"Nice guy" defense rejected in Fresno County double murder

FRESNO, Calif. (KFSN) -- Being nice during a home invasion won't keep a suspect from facing life in prison after two of his fellow robbers died in a gunfight. Three of the home invaders escaped, but police caught Sergio Hernandez and Chi Tang when they delivered a dying friend to Community Regional Medical Center.

The seven men broke into homes on a Fresno County property in August 2014 looking for pot and cash. They got buckets of both, but only five of them survived the shootout that followed. And two of the survivors -- Hernandez and Tang -- are now charged with murdering the two who died in the exchange of gunfire.

There is no evidence they actually shot Francisco Zamora or Gustavo Magana, but when they brought Zamora to a hospital hoping to save his life, police found them with evidence from the home invasion, including ski masks and stolen marijuana. And prosecutors said because they were involved in a felony, they are responsible for any deaths during the crime.

"There is no requirement that either one of the defendants currently being charged fired or even possessed a firearm in this crime because of their involvement in the underlying home invasion that terrorized this family," said prosecutor Noelle Pebet.

Detectives said Hernandez actually told them Tang had a shotgun and admitted to shooting a handgun himself as the victims started to fight back with gunfire. But the attorney for Hernandez said his client acted nothing like a murderer.

"Mr. Hernandez tried everything he could to save Mr. Zamora and without regard for himself drove his friend to the hospital," said defense attorney Frank Butler. "And he only fired a weapon while he was trying to get that person who was dying into the car. If, in fact, Mr. Hernandez was in the residence, he was the nice guy who was trying to protect women and children."

"Mr. Butler, is this some new legal defense that I haven't heard of?" asked Fresno County Superior Court Judge James Petrucelli. "The "nice guy" defense?"

Judge Petrucelli rejected the "nice guy" defense and decided there is enough evidence for Hernandez and Tang to stand trial for the murders of two men -- one of whom they tried to save.

Police have never caught the other three surviving home invaders.