Posted by NORTH STAR NEWS on January 26, 2005 at 21:11:43:James Ortega and Malik Alayube, the teenagers accused in last year's Jack in the Box slayings, will be tried for murder, a Superior Court judge ruled Tuesday.
After Santa Clara County Judge Ron M. Del Pozzo reached his decision, he turned toward the courtroom gallery, past the two teenage boys shackled before him.
``I can see the pain in your faces on both sides,'' Pozzo said to the mothers and fathers in his courtroom. ``There are no winners or losers in this case.''
For two days, members of four families have crowded into a Hall of Justice courtroom in San Jose for a preliminary hearing to determine whether there is enough evidence for a trial. They heard how two of their sons lost their lives and two other sons were charged with murder.
Ortega, now 15, will be the youngest murder defendant to be tried in adult court in Santa Clara County history. He was 14 when authorities allege he gunned down Diego Gutierrez and Miguel Romero, both 17, on Jan. 3, 2004, at a Jack in the Box in East San Jose. The confrontation began after rival gang signs were exchanged between Norteños and Sureños, San Jose's dominant Latino street gangs.
Alayube, now 19, also is charged in the slayings.
Throughout the preliminary hearing, Ortega, clad in a green sweatshirt and dark slacks, sat stoically near his public defender, Melinda Hall. He glanced briefly at the victims' family members when they filed into the courtroom Tuesday. Alayube, dressed in a red jail jumpsuit, smiled at his father before taking a seat next to his public defender, Chris Mattison.
San Jose police Sgt. Byron Jones testified that Ortega -- an alleged Norteño member -- became angry after a chair struck him in the nose during a melee inside the Jack in the Box. He said Ortega reached for a .22-caliber pistol Alayube had given to him that morning and opened fire.
Diego was shot once in the back and Miguel three times in the back. Their friend, Conrad Salas, also was shot in the arm and back but survived, prosecutor Stuart Scott said while holding photos of the shooting victims.
San Jose police gang investigator Gregory Lombardo testified officers knew Ortega and Alayube associated with members of the Varrio Horseshoe Norteño gang and assaulted Sureño gang members.
Lombardo said an officer once found a handwritten rap or poem with Alayube that detailed how Norteños would shoot and kill Sureños and their babies.
``There is a war going on between these Norteños and Sureños,'' Lombardo said. ``When the gang signs are thrown, that's when the problems start. . . . Not only do they respond, they respond with violence.''
After the hearing, Ortega's mother left the courtroom weeping. A few minutes later, Miguel's mother asked the prosecutor if she could see the homicide photos of her son.
Ortega and Alayube are scheduled to be arraigned on murder and attempted murder charges with gang enhancements on Feb. 7. Ortega faces an additional enhancement for using a gun.
If convicted, both could face life sentences in prison
