Defense: Witness was the shooter

The decisions shape the evidence a jury will ultimately weigh in the murder and attempted murder trials of Tito Sedeno and John Navarro, both 22. The most important motion — whether the two defendants will stand trial together or be split into two separate cases — went unresolved yesterday while Bergeron and defense attorneys reviewed prosecutor Sean Gallagher's written opposition. A decision is expected Tuesday before jury selection begins.

The core of the split request is inconsistent defenses for the two men. Sedeno's attorney, Mara Feiger, wishes to call Lois Buenaflor to testify she was in a car with the defendants when shots fired into the car carrying Gardner. Myra Weiher, representing Navarro, does not want to use Buenaflor.

Buenaflor could not identify a photo of her own driver's license during a preliminary hearing last year and Gallagher disputes whether she was even in the vehicle. Feiger, though, plans to use her testimony to prove Sedillo is actually the culprit in Gardner's death and threatened Buenaflor the same evening.

"Lois Buenaflor was the victim of an attempted rape that night by Mr. Sedillo," Feiger said. "He used the gun he shot Mr. Gardner with."

Daly City police arrested Sedillo with the other two but prosecutors dropped the charges after he agreed to cooperate. Gallagher wanted Sedillo to testify about belonging to a gang with the defendants to show jurors the significance of his willingness to cooperate and endanger his life with "another level of betrayal."

Bergeron denied the motion because gang charges are not alleged in the shooting. He did tell Gallagher he can bring up the three men's long history of friendship and crime to prove their close relationship.

As part of their defense, Sedeno and Navarro's attorneys plan to attack the credibility of the prosecution's primary witness. Bergeron is allowing Feiger and Weiher to tell jurors that despite Sedillo's comments to police about fearing for his family's safety if he cooperated, his girlfriend actually had a restraining order against him. Feiger also wants jurors to believe Sedillo has "made a business of being a paid witness" but did not elaborate.

Both men face at least 90 years in prison if convicted in Gardner's death Jan. 12, 2002. Gardner and three friends were returning from an auto show in San Jose around 3 a.m. when they drove an Infiniti and another car carrying them near a white Chevrolet Tahoe carrying Sedeno and Navarro. The Tahoe straddled two lanes on Interstate 380 so the driver of the Infiniti in which Gardner was a passenger signaled his intention to pass. Shots were fired from the Tahoe into the car, striking Gardner in the head. He died nearly immediately but his friend rushed him to a local hospital.

The defendants, plus fellow passenger Sedillo, were arrested about five hours later after Daly City police spotted them at a Denny's restaurant. They led police on a chase reaching speeds of 90 mph to the San Mateo-Hayward Bridge, back over the Bay Bridge and into San Francisco's Mission District where they were finally apprehended.

Pre-trial motions continue Monday. Sedeno and Navarro both remain in custody on no-bail status.

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 104. What do you think of this story? Send a letter to the editor: letters@smdailyjournal.com.