Lorena and Reyes Cuesta seek justice for their slain daughter Lizette.
Lizette Cuesta’s last words could come back to haunt her alleged killers.
The words came after she was repeatedly stabbed. After she was thrown from a vehicle and left to die on the side of a road in rural Livermore. And after she crawled nearly the length of a football field to get the attention of a passing motorist.
As the driver stopped to help and call 911, Cuesta said two names: Daniel Gross and Melissa Leonardo.
The sun had still yet to rise on the morning of Feb. 19, as Cuesta was airlifted to Eden Medical Center in Castro Valley. During the flight, she yet again summoned the strength to tell paramedics who had tried to kill her. And she kept telling this story to investigators as she lay in a hospital bed and took her final breaths.
Cuesta displayed a ferocious need to see justice served, according to law enforcement officials, who have referred to her final act as a “dying declaration,” a rare piece of evidence that courts exempt from hearsay rules because of the belief that people won’t waste their last words on a lie.
The information Cuesta, who was 19, gave to investigators led to Gross, 19, and Leonardo, 25, who were both found in Modesto less than 12 hours later — at a location investigators deemed a crime scene due to evidence collected.
“A crime scene that likely would have perished or would have been destroyed had we got there days or weeks later,” said Sgt. Ray Kelly, of the Alameda County Sheriff’s Office. “(Cuesta’s) declaration was not just a gift to her family, because they’re going to get justice, but it was a gift to her solving her own case and then for us as investigators. It got us exactly where we needed to be at the exact right time.”
On Friday, Gross and Leonardo — who worked with Cuesta at a Carl’s Jr. in Tracy — appeared briefly in Alameda County Court, where their plea hearing was pushed to May 10.
Reyes Cuesta, Lizette’s father, said he plans to attend every hearing in the case, even though the thought of seeing his daughter’s alleged killers keeps him up at night. He also frequently returns to his last day with Lizette.
Lorena Cuesta created a memorial for her duaghter Lizette in the family’s home in Tracy.
The sun was out and Lizette’s younger sister and brother played on the swings in their backyard, while Reyes Cuesta and his wife, Lorena, danced to Cumbia music that blasted from a nearby stereo.
He remembers how Lizette would barge through the front door of their home like a “tornado,” urging her parents to eat healthier. More lettuce, she would say.
And just as he starts to smile, Reyes Cuesta is reminded of his new reality: His oldest daughter is gone.
“We want to concentrate and make sure she gets justice,” he said. “That’s what she wanted. She fought so hard. It wouldn’t be right for us to give up now. We have to honor her bravery and honor the way she fought.”
Andrea Roth, a law professor at UC Berkeley and expert in evidence law and criminal procedure, said that dying declarations date to the drafting of the Constitution. They require a statement about the circumstances of one’s death made by a victim who believes death is imminent. The person must also have personal knowledge surrounding the details of their death, Roth said.
“In a more religious age, the idea was that if you thought you were about to die, then in your mind you’re about to meet your creator — you’re about to meet God at the gates of heaven,” she said. “The idea is that that is just as good as the oath, the same way that you put your hand on the Bible or sacred text and swear to tell the truth before God and everyone.”
Dying declarations are only admissible in homicides and civil cases. Many law enforcement officers go their entire careers without coming across a victim who identifies their killer in their final words, Kelly said. Often, it’s because there’s a “certain code on the streets that you don’t snitch.”
That was the case on a summer night in 1996, when rap legend Tupac Shakur was fatally shot on the Las Vegas Strip. In a 2014 story in Vegas Seven magazine, Sgt. Chris Carroll said he came upon Tupac’s body and repeatedly asked him, “Who shot you?”
When Tupac finally looked at Carroll, he opened his mouth and said, “F— you.”
Tupac’s killer has never been caught.
The rapper’s story rings familiar to Lt. Felix Tan of the Richmond Police Department.
In the mid-1990s, when Tan was a rookie officer, he responded to a shooting involving a Richmond gang. Paramedics told him the victim wouldn’t survive, so Tan relayed the information in the hopes of eliciting a dying declaration, he said.
“I would not have done this if the paramedic said, ‘Oh yeah, there’s a 1 percent chance he’s going to survive,’” Tan said.
The victim was unmoved.
“He just cussed me out,” Tan said.
Other than Lizette Cuesta’s case, Kelly can recall only one other time in his 22 years as a law enforcement officer when a victim used their last words to lead investigators to the alleged killer.
Michael Cory Lee was picking up methamphetamine at a trailer in San Leandro in February 2001, when two men barged in and shot him multiple times. Lee’s girlfriend and friend were sitting in a nearby car and witnessed one of the shots being fired at Lee as he stumbled out of the trailer, according to court documents.
Lee’s girlfriend and friend reportedly ran to his side and asked, “Who did this to you?”
“Joker from DeCoto,” Lee reportedly said before losing consciousness. An Alameda County sheriff’s deputy arrived and was able to revive Lee. Again in his final breaths, Lee named his killer, “Joker from DeCoto.”
“It became an important piece of evidence at that trial, because we were able to establish that ‘Joker’ was Rafael Casique,” Kelly said, adding that the distinction of DeCoto helped investigators determine Casique was “Joker.”
Rafael Diaz Casique was the notorious leader of a Norteños street gang in Union City. Lee allegedly owed him money, said Ken Mifsud, an Alameda County assistant district attorney prosecuting the case.
While it was just one piece of evidence in the case, Lee’s dying declaration helped investigators connect the dots and get a key informant from the Norteños gang to explain Casique’s involvement in the slaying, Mifsud said.
Tony Serra, a criminal defense attorney, represented Casique throughout that trial. His strategy against dying declarations, he said, is to delegitimize them.
“The dying declaration is formidable. You want to undermine the credibility of the statement in any way you can and those are the traditional ways,” Serra said. “You just don’t give up.”
In the case of Casique, Serra argued that there were other people who go by the moniker Joker, and that Lee’s declaration was based on speculation. Ultimately, the attorney’s efforts didn’t exonerate Casique. A jury found him guilty of first-degree murder in 2003 and sentenced him 50 years to life in prison.
Sarah Ravani is a San Francisco Chronicle staff writer. Email: sravani@sfchronicle.com Twitter: @SarRavani
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