People v. Ceja, B076169

• Decision Date: 23 June 1994
• Docket Number: No. B076169,B076169
• Citation: 31 Cal.Rptr.2d 475,26 Cal.App.4th 78
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leopoldo CEJA, Defendant and Appellant.

Page 475

31 Cal.Rptr.2d 475

26 Cal.App.4th 78

The PEOPLE, Plaintiff and Respondent, v. Leopoldo CEJA, Defendant and Appellant.

No. B076169.

Court of Appeal, Second District, Division 7, California.

June 23, 1994.

[26 Cal.App.4th 81] Martin Nebrida Buchanan, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen LILLIE, Presiding Justice.

and Steven D. Matthews, Deputy Atty. Gen., for plaintiff and respondent.

Leopoldo Ceja appeals from judgment entered following a jury trial in which he was convicted of second degree murder and exhibiting a firearm. (Pen.Code, §§ 187, subd. (a), 417, subd. (b).) The jury found that in connection with the murder, Ceja caused great bodily injury and death by discharging a firearm from a motor vehicle within the meaning of Penal Code section 12022.55, and that he personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). Ceja contends the trial court committed several instructional errors which were prejudicial, and that it prejudicially erred in allowing the preliminary hearing testimony of a witness to be read to the jury.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On March 8, 1992, Joe Avila was on the southeast corner of Alondra and Tamarind talking on the phone when defendant approached and asked where he was from. ¹ Defendant said, "fuck the '70s and stuff," and Avila responded that he didn't "bang." Avila rode his bike around the corner and defendant followed, driving a blue Escort. When Avila stopped, defendant pointed a gun at him and said he was going to kill him. Avila did not have a gun or any other type of weapon and said something to the effect, "Yeah, go ahead. You tough because you got a gun. That's all." Defendant drove away. About four or five minutes later, Avila heard approximately four shots; he then went to Alondra and Willowbrook thinking someone might have gotten killed, and saw a lot of people and a "guy laying down." An officer took Avila to Compton Boulevard where he identified the defendant. ²

Rafael Padilla, previously convicted of armed robbery and being an ex-felon with a gun, "used to run" with the "CV-70's" gang. "CV" stands for "Compton Varrio" and is a primarily Hispanic gang with about 200 to 300 members. The CV-70's belong to an area near Willowbrook and Alondra.

On March 8, Rafael Padilla was hanging out and drinking on Caldwell and Alameda when his brother, Juan Padilla, rode up on a bicycle. After drinking at the location for about a half hour, the brothers drove to a liquor store on Willowbrook and Alondra. Several other cars also drove to the liquor store. Rafael Padilla parked his car on the sidewalk and Juan Padilla entered the store. Two or three "home boys" also with CV-70's went into the store; Juan Padilla stayed in the liquor store for no longer than five minutes and then walked out and put a bottle of liquor in someone else's car. He then walked to his brother and Alberto Robles, who were talking, and listened to their conversation. Defendant drove up in a blue Escort automobile and asked the time. Juan Padilla turned around, said "what" and walked towards the car, holding a Corona beer in his hands. He did not point a gun or shoot a gun. Robles walked behind him and Rafael Padilla walked behind Robles. Rafael Padilla was getting ready to look at his watch when he heard some gunshots. As he looked up, he saw his brother falling. Defendant was pursued by Raphael Padilla and subsequently arrested. Juan Padilla died from a gunshot wound to the chest.

Neither Rafael Padilla nor Juan Padilla wore a gun that day. If Juan Padilla had been wearing a gun under his clothing he would have shown it to his brother. CV-70's are also called the " '70s." If someone were to say something like "fuck the '70s" that would be "disrespecting the '70s." Juan Padilla was mellow, not very drunk and not hostile at the liquor store.

Compton police officer Roderick Pettus took defendant into custody and searched his Compton police officer Stoney Jackson collected evidence at the crime scene. No weapon was found, but two expended bullets and one expended .380 caliber casing were found. Jackson inspected the blue Escort automobile, looking for additional casings, bullets, bullet holes, etc. He found no bullets, casings or bullet holes on the exterior or interior of the vehicle. He inspected Rafael Padilla's automobile and found no guns, bullets or expended casings.

car. Pettus recovered a small caliber handgun from underneath the steering column dash and two expended .380 casings, one from the front of the vehicle and the other from the rear of the vehicle. One unexpended round was jammed into the chamber of the firearm and two live rounds were in the magazine inside the weapon.

