Execution unlikely in 1979 Fresno killing

November 27, 2010 

Eight-year-old Victoria DeSantiago was kidnapped, raped and killed 31 years ago. Her father says he won't rest easy until the accused killer, Fernando Caro, is put to death.

"I am anxious for him to meet Satan," Joe DeSantiago said in his first interview since Fresno police identified Caro as a suspect last year.

But Fresno prosecutors still can't promise that Caro ever will pay that price -- even though they believe he is a serial killer with five other young victims.

Caro, a former Marine helicopter pilot, has not yet been charged with killing Victoria. He was, however, sentenced to death nearly 30 years ago for killing Fowler teens Mary Ellen Booher and Mark Hatcher.

But his fate has been in limbo since the 9th U.S. Circuit Court of Appeals in 2002 threw out the sentence.

The justices said Caro's trial lawyer failed to explore his childhood abuse and exposure to toxic pesticides. If he suffered brain damage, that could introduce mitigating factors for a jury to consider -- and the difference between life and death, the justice concluded.

Because of the ruling, the Fresno County District Attorney's Office had the option of letting Caro spend the rest of his life in prison, or seeking the death penalty again. Prosecutors chose death.

Since the 2002 ruling, Caro has had at least six lawyers from the Fresno County Public Defender's Office representing him.

"It's like this case has been cursed," said public defender Eric Christensen, who currently represents Caro.

Caro's next hearing in Fresno County Superior Court is Dec. 3, when Judge Gary Orozco will ask prosecutor Michael Frye, Christensen and his co-counsel, Peter Jones, whether they are ready to proceed to trial early next year.

Christensen, who took over the case last month, said he plans to tell the judge he won't be ready until late summer or early fall.

"There's thousands upon thousands of documents to read," Christensen said, noting that prosecutors plan to present evidence of the six killings and other crimes, which involves court documents, law enforcement reports and scientific evidence scattered in four counties: Fresno, Santa Clara, San Diego and Kern.

"It will get done, but I just don't know when," Christensen said.

Joe DeSantiago, 60, who has waited three decades for justice, said he has no problem waiting a few months longer, because the extra time will allow prosecutors to put together an air-tight case.

"Caro will get the death penalty, and I will see him die for what he did to my daughter," he said.

No guarantees

The prosecution's decision to seek death, however, has some people scratching their heads.

Not only is it very expensive to seek the death penalty, but Caro is 60 years old and will likely die in prison before he exhausts his appeals, which have cost taxpayers hundreds of thousands of dollars, his lawyers said.

"It's my understanding he will go to the bottom of the list," Jones said, noting that Caro's appeals will start over if a jury imposes another death sentence.

Kent Scheidegger, legal director of the pro-death penalty group Criminal Justice Legal Foundation, said Jones may be right. "It's not the best system," he said, because appellate review for death penalty cases takes decades.

Of the 713 inmates condemned to death, only 13 have been executed since California voters reinstated the death penalty in 1978, Scheidegger said.

"There needs to be reasonable limits on appeals, but it's just not happening," Scheidegger said.

It's unclear what Caro's case has cost. Fresno County District Attorney Elizabeth Egan declined to answer questions about the case.

But California taxpayers spend hundreds of thousands of dollars more on each death-row inmate each year than on inmates who are sentenced to life in prison, according to an American Civil Liberties Union of Northern California study.

It costs more to house them at San Quentin Prison's death row, and for their mandatory appeals, the study said.

"In general, seeking death is not cost-effective," said Lance Lindsay, executive director of Death Penalty Focus in San Francisco. Money would be better spent in crime prevention programs, public safety and in solving cold cases, he said.

Because it is costly, half of California's 58 counties haven't even attempted to seek a death sentence since 2000, the ACLU study says. Fresno County has had one in that time: Marcus Wesson was sentenced to death in 2005 for ordering the killings of nine of his children.

Ed Hunt, who was Fresno County's district attorney for 20 years before Egan, said Caro deserves the death penalty -- no matter the cost.

"You can't put a price tag on justice," said Hunt, who initially made the decision in 2002 to seek death again against Caro. "If you put a dollar sign on cases, you would never get anything done."

Hunt said the death penalty should be reserved for the "worst of the worst." Caro fits the description, he said.

Caro, however, has never admitted to killing anyone.

On death row in San Quentin Prison, he embraces his American Indian culture -- he says he is half Yaqui and half Aztec -- through his paintings, which are sold on the Internet. His supporters have signed petitions to get his conviction overturned, and he has a MySpace page.

Several of Caro's paintings also are displayed in the prison, including in the Catholic chapel, said San Quentin spokesman Lt. Samuel Robinson. But Caro hasn't been a model prisoner, Robinson said, citing two incidents in which Caro has fought other inmates.

A serial killer?

So far, Caro has only been convicted of killing Booher and Hatcher.

But in court papers, prosecutors allege he murdered Victoria in February 1979, as well as 20-year-old Margaret Ogawa in San Diego in April 1976. In addition, he is accused of killing teens Charlena Simon and Robin Denise Snead in Kern County in April 1980.

All of the victims were fatally shot, except for Victoria, who was bludgeoned. Once the case goes to trial, Frye plans to use ballistic and DNA evidence to link him to the other killings and rapes.

Victoria's killing appears out of place. While the other victims were white, Victoria was Hispanic. She also was the youngest of the group.

