People v. DeJesus

• Citation: 38 Cal.App.4th 1,44 Cal.Rptr.2d 796
• Decision Date: 06 September 1995
• Docket Number: No. B078150,B078150
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7082, 95 Daily Journal D.A.R. 12,057 The PEOPLE, Plaintiff and Respondent, v. Jude C. DeJESUS et al., Defendants and Appellants.

Page 796

44 Cal.Rptr.2d 796

38 Cal.App.4th 1, 95 Cal. Daily Op. Serv. 7082,

95 Daily Journal D.A.R. 12,057

The PEOPLE, Plaintiff and Respondent, v. Jude C. DeJESUS et al., Defendants and Appellants.

No. B078150.

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

Sept. 6, 1995.

Rehearing Denied Oct. 3, 1995.

Review Denied Dec. 14, 1995.

George L. Schraer, under appointment by the Court of Appeal, San Diego, for defendant and appellant Jude C. DeJesus.

Mark Alan Hart, Northridge, for defendant and appellant Ian Duncan.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General for plaintiff and respondent.

SCHIAVELLI, ^* Associate Justice.

Appellants, defendants below, Jude C. DeJesus ("DeJesus") and Ian S. Duncan ("Duncan"), appeal their convictions, after a jury trial, of one count of murder (Pen.Code § 187 subd. (a)). With respect to the murder convictions of both appellants, the jury found true the special circumstances that the murder was intentional and carried out for financial gain (Pen.Code § 190.2, subd. (a)(1)) and that the murder was committed while lying in wait. (Pen.Code § 190.2, subd. (a)(15).) As to appellant Duncan, the jury also found true the special circumstance that the murder was committed during the commission of a felony, i.e., robbery. (Pen.Code § 190.2, subd. (a)(17).) Also as to Duncan, the jury found true a principal armed allegation. (Pen.Code § 12022, subd. (a)(1).) As to appellant DeJesus, the jury found true an allegation he personally used a firearm in the commission of the murder. (Pen.Code § 12022.5, subd. (a).) ¹ Appellants were sentenced to life without the possibility of parole and were given no custody/conduct credits.

On appeal, both appellants contend the trial court denied them due process when it permitted the magistrate who heard the preliminary hearing to conduct the trial. They further argue the trial court erred in (1) failing sua sponte to instruct the jury on involuntary manslaughter, (2) failing to give a requested instruction that a prosecution witness was an accomplice, (3) failing to consider the holdings in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 and its progeny, (4) denying a defense request to play a taped statement of a prosecution witness to the jury, and (5) failing to credit appellants with 693 presentence custody days. ² In addition, Duncan contends the trial court erred in failing to authorize $500 to pay an expert to testify on his behalf. We reject all of appellants' claims save those relating to presentence credits, remand the matter to the trial court for calculation of the credits, and affirm the judgments in all other respects.

I. FACTUAL AND PROCEDURAL BACKGROUND.

A. The Prosecution's Case.

Inasmuch as appellants do not argue a lack of substantial evidence to support the verdicts, the statement of facts will be relatively brief. Additional facts will be indicated in the ensuing discussion as necessary.

On February 19, 1992, Justin Zeitsoff ("Zeitsoff") was shot to death at the Duncan home in the San Fernando Valley. Much of the prosecution evidence of what occurred at the time of the murder was introduced through the testimony of Corey Lohr ("Lohr"). ³ Lohr had known Duncan for a year and a half to two years and considered Duncan a friend. Duncan had periodically provided Lohr with a place to stay and was the principal source of the illicit drugs to which Lohr was addicted. In return, Lohr sometimes acted as a "bodyguard" for Duncan, who was an admitted dealer in illegal weapons. Lohr was also acquainted with DeJesus whom he had met approximately three times before Zeitsoff was killed.

For about a month before the killing, Lohr had been living with Duncan. About a week before the murder, they met at a McDonald's restaurant where Duncan showed Lohr $500 and asked if he would kill someone. Duncan said the prospective victim was "some punk" who had "ripped him off." Duncan wanted him "taken care of." Lohr said he would think about it.

The next day, Duncan again showed Lohr the money. He repeated he knew Lohr needed the money and that it was worth $500 to kill someone. Duncan tried to convince Lohr to agree to the murder, but Lohr again indicated he would think about it.

A couple of days later, Duncan again brought up the subject. Lohr again asked who the intended victim was, and Duncan again said it was someone who had ripped him off. Duncan mentioned possible sites for the murder including the desert, a nearby deserted house, and a dark alley.