During an autopsy of Juan Padilla, the deputy medical examiner recovered a bullet which had been fired from the gun found in defendant's automobile.

Defense

Defendant testified that on March 8, he was near the courthouse, somewhere on Raymond, dropping off one of his brother's friends. To get home, he drove north on Tamarind. When he got to Alondra he asked a guy at a pay phone (Avila) "where he was from," because he just wanted to know "where he was from"; he knew he was in the CV-70's neighborhood; he is in a rival gang, the "CV T-Flats." Avila responded, but he (defendant) was listening to the radio and didn't know exactly what was said; he figured Avila was a CV-70 and said, "fuck the '70s" to "disrespect" them; Avila rode off on a bike, and he followed Avila to intimidate and scare him; when Avila stopped, he stopped his car and had a discussion with him and asked why he had to run; when he called Avila a punk, Avila approached, and he pulled out a gun; he did not point it at Avila, just showed it to him, and said to stay right there; he only intended to intimidate and scare Avila.

Defendant further testified he then drove down Raymond and turned right on Willowbrook and drove to Alondra; while on Alondra, a train was passing; since he had to wait for the train, he decided to go to a liquor store and get a soda; while looking for a place to park, three people came out of the store, one of whom asked him, "What do you want, what do you want," so he asked him for the time; while Rafael Padilla looked at his watch, Juan Padilla approached and with his right hand pulled out a revolver from his waistband; he saw the barrel of the gun and got scared, extended his arm and, without aiming, fired three times; he did not want to hurt Juan Padilla but was scared; if Juan Padilla had shot him, he would get killed; he was just defending himself, and fired three rounds; he was not sure if Juan Padilla fired his gun, it happened so fast; he did not shoot at any of the other people in the liquor store; he drove away from the scene because he believed Rafael Padilla would come after him and do something.

Defendant carried a gun for protection; where he lives a lot of things happen; there are a lot of gang related shootings; rival gangs hate each other; you do not really go into other gangs' neighborhoods, if you do, you might get shot; by going into their neighborhood as a "T-Flat," he was kind of "disrespecting" them, especially by saying, "fuck the '70s"; the store where he shot Juan Padilla was not the same store at which the incident with Avila occurred.

After the shooting, an analysis for gunshot residue was performed on Juan Padilla's hands; a particle of gunshot residue was found on his right hand. There was also a second particle that was consistent with gunshot residue but not unique to it. One can get a particle of gunshot residue on his hand from firing a gun, handling a gun that has residue on it, being in close proximity to a firearm discharge, touching something other than a gun with residue on it, or being touched by someone with residue on his hands. It is unpredictable how much gunshot residue or particles are shot out from a Davis .380, but the defendant's criminalist testified he would expect more than one particle. He said the shot itself produces thousands of particles; if someone fired a gun there is probably a good chance that someone would have more than one particle deposited at the time of a shot; whether more An analysis of a blood sample taken from the victim revealed the blood contained ethanol and cocaine. Ethanol is drinking alcohol. The blood-alcohol level was 0.13 grams percent; the cocaine level was 0.06 micrograms per milliliter and the metabolite was 0.84 micrograms per milliliter. Metabolite is a breakdown product of cocaine. When ethanol and cocaine are taken at the same time, there is a possibility of a drug being formed called ethyl cocaine or cocaethylene. The influence or the effect of the substances is potentiated or increased.

than one particle could be identified at some later time when the samples are taken is another question; he has examined samples from suspected shooters where only one or two particles were found.

Dr. Terence McGee testified that a combination of cocaine and alcohol prolongs the effect of the substances, and the effects of such a combination are much greater than the effect of either substance singularly. One with a combination of the drugs in his system would have much more of a tendency to "fly off the handle," or do things that might not occur to him in a sober state. If a person has a tendency towards being hostile, the combination of substances would "throw fuel on the fire." It would not be uncommon for such persons to be calm in their demeanor at one moment in time and the next moment be aggressive.

I

JURY INSTRUCTIONS RE VOLUNTARY AND INVOLUNTARY MANSLAUGHTER

With respect to the murder count, appellant contends the trial court committed reversible error by failing to...