People v. Ardoin

• Citation: 2011 Daily Journal D.A.R. 8120,196 Cal.App.4th 102,130 Cal.Rptr.3d 1,11 Cal. Daily Op. Serv. 6751
• Decision Date: 03 June 2011
• Docket Number: No. A122444.,A122444.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent,v.Eric ARDOIN et al., Defendants and Appellants.

196 Cal.App.4th 102
130 Cal.Rptr.3d 1
11 Cal. Daily Op. Serv. 6751
2011 Daily Journal D.A.R. 8120

The PEOPLE, Plaintiff and Respondent,
v.
Eric ARDOIN et al., Defendants and Appellants.

No. A122444.

Court of Appeal, First District, Division 1, California.

June 3, 2011.Certified for Partial Publication.*

[130 Cal.Rptr.3d 7]

Robert Derham, Esq., for Defendant and Appellant Albert Jaquez.William J. Capriola, Esq., under appointment by the Court of Appeal, for Defendant and Appellant Eric Ardoin.Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Frances Marie Dogan, Deputy Attorney General, for Plaintiff and Respondent.DONDERO, J.

[196 Cal.App.4th 108] Defendants Eric Ardoin and Albert Jaquez were jointly tried by a jury and convicted of first degree murder (Pen.Code, § 187).¹ They have filed separate appeals. Jaquez argues that the trial court erred by excluding evidence offered by the defense to impeach the primary prosecution witness, and the prosecutor committed misconduct by commenting upon his failure to testify. Ardoin complains that the trial court violated his due process and confrontation rights by giving a revised felony-murder instruction without reopening the case for argument, and denying a motion for mistrial based on admission of evidence of a statement made by his codefendant.

We conclude that the trial court did not abuse its discretion by limiting the defense impeachment of the prosecution witness, and no improper comment on Jaquez's failure to testify occurred. We also conclude that the trial court erred by declining to reopen the case for defense argument after the felony-murder instruction was modified, but the error did not adversely impact the defense argument. Finally, we find no violation of Ardoin's confrontation rights by admission of evidence of a statement

[130 Cal.Rptr.3d 8]

made by his codefendant Jaquez. Therefore, the judgments are affirmed.STATEMENT OF FACTS

The victim, Rodney Tom, was found dead by San Francisco police officers in an upstairs bedroom of his home at 674 Goettingen Street in San Francisco about 8:00 on the evening of July 10, 2003. He was lying on the floor, with his head near a corner of the room. A long wire ligature was wrapped tightly around his left wrist, and a large pool of blood was visible on the carpet [196 Cal.App.4th 109] under his head and neck. Additional “cast-off blood” was found near the body on the carpet, low along the wall and on the door. The pattern of the “blood spatter” indicated that the blows or other events “causing the cast off” occurred “very low near the floor or below two feet.” Credit cards and other papers were strewn on the bed. Prescription pill vials were observed around the nightstands in the bedroom and in a nightstand drawer. A yellow nylon rope and newspaper were collected from the stairs leading from the entryway to the bedroom. Cash in the amount of $600 was discovered in a gold Mercedes parked in the garage. No drugs were found on the premises. Nor did the officers observe any signs of forced entry into the residence.

Tom sustained “multiple traumatic” sharp force and blunt force injuries, most of them superficial or at least not immediately life-threatening, that were inflicted over “many minutes or hours.” The primary and ultimately fatal slash wound was to the victim's neck, which severed his carotid artery and produced the “rapid exsanguination” of blood that caused his death. The presence of the ligature restraint and infliction of numerous wounds was “consistent with multiple individuals inflicting these injuries” on the victim, and indicated that he was struggling during the attack. The coroner estimated that Tom had been “dead for a few to several hours, but probably less than a day” before his body was discovered.

Toxicology reports revealed that not long before Tom's death he had ingested valium, methamphetamine, morphine, and cocaine, in amounts that did not cause his death. Tracks of needle marks on his arms and legs were evidence of “skin popping” that indicated habitual ingestion of drugs with the use of a needle. He also suffered from pulmonary emphysema and “poor circulation to the lower extremities” that caused him “difficulty moving around.” He was “chronically ill” and in a “weakened state” that impaired his ability to resist an attack.

