Oscar and Graciela Salazar had been working for Rosa at this Alberto’s Mexican restaurant in Escondido.

Juan and Rosa waited and waited outside in the truck. It seemed Graciela would never come out of the house. In fact, Graciela didn’t come out until after the police arrived.

Rosa was the one who drove to the house in Escondido. She knew that her husband had had five or six beers at the Christmas party.

Rosa owned an Alberto’s Mexican restaurant in Escondido. That night, owners and workers enjoyed a Christmas party hosted by the chain’s biggest supplier. The family-friendly posada was held in the supplier’s warehouse in Vista. Most guests arrived between 7:00 and 8:00 p.m. that Saturday, December 17, 2011.

During the party, Rosa got a phone call informing her that one of her employees had not shown up for work. (Her restaurant was open 24 hours.) Since she knew where the employee lived, she decided drive over and give her a ride.

Husband Juan didn’t like that idea; he wanted to go home. It was after midnight, they had been at the party for more than four hours, and they had their two kids with them — a one-year-old and a five-year-old. Plus, Rosa was eight months pregnant. But Rosa would not be dissuaded. So they went to get Graciela.

Juan Rivas

Rosa Rivas

Go get Graciela
Rosa pulled up in the driveway of Graciela’s home on Elm Street at a little before 2:00 a.m. on Sunday morning. She parked her truck behind a car carrying several taco-shop employees. Everybody arrived at almost the same moment; they’d all come from the same party in Vista. The home on Elm Street was shared by a group of employees who worked at various Alberto’s restaurants.

Tereso stepped out of his white Ford Explorer after parking in the drive. He called out a greeting to his bosses and walked over and bummed a cigarette off Juan. Juan stepped down out of Rosa’s truck. The two men began to chat. “We both were smoking,” Juan remembered later.

Later, for a jury, Juan recalled, “Tereso yelled to Oscar Salazar that he should go talk to Graciela, because we were going to give her a ride.” Oscar Salazar was another employee, and he was married to Graciela.

Oscar went into the house to get his wife. She hadn’t gone to the Christmas party with everyone else, because she was scheduled to work that night.

Rosa’s husband Juan works at the taco shops, too. “I’m a cook…. Sometimes I work in Escondido, sometimes I work at the Oceanside one.”

After Tereso and Juan smoked and chatted for a while, “My wife asked again. ‘Talk to Graciela, it’s getting late.’” There were other men idling around, five or six persons out in front of the house. “Tereso told Jorge to go ask Oscar what was happening with Graciela,” said Juan. Everybody, he said, was speaking Spanish.

Jorge went inside, came back out, and said, “She’s coming right away, she’s coming right away.” Rosa and Juan waited. But Graciela did not come.

In California Superior Court, in June 2013, a prosecutor asked Juan if it bothered him to wait around for an employee like that. “Well, yes, a little bit,” Juan said. But he wasn’t upset because the employee had not come to work. “Well, I’m already used to that. That happens.”

Neither Graciela nor her husband Oscar came out of the house. So Rosa, still waiting in the truck with her kids, had another idea.

Later, from the witness box, Juan remembered, “My wife said, ‘Well, go and ask Omar, and see maybe he could go to work.’” After all, the house was full of Alberto’s employees; surely Juan could find someone else who was available.

Juan trudged into the house. He spoke with Omar. But Omar said he was too busy with visiting relatives to come in.

In court, Juan sounded tired when he testified: “He said no.”

How the fight started
Juan said that he walked back toward the truck from the house, and Oscar followed him out. “Oscar said, ‘No! No more to work!’” Juan had already climbed into the truck when Oscar said again, “No! No more to go to work!”

Rosa confirmed that she heard Oscar say that neither he nor his wife would come to work anymore. She testified: “Oscar said, ‘Graciela is no longer going to work with you.’… And he [ended] by using a bad word.”

Juan said he got back out of the truck and calmly asked, “What’s going on, Oscar? We are waiting so long, and now you are telling me all of this? And I told him, I said, ‘You need to be a little more responsible, also.’ I told him…and then Oscar said, ‘No, we just don’t want your fucking job anymore.’

“I said, ‘That’s fine. If you don’t want to go, don’t go, no problem. If you want to, you can come tomorrow, and just get the money that we owe you.’” Juan wanted to let Oscar know that he could come and get his final paycheck.

But “when I said that, he lunged at me to hit me,” Juan testified.

Juan said that Oscar took a swing at him, so he pushed Oscar backward. Some witnesses described Juan cursing, but both Juan and Rosa denied it. Juan also denied that he punched Oscar in the face. This act was later charged as misdemeanor battery.

The confrontation quickly turned into a brawl. Other men joined the fracas. Participants in the fight later testified as witnesses. Each told the jurors about how he’d felt obligated to defend his brother — it seemed they were all related, somehow. (All of the men grew up together on the same rancho in central San Luis Potosí, Mexico.)

