Marquez, In re

• Decision Date: 23 January 1992
• Docket Number: CR25311,Nos. S016072,s. S016072
• Citation: 822 P.2d 435,1 Cal.4th 584,3 Cal.Rptr.2d 727
• Court: California Supreme Court
• Parties: , 822 P.2d 435 In re Gonzalo Marquez MARQUEZ on Habeas Corpus.

Page 727

3 Cal.Rptr.2d 727

1 Cal.4th 584, 822 P.2d 435

In re Gonzalo Marquez MARQUEZ on Habeas Corpus.

Nos. S016072, CR25311.

Supreme Court of California In Bank.

Jan. 23, 1992.

Rehearing Denied March 18, 1992.

Eric S. Multhaup, Fischer & Multhaup, San Francisco, under appointment by the Supreme Court, and Kathy M. Chavez, Berkeley, for petitioner.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Sacramento, Edward T. Fogel, Jr., Asst. Atty. Gen., John R. Gorey, Christine C. Franklin, Mark Alan Hart and Sharlene A. Honnaka, Deputy Attys. Gen., Los Angeles, for respondent.

PANELLI, Justice.

Petitioner was convicted of the second degree murder of Angel Rodriguez and the first degree murder of Ascencion Hernandez with three special circumstances (multiple murder, murder during the commission of robbery, and murder during the commission of burglary). Petitioner was also convicted of first degree burglary and robbery of Hernandez with the use of a firearm. After a half-hour penalty trial in which neither side presented evidence, the jury returned a death verdict. Petitioner's automatic appeal has been considered, and our opinion affirming the judgment of guilt is being filed simultaneously with this opinion. 3 Cal.Rptr.2d 710, 822 P.2d 418.

Petitioner filed a petition for writ of habeas corpus alleging that he was denied the effective assistance of counsel at both the guilt and penalty phases of his trial. Petitioner alleged that trial counsel had failed adequately to investigate whether he was still a juvenile when the murders were committed, failed adequately to investigate petitioner's claim that he was in Mexico in 1981 when Ascencion Hernandez was killed, failed adequately to argue the motion challenging the validity of petitioner's arrest, and failed to investigate or present mitigating evidence. We issued an order to show cause and appointed the Honorable Charles Hughes, retired judge of the Los Angeles Superior Court, as our referee to take evidence and make findings of fact on nine specific questions relating to the adequacy of counsel's investigation. ¹ Judge Hughes heard testimony, received exhibits, and submitted a report with extensive findings of fact. His report recommends that petitioner be given a new trial on all charges. As we shall explain, we agree with the recommendation that petitioner be given a new penalty trial, but we do not agree that a new trial on guilt is warranted.

EVENTS LEADING TO PETITIONER'S CONVICTION

1. Murder of Angel Rodriguez

On December 31, 1979, El Monte police responded to a call and found the body of Angel Rodriguez lying on the sidewalk. He had been shot in the head with a 9-millimeter handgun. Police questioned four Spanish-speaking individuals who lived nearby. They gave the police descriptions, names and nicknames of two suspects. The witnesses also helped develop composite drawings of the suspects. An arrest warrant for petitioner was obtained as a result of the information given. None of these witnesses could be located to testify at trial.

2. Murder of Ascencion Hernandez

On March 15, 1981, about 10:30 p.m., Connie Hernandez was in her bedroom; her husband, whose nickname was "Chon," was in the living room watching a television program. Connie heard voices in the living room, speaking Spanish, and someone saying "Chon, Chon." She peeked out and saw two men pointing guns at her husband. Connie put on her robe, ran into the living room and stood between her husband and the two men with the guns, facing the latter. At that point another man ran through the front door, put a knife to Connie's stomach, and told her to be quiet. While face to face with the gunmen, Connie was crying and screaming in Spanish, begging them not to do anything. She testified that petitioner was one of the two gunmen and that he did most of the talking. Petitioner was described as wearing a beanie (knit ski cap) covering his hair and ears; the other gunman wore no hat or mask; and the person holding the knife wore a beanie that covered his face and had holes for his eyes. The gunmen demanded money from Hernandez and threatened to kill him. When one of the babies started crying, Connie told the men in Spanish that she was going to her daughter's room to tell her to get medicine for the baby. The man with the knife followed her. She knocked on the door and, in English, told her daughter Sandra to go out the window and ask the neighbors to call the police because there were three men there who wanted to kill her husband. (The men did not understand English.) Connie returned to the living room and again positioned herself between the gunmen and her husband. Petitioner was still demanding money. Finally, her husband said he would give them all the money he had, took about $140 to $150 from his wallet, and threw it on the floor. Connie ran into the kitchen, heard shots, returned to the living room, and found her husband lying in blood.

