Carrillo v. Superior Court

• Decision Date: 21 December 2006
• Docket Number: No. B191701.,B191701.
• Citation: 52 Cal.Rptr.3d 614,145 Cal.App.4th 1511
• Court: California Court of Appeals Court of Appeals
• Parties: Pedro Zumudio CARRILLO, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

52 Cal.Rptr.3d 614

145 Cal.App.4th 1511

Pedro Zumudio CARRILLO, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent The People, Real Party in Interest.

No. B191701.

Court of Appeal, Second District, Division 2.

December 21, 2006.

Janice Y. Fukai, Alternate Public Defender, Felicia K. Grant and Vito Caruso, Los Angeles, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Lael R. Rubin, Head Deputy, Brentford J. Ferreira and Phyllis C. Asayama, Deputy District Attorneys, for Real Party in Interest.

BOREN, P.J.

Petitioner Pedro Zumudio Carrillo (Carrillo) was charged with various crimes, including committing murder for the benefit of a criminal street gang. Defense counsel, as a trial tactic, elected not to move prior to trial to suppress Carrillo's confession, deciding instead to allow the jury to hear Carrillo's tape-recorded interview with the police in its entirety. After a portion of the taped interview was played for the jury, the trial court concluded Carrillo's confession had been coerced. The court found that defense counsel's failure to move to suppress the confession constituted ineffective assistance per se and sua sponte declared a mistrial. Carrillo asserts in this proceeding in prohibition that the double jeopardy provisions of the state and federal Constitutions bar retrial. We agree and grant his petition.

I. FACTS

On May 3, 2005, an information was filed charging Carrillo with first degree murder, two counts of assault with a firearm, attempted second degree robbery and making criminal threats. It was alleged the murder was committed while Carrillo was engaged in the commission of the attempted robbery, and that a principal personally and intentionally discharged and used a handgun, which caused great bodily injury. It was also alleged the crimes were committed for the benefit of the Orphans, a criminal street gang.

A. Prosecutor's Opening Statement.

Trial commenced on March 20, 2006. In his opening statement, the prosecutor told the jury evidence would be introduced to establish the following facts.

On May 29, 2004, at about 11:30 p.m., Carrillo was present at the wedding of Oscar Gutierrez, an Orphans gang member. Also at the event were fellow gang members Alfredo Villa, known as "Joker," and Mario Padilla, known as "Puppet." Puppet approached Carrillo and told him "If you're down for the barrio, let's go do a hale, a job."¹ Because Carrillo did not want Puppet to think he was a "pussy," he drove Joker and Puppet to 8th Street and Union Street in Los Angeles.

After leaving Carrillo's vehicle, Puppet walked up to Edward Brown, put a gun to his head and said, "Orphans, this is Orphans." Puppet then walked into a nearby liquor store, waved the gun around and stated, "This is Orphans, do you want it? Do you want it?"

Puppet left the liquor store and walked across and down the street to a pay phone. The murder victim, Victor Fernandez, was on the pay phone talking to his wife in Guatemala. She heard a male voice state in Spanish, "Give me your wallet. Give me your money. Give me your cell phone." Fernandez then stated, "Take it. I don't have any money." The victim's wife then heard several gunshots.

Angie Ruiz and Jose Alaniz, residents of an apartment building located across the street from the pay phone, heard gunshots and looked out the window. They saw a man pointing a gun at Fernandez and saw Fernandez backing away. Fernandez then ran, dodging and weaving down the street as the shooter took additional shots. Fernandez then fell, face down. The shooter ran to a black, two-door sedan parked in the darkest part of a parking lot. The windows were tinted and there were no license plates on the car. After the shooter entered the car, the driver quickly drove away down a dark alley.

The prosecutor told the jury that shortly after the murder, Oscar Gutierrez contacted the police and gave a statement. Jeff Breuer, a homicide detective with the Los Angeles Police Department, would explain that Gutierrez contacted the police because Gutierrez was upset because Puppet had shot a wedding guest. Two months after the murder, Gutierrez gave a second statement, which was taken by Detective Breuer. This statement, which was tape-recorded, implicated Carrillo in the murder. The prosecutor warned the jury that Gutierrez would deny making any statements to police and would claim that because he was drunk on the night of the murder he could not remember all of the events of that night.

