People v. Bento

• Decision Date: 29 June 1998
• Docket Number: No. B108078,B108078
• Citation: 65 Cal.App.4th 179,76 Cal.Rptr.2d 412
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Daily Journal D.A.R. 7224 The PEOPLE, Plaintiff and Respondent, v. Richard Allen BENTO et al., Defendants and Appellants.

Page 412

76 Cal.Rptr.2d 412

65 Cal.App.4th 179, 98 Daily Journal D.A.R. 7224

The PEOPLE, Plaintiff and Respondent, v. Richard Allen BENTO et al., Defendants and Appellants.

No. B108078.

Court of Appeal, Second District, Division 4, California.

June 29, 1998.

Review Denied Oct. 14, 1998.

[65 Cal.App.4th 182] Barbara A. Smith and Marilyn S. White-Redmond, under appointments by the Court of Appeal, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

CHARLES S. VOGEL, Presiding Justice.

RELEVANT PROCEDURAL BACKGROUND

On September 9, 1996, an amended information was filed against appellants Anthony Ternell Johnson and Richard Allen Bento. Count 1 charged appellants with first degree murder. (Pen.Code, § 187.) Count 2 charged appellants with attempted willful, deliberate, and premeditated murder. (Pen.Code, §§ 664, 187.) Counts 1 and 2 also alleged that both appellants were armed with a firearm. (Pen.Code, § 12022, subd. (a)(1).)

                Count 3 charged Bento with robbery (Pen.Code, § 211), and counts 4 and 5 charged Bento with assault with a firearm (Pen.Code, § 245, subd.  (a)(2)).  Counts 3 through 5 also alleged that Bento personally used a firearm.  (Pen.Code, §§ 1203.06, subd.  (a)(1), 12022.5, subd.  (a).)  Finally, the information alleged that Johnson had suffered a prior felony conviction.  (Pen.Code, § 667, subd.  (a)(1).)   Appellants pleaded not guilty and denied the special allegations
                

Trial by jury commenced on September 12, 1996. On September 30, 1996, the jury found Johnson guilty on counts 1 and 2, and found true the allegations that he was armed pertaining to these counts. The jury was deadlocked with respect to counts 1 and 2 against Bento, but found Bento guilty of counts 3 through 5, and found true the use allegations pertaining to these counts. The trial court declared a mistrial with respect to counts 1 and 2 against Bento.

Pursuant to a plea agreement, Bento subsequently withdrew his plea of not guilty as to count 1, and pled no contest to voluntary manslaughter. (Pen.Code, § 192, subd (a).) Count 2 against Bento was dismissed.

On November 25, 1996, the trial court found true the prior serious felony allegation against Johnson, and sentenced him to prison for a total term of 34 years to life, plus life with the possibility of parole. On December 2, 1996, the trial court sentenced Bento to prison for a total term of 12 years. These appeals followed.

FACTS

A. Prosecution Evidence

In June 1993, appellant Johnson was a member of the 84 Swan Blood gang. He had a tattoo across his front torso that stated "Bloodline," a mark of Blood gang affiliation. Appellant Bento was then also affiliated with the 84 Swans.

Robert Smith lived with his brother and grandmother, Sara Roberson, at 222 East 82d Place in Los Angeles. Smith was a member of a gang known as the Main Street Crips, and his moniker was "Little Tony Rhone." Smith's brother was also a member of the same gang and was known as "Little Fox."

The Main Street Crips and the 84 Swans had been engaged in an active feud. The Main Street Crips gang color is blue, and the 84 Swans gang color is red. Smith's house was on the border between Blood and Crip gang territory.

Chester Finley lived across the street from Smith. Finley had been a member of a gang known as the 20 Outlaws, but was then affiliated with the 84 Swan Blood gang. Finley knew appellant Johnson, and also knew of appellant Bento under the nickname "Pookie."

On June 13, 1993, Smith was at home with Sara Roberson. Hironori Thomas James and a young woman named "Danny" drove to Smith's house in a green four door Pinto and arrived at approximately 9 p.m. James, known to Smith as "Pookie," was another member of the Main Street Crips and was wearing blue and yellow clothing.

James testified as follows: After James and Danny entered Smith's house, James returned to the Pinto, where he sat in the passenger seat, smoking a cigar and playing the radio. Johnson approached the driver's window of the Pinto and asked, "Hey, man. Is Fox in there?" ¹ James responded, "No, he's not." Johnson walked away from the car towards the house and then lifted up his shirt. James dove under the Pinto's steering wheel. James heard several shots and glass flew inside the Pinto. When the shooting stopped, James fled the car and ran to his own home.

