People v. Casique, A113636 (Cal. App. 5/29/2009)

• Decision Date: 29 May 2009
• Docket Number: A113636.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RAFAEL DIAZ CASIQUE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. RAFAEL DIAZ CASIQUE, Defendant and Appellant.

A113636.

Court of Appeals of California, First Appellate District, Division One.

May 29, 2009.

Not to be Published.

Appeal from the Alameda County Super. Ct. No. H37420.

MARCHIANO, P.J.

Following a jury trial, defendant was convicted of first degree murder (Pen. Code, § 187), with associated enhancements for personal use of a handgun (Pen. Code, § 12022.53, subd. (d)), and infliction of great bodily injury on the victim (Pen. Code, § 12022.7). The trial court imposed an aggregate sentence of 50 years to life in state prison.

In this appeal defendant renews his challenge to a warrant for the search of his residence, makes numerous claims of erroneous admission of evidence, and argues that the trial court erred by failing to give an instruction requested by the defense. We conclude that the search warrant was lawful, no errors in the admission of evidence occurred, and the trial court was not required to give defendant's requested pinpoint instruction. We therefore affirm the judgment.

STATEMENT OF FACTS

According to the established standards that govern appellate review of a judgment of conviction, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Background

The victim of the homicide, Michael Lee, used and sold methamphetamine, engaged in identity theft by fabricating identifications and creating "false checks," managed a tattoo company, and was a known Norteño gang associate with the street name or nickname of "Smiley."¹ In February of 2001, Lee lived in a house on Calcutta Street in Fremont with his girlfriend Audra Silva, Stanley Adams and Adams' girlfriend Cherise, who were all methamphetamine users and participated with Lee in his identity theft activities.

According to expert testimony, defendant was a leader of the "Decoto" or "Decoto Grande" Norteño criminal street gang based in the Decoto area of Union City, and its governing entity, the "Northern Structure." One of the primary activities of the Decoto gang was the sale of methamphetamine or other controlled substances. Defendant was known by the nickname "Joker," and often drove a Cadillac Escalade. Two other Hayward area Norteño — although not Decoto—gang members were presently or previously known by the nickname Joker. An officer with the Alameda County Gang Task Force testified that another Decoto gang member, Hector Cervantes, also used the nickname Joker at one time, but by reputation defendant "was Joker from Decoto."

Defendant and Lee had numerous mutual friends or acquaintances, many of whom were Norteño gang members. Anita Romero, a Norteño affiliate, lived in unit 70 of the Paradise Trailer Park on East 15th Street in San Leandro, and sold methamphetamine there. Romero was introduced to defendant by her boyfriend, Daniel Nieves (Smash),² and defendant thereafter visited her trailer periodically. Lee stayed with Romero intermittently at the end of 2000. Steven Ijames lived in unit 59 of the Paradise Trailer Park, across from Romero. Lee lived with Ijames for a few months before he was killed. Ijames was also a methamphetamine user.

The Shooting of Lee

On the evening of February 3, 2001, Lee arranged to purchase methamphetamine from Romero. Lee enlisted Adams to drive him and Silva to Romero's trailer in his maroon Ford Expedition to pick up the drugs. Before they left, they all smoked methamphetamine that Adams had purchased earlier that day.

On the way to Romero's trailer Lee called to tell her "[W]e'll be there in a few minutes." When they arrived at the Paradise Trailer Park, Adams parked his vehicle on the street, whereupon Lee left the front passenger seat and proceeded to Romero's trailer about 30 feet away. Lee told Adams and Silva that "he'd be right back." On the way to the trailer, Lee encountered his friend Ijames. They both entered Romero's trailer, but she was not there. After a few minutes, Ijames decided to go to a nearby liquor store, and walked out of the trailer park onto East 14th Street.

As Adams and Silva waited in the Ford Expedition for Lee to return, they noticed "two people walk up beside the truck" on the driver's side about six or seven feet away. The trailer park was very well lit, so the two people were quite visible: one was "big, burly," with dark skin, a pock-marked face, and "looked like a gang member;" the other was "familiar" looking to Silva, shorter, slender, with lighter skin and "didn't look threatening." The two men walked to the front of Romero's trailer, where they engaged in a "very hostile" conversation with a third person about "money or something like that." Adams and Silva then heard, "gunshots," and looked up to see two or three "sparks" or "flashes" coming from the front porch of the trailer. The "shorter guy" who had walked by the truck was now facing away from the trailer toward them with his hand "pointing downwards," shooting a gun at the third person. At trial, Adams and Silva both identified defendant as the shooter. As Adams and Silva witnessed the shooting, they did not "know who the victim was at that time."