The prosecutor next addressed Carrillo's three-hour, tape-recorded interview, which was taken by Detective Breuer and his partner in October 2004. The jury was told it would hear Carrillo initially denying any involvement in the murder, but that after about 25 minutes Carrillo would admit the black Honda used in the murder belonged to him. He would claim, however that he gave the keys to Joker and Puppet. Then, about 45 minutes into the interview, Carrillo would admit he was the driver; that he drove to an area near the intersection of 8th Street and Union Street and parked the car; Puppet told him he was going to "walk the neighborhood and look for enemies";² and as Puppet left the car, Carrillo saw that he had a gun. Carrillo would also say, "over and over again" that the shooter was Puppet.

The prosecutor candidly admitted that the jury would also hear Detective Breuer repeatedly telling Carrillo that he, Breuer, knew the shooter was Joker. The prosecutor explained, however, that following Carrillo's interview, Breuer discovered additional evidence which led him to conclude that his initial belief that Joker was the shooter was incorrect; that, in fact, Carrillo "was right about every detail; that the shooter was ... Puppet, not Joker."

In closing, the prosecutor told the jury he was sure that they would come to understand that Carrillo knew that crimes were going to be committed when he heard Puppet say that if Carrillo was "down for the barrio," he would "do a hale," and that he, Puppet, was going to "walk the neighborhood and look for enemies." The prosecutor believed the jury would agree "that by positioning the getaway car in that darkened parking lot with the headlights off so Puppet could make an escape," Carrillo had aided and abetted the murder of Victor Fernandez, and had engaged in and furthered gang activity.

B. Defense Counsel's Opening Statement.

In his opening statement, defense counsel, Vito Caruso, admitted that Carrillo was the driver of the black Honda seen on the night of the murder. Caruso claimed, however, that the evidence would show Carrillo was coerced into going with Puppet and that at no time did Carrillo agree to commit a crime and at no time did he know a robbery was going to occur, much less a shooting.

According to Caruso, the evidence would show that Puppet and Carrillo had never met before the night of the murder, and that Puppet, who was attending the Gutierrez wedding without being invited, had approached Carrillo and manipulated him into driving to 8th Street and Union Street, on the pretext that Puppet wanted to get some cigarettes. Caruso described Puppet as an older, more experienced gang member who was a "pretty intimidating guy." Carrillo, on the other hand, was described as "easily manipulated." Caruso admitted that Carrillo was no "choir boy," but noted that at the time of the murder he had no criminal record, was working construction, and had a family and a girl-friend. Caruso said that Carrillo was an Orphans gang member because he had been "jumped in," but downplayed his involvement, describing him as a "tagger" who marked up walls with graffiti.

Caruso assured the jury that once it heard Carrillo's tape-recorded interview with the police the jury would see that Carrillo had been manipulated, and that Detective Breuer had "bullied" Carrillo "into giving a false confession" and "into basically saying his good friend [Joker] was the shooter." Caruso conceded that it was "apparently okay" for the detective to lie to Carrillo by telling him that Joker had admitted being the shooter and had "laid out" Carrillo by telling the police that Carrillo was the driver of the getaway car.

Caruso claimed the jury would see that the prosecution was basing its entire case on the jury's believing only certain segments of the tape and disregarding other aspects of the tape. Caruso concluded that the tape would show that although Carrillo was scared and less than forthcoming when he first talked to the police, he eventually came "clean" and told the police that Puppet was the shooter and that he, Carrillo, did not know that the killing was going to occur.

Caruso emphasized that the police "wouldn't let up" until Carrillo told them what they wanted to hear, i.e., that Joker was the shooter, rather than Puppet, and that he, Carrillo, went with Puppet and Joker to "go look for enemies." Caruso claimed that in order to force Carrillo to make these false admissions, Detective Breuer and his partner repeatedly told Carrillo "you can be with us or against us. You can be a witness and walk home, go home or you can be a defendant." After a "long time," Carrillo started saying what the detectives wanted him to say.

Caruso concluded that after listening to the evidence, testimony and trial court instructions, the jury would find Carrillo not guilty.

C. Prosecution Witnesses.

Following opening arguments, Edward Brown took the stand and testified exactly as the prosecutor said he would, including that he saw the man who assaulted him run to a dark colored, two-door Honda, which was parked "sideways." The car, with the headlights off, left the driveway and went through an alley. Brown identified a photograph of Carrillo's vehicle as the car he saw on the night of the murder.

Angie Ruiz also testified as the prosecutor indicated she would in his opening statement. She said that after she looked out the window of her apartment she saw a man...