A year ago, Fresno Police Chief Jerry Dyer said improved DNA technology enabled detectives to link Caro to Victoria's death.

According to police, Victoria and her sister, Eva Marie, then 3, were abducted near Belmont Avenue and First Street on Feb. 3, 1979, while walking to a store with their dog. Eva Marie was found safe hours later on the 3500 block of East Ashlan Avenue. Victoria's nude body was found two nights later at the bottom of a dry creek near Leonard and Ashlan avenues east of Clovis.

Joe DeSantiago said he thinks about Victoria every waking moment. He said Caro also haunts him because he and Caro look alike. They are the same age and have birthdays in December. They also were in the military around the same time.

While Caro was a Marine stationed at Camp Pendleton, DeSantiago was in the Army, stationed in Hawaii.

He recalled an incident in which he and his wife, Angie, and 3-year-old Victoria came across a young girl being beaten by a man. DeSantiago said he stopped his car, grabbed a tire iron and confronted the man.

"I remember people were watering their lawns. I thought to myself, why aren't they helping her?" he said.

DeSantiago said he rescued the young girl and police later caught the man and convicted him.

"Isn't life ironic?" he said, nearly crying. "I was there to save that girl, but no one was there to save my daughter."

Sentence tossed

Caro's conviction for murdering Hatcher and Booher opened the door to a death sentence. The cousins had been riding their bicycles near Hatcher's home on South Clovis Avenue near Lincoln Avenue when neighbors heard gunshots in the early evening of Aug. 20, 1980.

Soon after, witnesses saw a truck speed away.

Mark was found dead on a dirt road. Mary's body would be found five days later in an orange grove on Butler Avenue near Thompson Avenue.

About the same time Mark's body was found, two men were chasing Caro after he ran into their vehicle. The two men, Jack Lucchesi, then 25, and Rich Donner, then 23, confronted an armed Caro on Fowler Avenue near Jefferson Avenue.

A bullet struck Donner's left leg. Lucchesi was hit twice, including in the head. Both men survived, and the information they gave to deputies, including a description of the vehicle, aided in Caro's arrest.

Lucchesi, now 55, said recently that Caro needs to be executed.

"He ruined a lot of people's lives and nearly killed me," Lucchesi said. The shooting left him blind in his right eye, he said.

Once in a while, Lucchesi sees the Hatcher family, but Donner died a few years ago. He said he sometimes wakes up sweating from nightmares about the incident.

"This is one of those cases that no one will ever forget," he said.

Because of pretrial publicity, Caro's trial was moved from Fresno County to Santa Clara County in September 1981. A month later, a jury found him guilty of murdering the two cousins, kidnapping Booher, and two counts of assault in the shooting of Lucchesi and Donner.

A different jury decided death.

During the penalty phase, Fresno County prosecutor Dennis Beck, now a U.S. magistrate judge in Fresno, presented evidence that linked Caro to the kidnapping and rape of a San Diego woman at gunpoint in October 1975, and to the April 1980 double murder in Kern County.

Caro had pleaded guilty to kidnapping the San Diego woman. He was sentenced in June 1976 to three years in prison, but served just two years behind bars before he was paroled.

Though ballistics experts determined that the gun used to kill Hatcher and Booher also had been used to shoot teens Simon and Snead in Kern County, the jury found that the prosecution had not proven that allegation. The jury, however, still concluded that Caro should be put to death.

Years of appeals followed Caro's death sentence.

In his appeal to the 9th Circuit, Caro's lawyer, Lynne S. Coffin, then the chief state public defender, showed evidence that Caro, the oldest of eight children born to poor farm laborers, was severely beaten as a child and suffered serious head injuries at age 3 when he was hit by a car and struck on the head by a water cooler.

As a child, Caro worked and played "in pesticide-soaked fields," according to the 9th Circuit decision. His family's water supply also was contaminated with the toxic chemicals, the court said.

During high school, Caro signaled crop dusters where to drop their pesticides. After attending San Diego State University for three years and nearly getting a degree, Caro enlisted in the Marines, where he became a lieutenant and a helicopter pilot.

After his conviction for kidnapping the San Diego woman, Caro was paroled to Fresno in the summer of 1978, where he became a maintenance worker at FMC Chemical Corp., a manufacturer of pesticides.

Caro "was poisoned by a number of toxic chemicals at the plant," said appellate Judge Warren J. Ferguson, who wrote the ruling that overturned Caro's death sentence.

In a 2-1 ruling, the court found Caro's lawyer, Marc Ament, erred by not introducing all the potential mitigating evidence at the penalty phase.

"A little explanation can go a long way. In this case, it might have made the difference between life and death," Ferguson wrote.

"The penalty-phase jury was deprived of this critical explanation in determining Caro's culpability for his crime," the judge said.

Ament said recently that he did present evidence about Caro's childhood abuse and his exposure to pesticides, but not enough to satisfy the appellate justices.

"I'm glad he gets a second chance to prove his case," Ament said. "He shouldn't get the death penalty."

Joe DeSantiago said Caro has been able to trick judges, but he won't fool a Fresno County jury. And once Caro is convicted, he said, Egan's office has assured him that Caro will move to the top of the execution list.

"I'm Christian. I believe an eye for an eye," DeSantiago said. "He has taken more than his quota."

The reporter can be reached at plopez@fresnobee.com or (559) 441-6434.

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