The three men on the porch then walked "in a huddle" back toward the Ford Expedition. Defendant stopped at the window of the truck as he passed by and momentarily looked inside at Adams and Silva. They then heard someone behind them say, "Maybe next time you'll pay me my fuckin' money," before "one last shot" was fired at the rear of the truck. Adams and Silva looked back and realized that the shooting victim was Lee as he slumped down and leaned against the rear window. They got out of the truck and ran to assist Lee. They both asked him, "Who did this to you," and he twice replied, "Joker from Decoto." Silva thought she "knew who that was," having met him once a few years before, but Adams had never heard of "Joker."

Lee was bleeding as he staggered across the road to Ijames' trailer and banged on the door before he collapsed on the front porch. Silva "called 911" on her cell phone as Ijames arrived at his trailer.

Ijames testified that as he was walking to the store he heard shots and immediately returned to the trailer park. As he approached his residence, Ijames heard a woman hollering and screaming, "[H]e has been shot." Ijames observed Lee on the steps of his trailer. Silva asked Ijames for the trailer park address, then handed him her cell phone. Ijames gave the address to the 911 operator. An ambulance and police vehicles arrived soon thereafter.

Deputy Richard Slofkosky of the Alameda County Sheriff's Office testified that he arrived at the Paradise Trailer Park just after midnight to find Lee "laying [sic] on the porch" face down in front of unit 59. Deputy Slofkosky heard "gurgling sounds" coming from Lee, and noticed that his clothes were saturated with blood. The deputy shook Lee to get a response; Lee moved and gasped for breath. Deputy Slofkosky asked Lee if he knew he had been shot, and Lee said that he did. In response to Deputy Slofkosky's inquiry, Lee indicated that he knew who shot him, and "then he said Joker." When Lee repeated "Joker," the deputy asked, "what street he lived on." Lee replied, "I don't know. He is from Decoto." Deputy Slofkosky then asked, "why Joker had shot him," and Lee said, "I owed him money."

Lee began to complain of breathing difficulty and his "eyes started to roll backwards," so Deputy Slofkosky urged him to "hang on because paramedics were on their way." Within two to four minutes paramedics arrived to treat Lee. He was then transported to the hospital, where he died from two gunshot wounds: one "straight into" the chest that passed through the left lung and lodged in his back; the other a "large hole" to the left knee that severed major blood vessels.³ The cause of death was loss of blood from "multiple bullet wounds." Present around the wounds was a "great deal of gunshot stippling" on the skin, which indicated that the shots had been fired from a distance of 18 inches to two feet. A criminalist examined the hollow point bullet fragments recovered from the victim and determined that the weapon used to shoot Lee was one of three similar "nominal .38" weapons: a .38 caliber revolver, a .357 magnum, or a 9 millimeter pistol. A very high level of methamphetamine was found in Lee's blood.

The Police Investigation Following the Shooting

Both Adams and Silva were interviewed by the police at the scene of the shooting and thereafter. Silva testified that she gave statements to the police "over and over and over again" at the scene before she was finally allowed to go to the hospital, where she learned that Lee "was dead." Silva did not want to give information to the investigating officer because she "didn't trust" the police after they refused to let her "go to the hospital," and thought they were "doing a bad job."

A few hours after the shooting, Silva called her friends Naomi Navarro and Melissa Maya at a "drug house" on Blossom Way in Hayward—often referred to in the testimony as the "Blossom house"—to try to discover the "real name" of "Joker from Decoto." Maya gave Silva a name, which she passed on to the police that morning. Maya told Silva that in the past she owed money to Joker from Decoto. She added that "he'll shoot anybody, like, he doesn't care if you're a mother or if you have kids or whatever. He'll shoot you if you owe him money." Silva's friends also told her that Joker from Decoto was a gang member. Maya and another friend who frequented the Blossom house, Kevin Jones (Ickey), told Silva that "people there" were "not happy about the questions" she was asking, and advised her to "stop."

Ralph Castillo, an influential affiliate of the Norteño street gangs in Hayward...