Three days before the murder, Duncan told Lohr the victim was to be Zeitsoff, who had cheated Duncan in a deal. Lohr had met Zeitsoff once a few weeks earlier at Duncan's house. Zeitsoff had purchased one or two guns from Duncan. At that time, Zeitsoff also showed Duncan and Lohr some stereo equipment he kept in the trunk of his BMW automobile.

Lohr had also seen a particular gun, a 9 mm. Calico, which belonged to Duncan. It was the gun which DeJesus would later use to kill Zeitsoff.

At the same time that Duncan identified the victim, he said also that after killing Zeitsoff, he expected to get a shotgun from Zeitsoff's trunk, at least $200 in cash, jewelry and the stereo equipment. Lohr did not take Duncan too seriously and suggested that, instead of killing Zeitsoff, Duncan should simply stop selling him guns. Duncan responded simply that Zeitsoff was a "punk."

Over the next couple of days there were more discussions about the proposed murder. Duncan wanted Lohr to either shoot Zeitsoff or slit his throat with a knife. Duncan mentioned committing the crime in his backyard or doing it in the desert. He suggested having Zeitsoff meet them in one of these places on the pretext of obtaining a gun. Duncan once again reminded Lohr that $500 was a large sum which Lohr needed.

Lohr continued to try to talk Duncan out of the murder. Lohr suggested that Duncan should just "rip off" Zeitsoff instead of killing him. Duncan continued to respond that Zeitsoff was a "punk" whom he wanted dead.

The day before the murder, Lohr said he could not kill Zeitsoff. Duncan responded that if he had to do it himself, Lohr would get only $250 for helping get rid of the body. On the day of the murder, Lohr repeated he would not kill Zeitsoff. Duncan again urged him to do so and kept waving the money at him. When Lohr indicated he did not like guns, Duncan again suggested using a knife.

During that afternoon, DeJesus arrived at Duncan's house and asked if Duncan had any jobs DeJesus could do. Duncan smiled at Lohr and said he would ask DeJesus to kill Zeitsoff. Duncan and DeJesus went into the backyard for a few minutes, and when they returned, DeJesus told the person who had driven him to the house he would not be leaving.

At that point, Duncan described how the murder would be carried out. He said they would lure Zeitsoff to the house with the promise there were guns he could take with him and pay for later. When Zeitsoff arrived, Duncan would have him stand between the kitchen and living room and would then give DeJesus a signal to start shooting. Duncan told Lohr that DeJesus would be paid $500.

Subsequently, Duncan spoke to Zeitsoff on the telephone. After hanging up, Duncan said Zeitsoff would arrive between 9:00-9:30 p.m. to pick up the guns. Lohr said he did not want to be in the room when the murder occurred. Duncan wanted Lohr to be present, but Lohr said he would go into the bathroom.

The three then went out to obtain some heroin. However, because Duncan said that it was better they not be "high" during what was going to happen, they did not use it. Instead, they sat and watched television.

At about 9:30 p.m., there was a knock at the door. Lohr went into the bathroom. About a minute later, he heard a gunshot. A few seconds later, he heard another gunshot. Then he heard approximately four more shots.

Duncan came to the bathroom door and told Lohr to go stuff a rag in Zeitsoff's mouth because he was moaning. Lohr found Zeitsoff slouched against a wall in the backyard. Lohr only came within fifteen to twenty feet of Zeitsoff and then turned back, went into the house, and started crying. He had not seen a dead body before.

Duncan and DeJesus later told Lohr what had happened. In the kitchen, DeJesus shot Zeitsoff once, and he fell. Duncan and DeJesus thought he was dead. Zeitsoff then, as Duncan and DeJesus termed it, "did a Superman," i.e., rose to his feet and began running. He tried to climb the wall in the backyard, but Duncan pulled him off, and, when Zeitsoff fell to the ground, DeJesus shot him at least two more times.

After the murder, Duncan asked Lohr to go with him to Duncan's van to get some gloves. By this time, Duncan had already dragged the body a short distance in the yard. On the way to get the gloves, Duncan told Lohr to pull himself together, and that he (Duncan) could not move the body himself because his back hurt. DeJesus had refused to participate in moving the body.

On the way to the van, they encountered Duncan's neighbor who asked what the noise was about. Duncan said that a friend had picked up a gun which had "gone off" in his hands, but that everything was fine at that point.

After obtaining the gloves, Duncan and Lohr went back to the house, and Duncan began going through Zeitsoff's pockets. He took the jewelry and Zeitsoff's belt. Either Duncan or DeJesus took Zeitsoff's shoes. The next day, Duncan was wearing the belt. He asked Lohr if he liked it and said it was "really cool," and that "it came from a dead guy's body." Duncan also had the shoes the next day and said he would give them to a girl he liked. Lohr called Duncan a "sicko" and said she would not like them if she knew where they came from. Duncan responded that what she did not...