People v. Chico
| Decision Date | 21 July 2014 |
| Docket Number | B243943,B251291 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LUIS ANGEL CHICO, Defendant and Appellant. In re LUIS ANGEL CHICO on Habeas Corpus. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis E. Mulcahy, Judge. Affirmed. Petition for writ of habeas corpus. Denied.
Law Offices of Loren Nizinski, Loren Nizinski and Beverly Swanson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Luis Angel Chico appeals from the judgment entered following a jury trial that resulted in his conviction for first degree murder. Chico was sentenced to a term of 50 years to life in prison.
Chico contends: (1) he was denied the effective assistance of counsel; (2) there was insufficient evidence to support his conviction; (3) his motion for a continuance of the preliminary hearing was improperly denied; and (4) his due process rights were violated when the jury saw him being led into a lockup area. He avers the trial court erred by (5) committing various instructional errors; (6) allowing the prosecutor to use improper hypothetical and other questions; (7) sustaining improper objections during defense counsel's argument; (8) failing to appoint a defense ballistics expert; (9) failing to exclude a witness from the courtroom during trial; and (10) denying his new trial motion. In a petition for a writ of habeas corpus, which we consider concurrently with his appeal, Chico reiterates many of these claims, particularly his contention that his counsel was ineffective. Discerning no prejudicial error or ineffective assistance, we affirm the judgment and deny the writ petition.
Viewed in accordance with the usual rules governing appellate review (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following.
Leonor Alvarez owned "Lucky 8 Billiards," a pool hall located on Victory Boulevard in Van Nuys. Chico and his aunt were both regular customers, and socialized with Alvarez away from the pool hall as well.
Rosalia Bello, who went by the nickname Sandy, and Rafael Marcos had three children together. Bello, Rafael, their children, Rafael's cousin Raul Marcos,1 and their friend Jose Fabian Hernandez, along with other persons, lived together in a house very close to the pool hall.
On Friday, October 22, 2010, Alvarez was working at the pool hall. Vicente Martinez was bartending, and Karina Nolasco was working as a waitress. Raul, Rafael, and another cousin, Raymundo Marcos, arrived at the pool hall at approximately 9:00 p.m., and became intoxicated after drinking multiple pitchers of beer. A man passed their table, asked why Raul was looking at him, and stated that he wanted to fight him. Raul responded that he did not want to fight.
Chico arrived at the pool hall at approximately 11:30 p.m. There were between 20 and 40 people in the hall at that time, including patrons and employees. Chico socialized with his friends Claudia Briceno and Martha Martinez Vegas. Shortly after his arrival, Chico informed Alvarez she needed to remove some customers who were "fucking with him." Chico pointed out three men who were sitting at a nearby table. Chico appeared upset, and Alvarez told him to calm down. Chico told Alvarez that if she did not remove the men, "he would shoot them."
Alvarez approached the men's table and asked if everything was all right. They responded that everything was fine and they were leaving. One of them kissed Alvarez's hand as he got up. They walked towards the pool hall's Victory Boulevard exit together. As they passed Chico, the man who had kissed Alvarez's hand punched Chico in the face. Alvarez did not see who started the fight, but did see Chico return the blow. Chico pulled a revolver from his waistband and pointed it either toward the group or upwards. He seemed very angry. Alvarez grabbed Chico's hand and said, "Don't do it, Luis." He broke loose from her grasp and pushed her away. She moved away and heard, but didnot see, a gunshot. She heard a second shot five to six seconds later. When Chico fired, the three men were "around Chico."
Waitress Nolasco, who was taking empty containers to the bar, heard a gunshot and turned to see Chico holding a gun, pointed upwards, with Alvarez next to him. She heard a second shot within a second or two. Bartender Martinez heard two shots while at the bar with his back turned. He turned around and saw Chico holding a revolver either after or simultaneously with the second shot. Chico appeared to be pointing the gun toward the ground. Raul was in the restroom when he heard one gunshot. When he emerged he saw Chico pointing a gun toward the pool hall exit. Raul did not see his cousins Rafael or Raymundo, so he headed home.
