Mark Anthony Diaz goes the distance but loses the decision

August 27, 2010 No Comments

Before traveling north for his fight with Erislandy Lara, Danny Perez (center) poses for this photo with his trainer, Hector Gil (right) and Derek Pierce (left), CEO and lead promoter of Rogue Boxing Promotions.

Thursday, Mark Anthony Diaz, the former boxing trainer who allegedly opened fire at the Pacific Coast Boxing gym on April 7, in Vista, Ca. after being barred from the location, had his day in court, San Diego Municipal Court. After being formerly charged with the murder of Hector Gil, a fellow volunteer trainer, and wounding two others, Peter Moreno and Ricardo Gutierrez, Diaz and his lawyers confronted the overwhelming evidence that was presented in 12 masterful stages.

Not to make light of this situation, but our Judicial System is a lot like boxing. First of all, it takes a long time for a boxer to get ready for a match and a similar amount of time for a lawyer to get ready for his day in court. And when they finally meet in front of the judge, the battle is only in its preliminary stage.

Like the defense attorney who battles it out from arrest to arraignment, from Preliminary hearing to actual court case, from the sentencing to the appeals process, Deputy District Attorney Patrick Espinoza went methodically through 12 stages to land every blow that he could throw at his opponent, Mark Anthony Diaz’s defense attorney James Fitzpatrick.

Witness #1: The proceedings got off to a rather shaky start as no one could hear what the first witness had to say. The witness, an ultra shy 14 year-old boy who sat in the family auto talking to his girlfriend on a cell phone while the shooting occured, was intimidated by the proceedings. He heard the shots, established a time-line, and claimed he saw a silver pistol. The description he gave mentioned a stocky gentleman who was wearing a dark sweat shirt with a hood.  Scoring for Round#1: Even or a slight advantage to the defense.

Witness #2: Alexander Castellano was far more credible and testified that he, his family and friends saw this man drive a big Nissan Titan, charcoal grey in color, a lifted truck with off-road, over-sized tires into the same small shopping center directly across from the Pacific Coast Boxing Gym where they happened to be. He testified that this driver drove recklessly and went over a parking divider. The driver then parked his truck in the bottom front corner of the Shopping Center’s parking lot. Ten minutes later, he heard six shots and saw the same man running back to the same truck. He was so close that he heard the man breathing heavily. He said there was a white decal on the center back window of the truck and described the apparel the man was wearing as: a dark hoodie, white socks up over the knee. He said that on the dark sweatshirt was a distinctive “T” Triumph MMA logo. He was fairly certain it was the same man who went by them earlier. He later identified a truck, owned by Mark Diaz, and stated that if it wasn’t the same truck it was a close match to the truck they saw that night. Round #2 went to the prosecution.

Witness #3 and #4, David Santiago and Jose Gonzalez were the buddies who went to dinner with Castellano, Witness #2. They agreed fully with Castellano’s version. They also concurred they had seen this shiny item hanging out of the person’s back pocket. Gonzalez recalled seeing the familiar Titan emblem and seeing that same truck off and on in front of the Pacific Coast Boxing gym. In an attempt to discredit the testimony, the defendant’s lawyer asked if the men remembered the license plate number. Round #3 & #4 went to the prosecutor.

Witness #5, Nicholas Lopez, 17 years-old, said he only lives within walking distance from the gym and got a call from Mark Diaz on the night of the murder to stay away from the gym. Approximately, ten minutes after receiving that call, Lopez heard the gunshots from the direction of the gym. He testified he thought Diaz had sounded a bit upset or down that evening. Again the prosecutor won this round.

Witness #6, trainer/cut man Albert Gamez testified that Hector Gil, the victim, told Gamez in February and March that Diaz was upset with Gil because a boxer by the name of Ricardo Gutierrez, who had recently turned professional, had switched from Diaz over to Gil for training. Gamez also listened to two voice mails from a person who sounded just like Mark Diaz. In these two voice mails were threats on Gil’s life. Round #6 to the prosecutor.

Witness #7, Ricardo Gutierrez said Diaz sued him for a $5,000 breach of contract suit but ended up settling out of court for $1,500. He had also listened to the threatening voice mails from a person who sounded just like Mark Diaz. On the voice mails, the voice threatened to harm Hector Gil if he didn’t settle their differences. Gutierrez said he still feels pain in his leg after being shot. “The bullet shattered my fibula and tibula in half.”

The prosecutor mentioned that the 21-year-old boxer ended his contract with Diaz, who responded by filing a breach of contract lawsuit. Subsequently, Gutierrez entered into a contract with trainer Hector Gil. On April 2, Gil got a threatening phone call from Diaz saying he was going to “bust a cap,” a gangland reference to shooting someone. Another round for the Prosecution.

Witness #8 came from a reluctant source, Peter Scanlon, who told the presiding judge that he didn’t want to be there. He was a bosom buddy of Diaz and had told the police earlier that he saw a semi-automatic pistol inside Diaz’s home. This was the most damaging evidence thus far. Round #8 went to the Prosecutor.

Witness #9, Peter Moreno, testified the bullet that went through Gil hit him in the left shoulder. “It missed my artery by a hair… or there could have been two people dead.” Even though the testimony offered by the witness demonstrated the utter disregard for life of the shooter, there was no real winner or loser in this round.

Witness #10, Hector Gil Jr., the son of the victim, said he ran towards the gym door when the shots ended. He started to chased after the gunman, but then stopped when someone suddenly turned off the lights. He said the suspect wore a dark sweatshirt with a distinctive “T” Triumph MMA logo. The same sweatshirt matching an earlier description and the sweat shirt recovered during a search of Diaz’s home. With his collaboration with the earlier testimony and recovery of the sweat shirt, this testimony turned out to be very important. Round #10 went to the Prosecutor.

Witness #11 was the no nonsense Deputy Sheriff/Homicide Detective Mark Palmer. He had information from an eyewitness who said they lived nearby, heard the shots and went directly to a window overlooking the gym’s parking lot. This witness stated emphatically that he was certain it was Diaz, “I don’t believe it, I know it.”

Palmer also stated that gunshot residue was found on the steering wheel of Diaz’s truck and on the black sweat shirt which they confiscated at his home in Carlsbad. This was definitely a 10-8 round for the Prosecutor.

Witness #12 was Susan Marie Smith, Mark Diaz’s girlfriend for the past six years. She, more than any other witness, took her sweet time to mull over each response. She didn’t help Diaz’s cause any when she answered: “He left the house around 8:30 p.m. and didn’t arrive home until after 10 p.m.” The prosecutor then asked, “Did he tell you where he was?” “No,” was her response. The idea that any girlfriend or common law wife would not demand or at least question the whereabouts of her boyfriend seems farfetched. Once again, the testimony of the twelfth and final witness benefitted the Prosecutor.

The presiding judge, John S. Einhorn ruled that enough evidence had been presented for Diaz to stand trial. The judge decreed the defendant should be back in court on Sept. 9 at 1:30 p.m. to get his official trial date. Diaz faces 75 years to life if he is convicted on all four counts: murder, attempted murder, assault with a firearm and making a criminal threat.

If Judge Einhorn were to score Thursday’s Preliminary Hearing the same way a boxing judge scores a 12 round boxing match, his scores would have ended up in the neighborhood of Prosecution 119, Defense 107.

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