People v. Chavez
| Decision Date | 28 March 2018 |
| Docket Number | D069533. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SALVADOR OSWALDO CHAVEZ et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant Salvador Oswaldo Chavez.
Dacia A. Burz , under appointment by the Court of Appeal, for Defendant and Appellant Daniel Arce Gonzalez.
Xavier Becerra , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall , Deputy Attorneys General, for Plaintiff and Respondent.
Summer Stephan , District Attorney, Mark A. Amador , Chief Deputy District Attorney, Linh Lam , Assistant Chief Deputy District Attorney, and Vanessa C. Gerard Benner , Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
Following a physical altercation involving two groups of men, defendant Salvador Oswaldo Chavez knifed a member of the other group in the back and defendant Daniel Arce Gonzalez shot and killed another member of that group. Chavez and Gonzalez appeal judgments following their jury convictions of second degree murder (Pen. Code, § 187, subd. (a))1 and assault with a deadly weapon (§ 245, subd. (a)). On appeal, Chavez contends: (1) the trial court erred by admitting an eyewitness's in-court identification of him that was the result of an unduly suggestive pretrial identification procedure; (2) the court erred by improperly limiting the scope of opinion testimony by his eyewitness identification expert; (3) there is insufficient evidence to support his conviction of second degree murder; and (4) the court erred by instructing with CALCRIM No. 571 on imperfect self-defense or imperfect defense of another but omitting imperfect defense of Gonzalez. Gonzalez joins in Chavez's contentions and also contends: (1) the trial court erred by instructing with CALCRIM No. 3471 on the right of self-defense but omitting language stating that an aggressor who initially uses only nondeadly force regains the right to self-defense when his or her opponent counters with deadly force; (2) the court erred by instructing with CALCRIM No. 3472, but not modifying it with language stating that a person who provokes a fight with an intent to use nondeadly force regains the right to self-defense when his or her opponent counters with deadly force; and (3) the court abused its discretion under Evidence Code section 352 by admitting the testimony of an eyewitness regarding the death threat he (Gonzalez) made to dissuade that eyewitness from testifying at trial, and also abused its discretion by denying his motion for mistrial. Chavez joins in Gonzalez's contentions. After the parties submitted their briefs in this case, Gonzalez filed a supplemental brief arguing that we should: (1) conclude the provisions of Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, apply retroactively to judgments not yet final; and (2) remand the matter for resentencing to allow the trial court to exercise its discretion to strike or dismiss the section 12022.53 firearm enhancement. Based on our reasoning post, we affirm the judgments.
On June 17, 2014, the Rincon Del Mar restaurant in National City was filled with customers, many of whom were there to watch the World Cup soccer match between Mexico and Brazil. There was one group of customers with ties to Tijuana, including Gonzalez, Chavez, Alfonso Vasquez, Vincente Roldan, and brothers Vicente Gutierrez (Vicente) and Rafael Gutierrez (Rafael). Another group of customers had ties to National City, including Josue Crook, Edward (also known as Eddie) Lopez, Jesus Morfin, Anthony Aguilar, Tomas (also known as Tommy) Lujan, and Enrique Chavez.2
After the match, Rafael argued with Morfin in front of the restaurant about whether he had a problem with his brother Vicente. When Morfin approached Vicente, Vicente punched him in the face, causing him to fall to the ground unconscious. Vicente and Rafael beat Morfin while he was unconscious on the ground. Meanwhile, Gonzalez hit Aguilar in the face, causing him to fall unconscious onto Lujan who had been standing nearby. While on the ground, Lujan was punched by Gonzalez. Lujan escaped by crawling under a flatbed truck that was parked on the street directly in front of the restaurant. When Lujan tried to get out from under the truck, Gonzalez kicked him in the face. From under the truck, Lujan saw Gonzalez pacing back and forth, holding a pistol by his side. During the fight, Gonzalez and Chavez at times were back to back and then face to face. Other members of the two groups also began fighting with each other.