Juan said he was shoved from behind. “That’s when they got me to the ground.” He claimed he was not trying to fight back. “No, I was just trying to get up, just get out of there. There were too many against me. There were five against me…they started kicking me.” The men still had on the cowboy boots they’d worn to the Christmas party. “I was trying to get up, but I couldn’t,” said Juan.

“Oscar Diaz got seated on top of me. He was hitting me with a hand on my face. Miguel was kicking me…where my ribs are.”

A tool to open boxes
Juan said he shoved Oscar off and reached for a knife he kept clipped to the back of his belt. “I got my knife, and I held it at my waist.”

Juan said he was still kneeling on the ground when he stabbed Oscar. “I had one knee on the ground, and the other one, I was trying to get up — like this. So then I cut his leg with the knife,” he admitted. “Because that’s when he kicked me, and that’s when I did like this.” Juan demonstrated his movements for the jury.

The weapon was described as a utility knife. “It’s a little knife,” said Juan. “It’s like this. It’s red.” He said the knife had a can opener, a little scissors, a screwdriver, and two different-sized blades. “I have it with me all the time, because I always use it as a tool to open boxes.”

Just then, Emilio arrived. Emilio is married to Rosa’s sister and also works at Alberto’s. Juan said he was walking “backwards” toward his truck when Emilio drove up. “Emilio said, ‘Let’s go,’ and he was helping me get up to the truck because I was all beaten up.”

What Rosa saw
Rosa said, “I was sitting in my car. I was watching everything.” The brawl broke out right in front of her truck. “I got out when they had [Juan] on the ground.”

Rosa testified at trial. Her husband was charged with two felonies — assault with a deadly weapon on two persons. “Everybody was hitting him while he was on the ground.” Rosa wept as she remembered that terrible night. She took a tissue from the box on the witness stand and dabbed her eyes. “Once he was on the ground, they started kicking him. They kicked him again and again. And they were wearing boots…they were wearing hats, boots, cowboy boots, Levi’s, and checkered shirts.

“I was yelling, I was screaming, and I was crying.”

Rosa did not take her husband to the hospital that night. “He doesn’t like to go to the doctor.” Plus, “I was eight months pregnant,” and “the only thing I wanted to do at that point was go home.”

Two of the men involved in the fracas did go to the hospital, and both had knife wounds stapled shut. Oscar, 27, was treated for cuts to his leg and chest, while 21-year-old Miguel had cuts on one hand and one arm. This evidence was presented at trial.

A San Diego County prosecutor charged Juan Rivas, 28, with two felonies and one count of misdemeanor battery for allegedly punching Graciela’s husband in the head after Oscar announced that the two wouldn’t be coming to work anymore.

Oscar Diaz got stabbed. He testified later at Juan Rivas' trial.

Juan and Rosa hired criminal defense attorney Natalie Galashty. During the trial, in June 2013, Galashty provided a vigorous defense. A jury of seven men and five women heard testimony for four days. They deliberated for just over a day. The jury declared Juan guilty of the one misdemeanor battery charge against Oscar Salazar, but deadlocked on the two felonies.

Sentencing
Prosecutor Laurie Hauf declined to refile the two felony charges, choosing instead to dismiss them.

During sentencing on June 28, 2013, Juan’s attorney stressed to judge Richard E. Mills, “It started as mutual combat, as an altercation.”

Galashty claimed that the victim of the battery incurred “no injuries whatsoever.” She said, “All parties were intoxicated.” Juan Rivas had to do whatever he could to defend himself. “When the fight developed, Mr. Rivas [became] the victim of an excess of force — even if it were believed that he was the initial aggressor — and the right to self-defense shifted to him.”

Galashty pointed out that Juan Rivas’s only criminal record was a single misdemeanor conviction seven years ago and that he was now a productive member of society, raising a family with four children, the eldest six years old. She pleaded against incarceration, requesting a sentence of “community work service” and “anger management classes.”

Judge Mills noted: “Defendant’s record is two crimes of violence, six years apart, neither particularly a big deal.” Both convictions were misdemeanors, the judge said. But, he insisted, “The defendant caused this whole problem.” Looking at Juan, the judge said, “If he would have just stayed in his truck, none of this would have happened. He got out of his truck, so he caused this to happen.”

Juan hung his head.

“I have never been a big fan of programs [such as] anger management,” Judge Mills said candidly. “I think they’re, generally speaking, not worth the money, not worth the effort, and they are just a political gimmick most of the time. So, I don’t make people do things like that.”

Defense attorney Galashty begged the court to consider Juan Rivas’s delicate immigration status, which could be harmed by a sentence of custody. Galashty implored the court for probation instead. The judge responded: “I don’t think it’s right for judges to give people a benefit because they’re here illegally. So I don’t think it’s right for me to give him less time than I would give an American citizen. That’s just not right.”

Then he said, “Sentence is 30 days’ custody, forthwith.”

A bailiff walked forward. A pair of orange handcuffs ratcheted loudly. The judge said, “No probation.” ■