Smith testified that after a pause in the shooting, he and his grandmother went to the front door of the house to check on James. As Smith opened the door, he saw three shadows and the shooting resumed. Smith retreated from the front door and discovered that his grandmother had been shot. Sara Finley testified that at some point during the evening of June 13, 1993, Finley encountered Johnson and Bento at a liquor store at 82d Street and San Pedro. Johnson indicated to Finley that he had been involved in a shooting at Smith's house and that he had tried to shoot Fox. Johnson asked Finley to let him know if Johnson's name came up in connection with the shooting.

Roberson eventually died from a gunshot wound to her torso.

In June 1993, Hugo Echeverria lived near 83d Street and Avalon, approximately four blocks from Smith's house. At approximately 10 p.m. on the same evening, Echeverria, Ivonne Ortiz, and Jose Alaniz were in an alley near Echeverria's residence, listening to music from a radio in Echeverria's Camaro. Bento approached, fired a gun three times into the air, announced that he was taking the Camaro, and pointed his gun at the group. He then drove the Camaro down the alley to 83d Street.

Echeverria and several friends followed the Camaro in a truck but lost sight of it. When they returned to 83d Street, they found the Camaro parked on 83d Street, approximately two blocks from Echeverria's residence. Echeverria saw Bento and another person at a nearby corner, where they entered a car that had pulled up.

At approximately the same time, Juan Trujillo Curiel exited his house in the vicinity of 83d Street and saw a Camaro stop near his house. ² The car's passenger tried to enter Curiel's yard, but Curiel denied him entry. The passenger grabbed something from the car's interior and walked to some bushes. The passenger and driver then walked away. Several Hispanic men soon arrived in a truck and expressed surprise at finding the Camaro. Curiel discovered a weapon where the passenger had walked.

Police later found a nine millimeter handgun in the bushes near Curiel's house. Tests indicated that 11 casings and 2 bullets found at Smith's house had been fired from the recovered handgun. Four .32 caliber casings and one .32 caliber bullet were also discovered at Smith's house. No identifiable fingerprints were found on the nine millimeter handgun. No identifiable fingerprints on the Camaro matched Johnson's or Bento's fingerprints.

Finley did not give any information to the police concerning the shooting at Smith's house until the summer of 1995, when Finley identified Johnson from two photographic six packs and mentioned the name "Pookie." At trial, Finley testified that he did not contact the police earlier because he had been addicted to drugs, and that he came forward when his conscience troubled him and he realized that the victim could have been his elderly mother, who resided in the area.

James also did not give police any information until the summer of 1995. He testified that he did not assist the police because he was afraid. In July 1995, a police officer in Kansas City showed James a laser copy of a photographic six pack including Johnson's picture, but James was unable to identify anyone. Several days later, he identified Johnson when he was shown the original six pack, and he gave two statements concerning Johnson's involvement in the shooting. At trial, James attributed his original inability to identify Johnson to the poor color quality of the laser copy.

One day before Curiel testified at trial, he was shown a photographic six pack and identified Bento as resembling the Camaro's passenger. At trial, Curiel identified Johnson as the Camaro's passenger.

B. Defense Evidence

Bento presented no evidence on his behalf. Johnson presented the following evidence:

On September 13, 1993, Curiel was shown photographic six packs containing pictures of Johnson and Bento, but he was unable to identify either appellant.

A police report stated that Finley had told the police that he was at 83d and Town when Johnson, who was drinking with some people, told Finley that he had been involved in the shooting.

When Detective Thomas Mathew first interviewed James in July 1995, James indicated The parties stipulated that Finley was on felony probation on June 7, 1995, and that he remained on felony probation at the time of his testimony.

that one of his reasons for not approaching the police was that he believed he was wanted by the police, but Mathew did not record this statement in his report. Myra Thomas, a defense investigator, testified that James told her that he had believed there was a warrant for his arrest, and he also indicated that he understood that Mathew would take care of the warrant.

DISCUSSION

A. Johnson's Appeal

Johnson contends that (1) the trial court erred in refusing to reconvene the jury, (2) insufficient evidence supports Johnson's convictions, and (3) the trial court improperly excluded evidence concerning Finley's credibility.

1. Refusal to Reconvene Jury

Johnson contends that the trial court improperly refused to reconvene the jury after a juror expressed doubts about the verdict. We disagree.

"Every criminal defendant is entitled to a unanimous verdict. (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265, 148 Cal.Rptr. 890, 583 P.2d 748....) And to...