After Juan Carlos Lopez, the restaurant's owner, broke up the initial physical altercation, the combatants moved away from the restaurant. Rafael and Vicente ran southward as Eddie Lopez chased them.3 When Eddie Lopez was about 15 feet away from them, he threw a beer bottle at them, possibly striking one of them, and then ran back toward the restaurant. While Eddie Lopez was running after them, Gonzalez ran in Eddie Lopez's direction and, from a distance, pointed a gun at his back. Crook, who had just come out of the restaurant, and Lujan approached Gonzalez from behind and Crook tapped him on the shoulder. Gonzalez spun around and shot Crook twice at pointblank range, striking him in the chest near his armpit and in the upper right side of his back.4 Immediately before being shot, Crook put up his hands and began turning away from Gonzalez. Except for possibly a plastic cup, Crook did not have anything in his hands at the time and no weapons were found on or near him. Gonzalez then pointed his gun at Lujan, but Juan Carlos Lopez intervened and begged him not to shoot. Crook died from his gunshot injuries.
While Eddie Lopez was running away from the Gutierrez brothers, he saw Chavez chasing after him with a knife in his hand. However, immediately after Gonzalez shot Crook, Chavez stopped his chase and ran eastward with Gonzalez. Chavez and Gonzalez got into a black truck and fled the scene. Remaining at the scene, Eddie Lopez felt his shirt was wet and then realized he had been stabbed in the back.5
Gonzalez was arrested in Mexico and extradited to the United States. Police searched Chavez's house and found two folding knives and clothing matching what he was seen wearing on the day of the shooting. Juan Carlos Lopez told police the restaurant's surveillance camera was inoperable because a car crashed into the restaurant two to three weeks before the shooting. However, police searched the restaurant and found a flash drive containing a five- to seven-minute video recording from one of its surveillance cameras, which recording showed, inter alia, the initial physical altercation between the two groups' members and Crook placing an object on the flatbed truck and then picking it back up before the shooting. During a police interview, Juan Carlos Lopez admitted he initially lied about not seeing who shot Crook because he feared retaliation. Cell phone records showed there were 12 calls between Gonzalez's phone and Chavez's phone on the day of the shooting.
An information charged Gonzalez and Chavez with the murder of Crook (§ 187, subd. (a)) and with the assault on Eddie Lopez with a deadly weapon (§ 245, subd. (a)(1)). It also alleged that Gonzalez committed the murder while out of custody on bail pending a final judgment for a prior felony offense (§ 12022.1, subd. (b)), personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and had served three prior prison terms (§ 667.5, subd. (b)).
At the joint trial of Gonzalez and Chavez, the prosecution presented evidence substantially as described ante. In his defense, Gonzalez presented, inter alia, the testimony of Roldan, who stated he was hit during the fight and knocked to the ground. Roldan did not see either Gonzalez or Chavez attack or shoot anyone. In his defense, Chavez presented the testimony of Scott Fraser, an eyewitness identification expert, who testified generally about how alcohol, memory convergence, and stress could result in an eyewitness's faulty memory. The jury found Gonzalez and Chavez guilty on both counts and found true the firearm allegation.6 The trial court sentenced Gonzalez to an indeterminate term of 40 years to life in prison plus a consecutive determinate term of seven years.7 The court sentenced Chavez to an indeterminate term of 15 years to life in prison plus a consecutive determinate term of two years. Gonzalez and Chavez each timely filed a notice of appeal challenging the judgments against them.
Chavez contends, and Gonzalez joins in his contention, that the trial court erred by admitting Eddie Lopez's in-court identification of him (Chavez) as the man who stabbed him. In particular, Chavez argues Eddie Lopez's in-court identification was the result of a pretrial identification procedure that was unduly suggestive and that pretrial identification was unreliable under the totality of the circumstances.
Before trial, Chavez filed an in limine motion to exclude evidence of Eddie Lopez's pretrial identification of him as the man who stabbed him in the back. Noting that during a pretrial interview with police Eddie Lopez described his attacker as wearing a red T-shirt and blue jeans and the police detective showed him only his (Chavez's) photograph, he argued Eddie Lopez's pretrial identification was unduly suggestive and should be excluded because there were at least two people wearing red shirts and blue jeans. He also argued the photograph shown Eddie Lopez depicted him (Chavez) holding something in his hand, which made the pretrial identification more suggestive.
The prosecutor opposed the motion,...
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