Raleigh teens can be tried as adults in gang-related shooting death

Judge Jennifer Knox found that there is probable cause to believe the teens, ages 13 and 15 at the time of the crime, committed first-degree murder when Fernando Garibay-Benitez, 16, was shot in the head as he was on his way home from the store.

"He pointed (the gun) at him, and he shot him over and over," Wake County Assistant District Attorney Amily McCool said during a hearing. "This is not a victim who was coming at him. There was no self-defense here."

Garibay-Benitez, 16, was a rising sophomore at Millbrook High School in Raleigh.

According to witnesses, he and another boy were walking on the sidewalk outside the Lexington on the Green apartments in north Raleigh on Aug. 15 when a minivan driven by the 15-year-old pulled up beside them, and the 13-year-old started firing.

"The driver was basically trolling for a victim," McCool told Knox.

Witnesses testified that the shooting was gang-related and that the 13-year-old shot Garibay-Benitez after learning he and the other boy were in a rival gang.

"After he replied, the first gunshot went off," an 18-year-old girl, who had been in the van, testified. "Then there were more shots."

She also testified that, after the shooting, they drove to an abandoned apartment on Lake Boone Trail, the brothers wiped down the gun, wrapped it in plastic and made jokes about Garibay-Benitez falling to the ground.

"(They) were laughing about it, making fun of it," the girl testified.

Defense attorneys for the brothers argued that the state did not show probable cause that the shooting was first-degree murder.

"There's not enough evidence to prove that he acted with premeditation and deliberation," attorney Mike Klinkosum said of his 13-year-old client.

The names of the brothers are not yet public because they are currently charged as juveniles. They must be indicted by a grand jury to have their cases go from juvenile court to Superior Court before their identities are released.

They, however, cannot face the death penalty because of a U.S. Supreme Court ruling limiting capital punishment to those over age 18 at the time of a capital crime.