Fingernail clippings were taken from the victim. “[R]eddish material” discovered on the inside and outside of one of the fingernail clippings tested positive for blood. Expert testimony was received that the genetic material may have been deposited under Tom's fingernail if he scratched the killer with his hands while “resisting the assault.” A DNA test of the blood and other “debris” taken from one of the fingernail samples identified defendant Ardoin “as a source of the minor profile.” ²

[196 Cal.App.4th 110] The primary witness for the prosecution was Rebecca Burgos, who was the wife of defendant Jaquez when the murder was committed.³ Burgos admittedly has been

[130 Cal.Rptr.3d 9]

a drug addict essentially all of her life, and continued to be a drug addict both when the murder occurred and when she testified at trial. She suffered prior convictions for robbery and assault with a deadly weapon in 1987, and possession of a controlled substance while in custody in 1993.

Burgos testified that she became acquainted with the victim in 2001, and thereafter regularly purchased heroin from him. Tom, in turn, introduced Burgos to Jaquez in February of 2003, and they were married a month later. They began living in the downstairs “in-law apartment” of Tom's residence on Goettingen Street in late February of 2003. Burgos and Jaquez did not pay rent for the apartment. Rather, their agreement with Tom called for them to pay the utilities for the entire residence, “buy food,” and do some cooking. Burgos described their ongoing relationship with Tom as “good.” She testified that she viewed Tom “like a father” figure.

Tom was a drug dealer who often had “a whole lot of drugs” in his residence. He also kept a .22–caliber revolver inside a sock in his tackle box. Jaquez sold drugs “for himself” and for Tom. Burgos weighed, packaged and sometimes delivered cocaine and heroin. Tom obtained his drugs from a supplier, a Hispanic male, every week or every two weeks. When the supplier was scheduled to appear at Tom's residence, he directed Burgos and Jaquez to “stay downstairs.” Tom would then knock on the floor to let them know when the supplier had left.

Burgos became acquainted with defendant Ardoin in 2003. By March of 2003 and thereafter, Burgos saw Ardoin quite frequently, when she and Jaquez visited his residence on Charter Oak Avenue to socialize or bring him drugs for his customers. Burgos testified that Ardoin would typically page Jaquez when he “had customers that wanted to purchase drugs.” She and Jaquez would then take the drugs “to his house.” They also often used heroin and crack cocaine with Ardoin and his girlfriend Michelle Reese.

By July of 2003, Burgos quit her job as an X-ray technician, and Jaquez worked only infrequently. They used “a lot of drugs” daily, and as a consequence were “broke.” They failed to pay the bills for the residence, so in June of 2003 Tom told them to move out by August 1st. As a result, their relationship with Tom became strained and “edgy.”

[196 Cal.App.4th 111] Burgos was aware that on July 9, 2003, Tom received a large delivery of drugs from his supplier. After the supplier left, Burgos observed the drugs in Tom's tackle box and on the kitchen table. That evening, Jaquez and Burgos visited the home of friends on Palou Avenue to get “high.” After “a few more stops” they returned home to the “in-law” unit at Tom's residence. Two to four hours later Jaquez left without telling Burgos where he was going. Later still, Tom called Burgos on the intercom to tell her to “come upstairs” to his bedroom to receive a call from Jaquez. Around 2:00 a.m., Jaquez called and told Burgos that Tom “was going to give [her] something,” meaning drugs, “to give to him.” Jaquez also asked her to get Tom “something to eat.”

Burgos agreed and left the house, only to return a few minutes later because she “forgot to get the drugs” from Tom. She parked her car in the driveway and walked through the open gate to the front door, which atypically was not locked. Burgos

[130 Cal.Rptr.3d 10]

saw Ardoin standing in front of their in-law apartment, looking up the stairs toward Tom's residence. Suddenly, Burgos was grabbed from behind in the entryway, thrown to the ground on her stomach, and “hogtied” with her hands bound to her ankles with a rope. She did not see the person who restrained her. Burgos struggled, and heard a voice which she recognized as that of Jaquez tell her to “get down” and “just stay still.” After she was restrained, Burgos also saw Ardoin “go up the stairs” with a “Halloween Jason mask” on his face.

From upstairs Burgos heard pounding, banging, scuffling and odd “snapping” noises. She also heard Tom repeatedly say, “I don't have anything.” Burgos yelled to Tom: “Rodney, if you have anything, please give it to him, please give it to him.” She continued to hear banging, and Tom stated, “There, now go.” After Tom yelled, “Here they come,” and banged his foot, “it got quiet.” Ardoin then came down the stairs with Tom's “tackle box that he kept his drugs in.” He stepped over Burgos, walked out of the front door, and left.

Burgos struggled to release her arms from the rope and untie her ankles. She went up the stairs to “check on” Tom in his bedroom. Tom was lying on his stomach with a piece of carpet over his head. Burgos approached Tom and noticed “a slash in his throat” and “a lot” of blood under his head. She “panicked,” grabbed Tom's cell phone and ran out of the room. She called Ardoin's number, but his...