Immediately after Chico fired the shots, the pool hall patrons, including Chico, left the building through the Victory Boulevard exit. No witness reported hearing any further shots. Alvarez noted a bullet hole in the ceiling. Martinez and Alvarez, unaware that anyone had been shot, closed up the business for the night. Alvarez testified that she and Martinez left at approximately 11:50 p.m. Martinez testified that they left approximately seven minutes after the gunshots.
Hernandez and Bello were at home. Bello answered a telephone call near midnight and thereafter appeared scared and worried. Based on her statements, Hernandez exited the house to look for Rafael. Raul encountered Bello and Hernandez outside the home. He stayed with Bello while Hernandez looked for Rafael. Hernandez discovered Rafael sitting in front of a Baskin Robbins store close to the pool hall, suffering from a gunshot wound. Rafael stated, " 'I got fucked.' " Hernandez called 911, but Rafael lost consciousness and died before the ambulance arrived. While Hernandez was on the phone with 911, approximately six to seven people were still exiting the pool hall. Hernandez did not hear any gunshots while searching for Rafael.
Meanwhile, based on comments made by an unidentified man who spoke to Raul in front of the house, Raul also began searching for Rafael. When he arrived in front of the Baskin Robbins, Hernandez was already with Rafael, and Rafael was no longer speaking.
Officers responding to the scene found Rafael's bloody clothes in front of the Baskin Robbins store, 75 feet from the pool hall exit, where they had been cut off by paramedics treating him. There was also blood on the sidewalk in front of the Baskin Robbins and 20 feet east in the parking lot. No witness reported seeing blood in or in front of the pool hall. Police did not observe bullet casings or projectiles in the Baskin Robbins parking lot.
Telephone records showed that a call had been placed from Rafael's cellular telephone at midnight to Raul, but the call was not answered. At 12:01 a.m., there was an outgoing call from Rafael's phone to Bello that was not answered. At 12:02, there was an incoming call to Rafael's phone from Bello that was answered. Bello told Detective Peter Barba that during the call, Rafael told her he had been shot.
No witness reported seeing Rafael hit with the gunshot or reacting as if wounded in the pool hall.
The day after the shooting, Alvarez discovered several bullet fragments inside the pool hall near the entrance. She picked them up with a paper towel and placed them in a Gatorade bottle that she then hid in a box near the "boiler" at her home. When a detective interviewed Alvarez, she had her daughter retrieve the fragments and give them to him.
Forensic analysis of a bullet found in the pool hall ceiling, referred to at trial as item 17, showed the shot was fired from the back of the hall toward the front of the hall. Item 17 tested negative for the presence of blood. The bullet fragment placed in the Gatorade bottle, referred to at trial as item 18, tested presumptively positive for blood; however, such a test is not conclusive and may give false positive results. No DNA was found on item 18. Both projectiles appeared to be, or had been, jacketed hollow point bullets. Because item 17 consisted of core material only, it was not possible to determine whether the bullets were fired from same gun or were the same type of bullet.
An autopsy revealed that Rafael's fatal wound was a through-and-through gunshot wound that entered in his right lower back and exited through the front chest. The bullettrajectory was from right to left, and upwards at an approximate 45-degree angle. The wound was consistent with the victim being slightly bent over at a downwards angle when he was shot. In the opinion of Dr. Vladimir Levicky, the deputy medical examiner who performed the autopsy, the shot was a close contact wound. The gun had probably been placed against the victim's clothing, and had to have been fired from a distance of less than three feet. The shot perforated the liver and the peripheral part of the right lung, which would probably have collapsed within one to two minutes. Because no major blood vessels were severed, bleeding was primarily internal. Most of the blood accumulated inside Rafael's body and was absorbed by his clothing. A victim of this type of wound would have had trouble...
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