NBC Bay Area
Justice Wakefield Taylor Courthouse in Martinez, California, is seen in this NBC Bay Area file image.
A prosecutor called on a jury in Martinez Thursday to follow evidence that a Richmond man played a key role in the savage 2009 gang rape of a teenage girl at Richmond High School, while the man's attorney asked the jury to convict him only of sexual battery.
The statements came at the close of the trial against Jose Montano 22, and 20-year-old Marcelles Peter of Pinole on charges of rape in concert, oral copulation in concert and sexual penetration with a foreign object in concert with allegations that the acts inflicted great bodily injury.
The charges stem from the gang rape of a 16-year-old girl in a dark courtyard on the Richmond High campus during a homecoming dance in October 2009.
Contra Costa County Deputy District Attorney John Cope said Montano and Peter were among at least six perpetrators of the more than two-hour-long attack that badly injured the victim and shocked the community.
Referred to in court as Jane Doe, the teen was only rescued by first responders after a passerby called 911, according to Cope. By that time, she was comatose and suffering from bone fractures, severe head trauma and a .35 blood alcohol level, according to prosecutors.
Two co-defendants in the case, 22-year-old Manuel Ortega and 19-year-old Ari Morales of Richmond, are serving 32 years and 27 years in prison, respectively, after reaching plea deals with the district attorney's office.
Two more await trial on lesser sexual assault charges stemming from the gang rape.
In the dual trial against Montano and Peter, a different jury was assigned to each defendant. The two juries will deliberate separately.
Montano's jury heard closing statements this morning, a day after closing arguments were delivered to Peter's jury.
Thursday, Cope reviewed the evidence in the case, reminding the jury that Montano could be considered a direct actor in the gang rape in addition to an aider and abettor.
He asked the jury to recall that Montano's DNA was found on two opened, empty condom wrappers at the scene, which he said corroborates witness accounts that Montano raped the victim as she lay unconscious.
Cope also cited testimony from multiple witnesses that at one point during the assault, the defendant climbed on top of the girl, pulled out a condom and began having sex with her.
The prosecutor said Montano also disposed of the condom he used in the rape and referenced one witnesses' recollection that the defendant was worried about finding it after the assault.
"He went back to get the condom to destroy the evidence, to take it away from you," he told the jury.
Cope noted that another witness who was briefly jailed after refusing to take the witness stand in the trial ultimately testified that he overheard Montano the day after the attack saying he raped the victim.
Jane Elliot, Montano's attorney, contended that her client did mount the victim but never removed his pants and was only on top of her "for a very short period of time" before leaving the scene.
She said that the evidence shows that her client is only guilty of sexual battery.
"We know that's what it was, because the evidence shows no rape -- in concert or otherwise," the attorney said.
In addition, she cited witness statements that a co-defendant was handing out condoms during the gang rape, which would explain how Montano's DNA wound up on condom wrappers at the scene.
According to Elliot, Montano wasn't present at the beginning of the assault and was apparently drunk, hindering his ability to gauge whether roughly 20 other boys and men at the scene intended to assault the victim.
"If he was intoxicated, does he have the capacity to know other people's intentions?" she asked the jury.
In his rebuttal to the defense's closing statements, Cope asked the jury again to reconsider the "compelling evidence of guilt" in the case.
"He got his DNA on some condom wrappers -- that should end it right there, but it doesn't end there," the prosecutor said.
Cope then displayed on a projector two witness statements given in the days after the gang rape that identified Montano as the person who slapped the victim, touched her vagina and "shoved a skateboard in her vaginal area," the statements read.
"This is a gang rape, the evidence is overwhelming, it's indispensable," the prosecutor said.