Connie estimated that she looked at petitioner for five minutes. She said his nose was pointed and that his eyes were big and round. There was adequate lighting; the overhead light was on in the kitchen, as was a lamp on top of the television.

Sandra de la Fuente testified that her mother's screaming awakened her; she opened the door and saw a masked man standing next to her mother, holding a knife on her. As her mother went toward the bathroom, Sandra walked a little way up the hallway and saw petitioner pointing a gun at her stepfather. Her mother told her to go back to her room, lock the door, and go through a window to call the police. Sandra had a good look at petitioner and heard him ask her stepfather for money.

Tina de la Fuente was awakened by her mother's screaming, went into the hallway, and saw petitioner pointing a gun at her stepfather. She looked at him for about a minute and returned to her room. She did not see any other intruders. In particular, she remembered petitioner's long nose.

Petitioner was identified by each of the three eyewitnesses--Connie, Sandra, and Tina. Each separately identified petitioner from a live lineup and at trial. Each testified that she recognized petitioner as soon as he entered the lineup area. Although Connie had been unable to identify petitioner in a group of photographs shown her, she had told the officer that she could not make an identification from a photograph but that she thought that she would recognize the perpetrator in a live lineup. Neither Sandra nor Tina had been shown any photographs.

An autopsy revealed that Ascencion had been shot six times with a 9-millimeter handgun and three times with a .38-caliber automatic. The 9-millimeter handgun was not the same gun that was used in the killing of Angel Rodriguez.

3. Petitioner's Arrest and Confession

Petitioner was arrested at his residence by El Monte police around 1 a.m. on December 12, 1981. Petitioner's brother Amelio and petitioner's girlfriend Martina Pereida were also arrested and placed in custody on charges unrelated to the murder. At a pretrial Evidence Code section 402 hearing petitioner testified on cross-examination that at the time of his arrest he was in the shower, with no water running, and wearing pants and shoes. At trial, however, he testified that he did not remember saying that and asserted that he remembered only that he was in the bathroom and was wearing pants.

On December 14, 1981, petitioner was interviewed by Detective Johnston of the El Monte police, who was investigating the 1979 murder, Detective West of the Los Angeles Sheriff's Department, who was investigating the 1981 murder, and Detective Parrott of the El Monte police, who was interpreting for the other two. Detective Parrott had spoken Spanish at home since the age of 10 and had studied it in high school and college. Detective Parrott was familiar with the vernacular used by petitioner and many other Spanish-speaking people in El Monte. Detective Parrott advised petitioner of his Miranda rights in Spanish from a Spanish-language rights card. Petitioner appeared to understand what Detective Parrott said and his answers were responsive to her questions; he seemed relaxed and cheerful. Detective Parrott testified that no promises or threats were made to petitioner or to any member of his family; petitioner's answers appeared to have been freely and voluntarily given. Detectives Johnston and West confirmed this. Detective Parrott asked questions formulated by Detectives Johnston and West; she had little independent information about the crimes. Pursuant to departmental policy, the interview was not tape-recorded.

Petitioner admitted complicity in both murders. When he was asked about a man who had died on December 31, 1979, petitioner first said he was not in the country at that time. He then admitted shooting the man after being told that there were witnesses who could identify him. Petitioner said his cousin Mario had been fighting with the victim on Merced Street in El Monte. Mario told petitioner to shoot the victim, so petitioner shot him in the head with a blue steel automatic weapon.

When asked about the death of Ascencion Hernandez on March 15, 1981, petitioner said he was there but that he did not kill him. Petitioner said he was there with Miguel Reyes (known as "La Gusia") and Jaime Polido (known as "Chu Cho" or "Chu Chi"). They lived in neighboring apartments.

Petitioner described how Miguel drove him and Jaime in Miguel's yellow Mustang to Chon's house about 10 p.m. (Miguel knew Chon from Mexico.) Miguel and Jaime had automatic weapons and petitioner had a knife; Miguel was wearing a beanie that was pulled down to cover his face. When they went inside the house, petitioner heard a lady talking in English and he thought there was a little girl there. The lady came into the room. The victim was watching television. Jaime called the man Chon and told him to give them the money....