpsuit worn by Kelley and could have been transferred to Victoria, Rose said that was “not only outlandish but completely divorced from the actual evidence.”
The jumpsuit in question did not belong to Kelley. A DA spokesman said the jumpsuit possibly belonged to Victoria and the DNA was not found on the crotch, but on the bottom and the straps.
While the criminal case is ongoing, Aarons has submitted a tort notice of claim to the city to protect Gonzales’ right to sue for a violation of civil rights.
On the notice, he says the city is at fault because Gonzales was “wrongfully arrested and detained for the murder of Victoria Martens. Police extracted false confessions and withheld evidence.”