Berki, 18, of Mission Beach, was shot in his car just minutes after the three men allegedly robbed him and his girlfriend of $640 and their cell phones when Berki drove to Paradise Hills in search of a computer deal.
All three defense lawyers conceded in opening statements a robbery was committed, but all insisted the robbery had concluded after they drove away. Berki drove after them to try and locate a car license-plate number to give to police and was shot after both cars turned into a cul-de-sac in Paradise Hills. One of the defense attorneys told jurors the shooting was accidental.
The distinction about when the robbery concluded is important because if jurors find Berki was shot during a robbery, the felony murder rule specifies it is first-degree murder for all participants, which is what prosecutor Kristian Trocha is seeking.
Attorney Kate Coyne, who represents accused gunman Rashon Jay Abernathy, 18, told the seven-woman, five-man jury that Abernathy held the gun outside a partially lowered window, which was a child safety feature of the stolen Honda they were in.
When the driver, Seandell Lee Jones, 19, slammed on the brakes suddenly, that caused the gun to discharge and fatally wound Berki, said Coyne. She described it as “an unintentional firing.”
“He didn’t know the gun was loaded. It was accidental, not a premeditated murder,” said Coyne.
Only one shot was fired at dusk in the 3000 block of Artemia Way and several neighbors in Paradise Hills testified they heard it. The trio drove off, leaving Berki wounded in the shoulder, but the bullet traveled into his lungs, severing arteries. He died at a hospital a half-hour later, said Trocha.
Jones, Abernathy and Shaquille Kasiya Jordan, 18, left in the stolen car, but it crashed nearby in the 3000 block of Fleming Drive. They fled, but dozens of San Diego police officers with dogs and a helicopter searched the area and arrested them all.
Trocha told jurors the $640 was recovered, along with the cell phones. Berki’s cell phone was found in the backpack that carried the supposed computer for sale, he said.
The prosecutor said the trio was placed in a holding cell together and “they talk about the robbery and murder,” apparently unaware their words were being recorded on tape.
Trocha said the trio talked about how they regretted not shooting Berki’s tires or taking his keys so he wouldn’t follow them. He said they didn’t say anything about regretting Berki was shot.
The first witness was Erick Castillo, of Pacific Beach, who told jurors he answered a Craigslist ad for a 17-inch Apple Pro computer on May 5, 2011, and was robbed at gunpoint by two defendants.
Castillo identified Abernathy and Jones as the young men with guns who repeatedly told him they would kill him before he gave them $600. He met them near the Paradise Valley Recreation Center. Trocha told jurors the cell phone number in that ad was the same number that Berki called a week later.
“Craigslist cuts out the middle man … without going to the retail outlet,” said Castillo as to why he responded to the ad.
Abernathy lived in Paradise Hills, just blocks from where Berki was shot, said Trocha. Jones and Jordan lived in southeastern San Diego.
All three men have pleaded not guilty in the trial before San Diego Superior Court Judge Kerry Wells and remain in custody on $5 million bail. Two wore suits and ties and a third wore a vest, which concealed their waist chains.
One juror, who failed to show up for jury duty on Monday, was discharged and an alternate juror took his place. Wells said the truant juror left messages with her clerk, but they were not received until Monday morning.
The juror said in his message he had to work at the La Jolla County Club on Monday and also would not get paid after the fourth day of trial. Wells said she called the Country Club and was told he was not on the work schedule for Monday. Wells said she would consider finding the discharged juror in contempt of court.