People v. Desantiago
| Decision Date | 30 July 2003 |
| Docket Number | B153447. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR DESANTIAGO et al., Defendants and Appellants. |
Appeal from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA182395. Bob S. Bowers, Jr., Judge.
Reversed and remanded.
Geoffrey R. Pope for Defendant and Appellant Eleazar De Santiago.
Walter R. Urban for Defendant and Appellant Francisco Marin.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General and Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.
Following a jury trial, appellants Francisco Marin and Eleazar Botello DeSantiago were convicted of the September 1997 first degree murder (Pen. Code, § 187(a)) and second degree robbery (Pen. Code, § 211) of Jay Charles Yim; appellant DeSantiago was also convicted of being a felon in possession of a firearm (Pen. Code, § 12021(a).)1 The People's theory was felony-murder, and the jury found the murder was committed while appellants were engaged in the commission of the crime of robbery or attempted robbery (Pen. Code, § 190.2(a)(17).) The case was filed as a death penalty matter, but the prosecution gave notice that the death penalty was no longer being sought about a month after filing. The trial was held in 2001, almost four years after the crimes were committed. Appellants appeal the judgments of conviction.
As to DeSantiago, we shall reverse the personal use findings and count 3 for insufficiency of evidence. As to both defendants we shall reverse their convictions because of the trial court's exclusion of testimony by a proposed defense expert. Upon remand and prior to any new trial in which evidence relating to the scent transfer unit (STU) is used, there must be a Kelly hearing on the STU.
Charlie Yim, the owner of Village Liquor in Carson, was shot to death on September 18, 1997, by the asphalt parking lot of his business. He had deposited checks and then withdrawn $ 24,000 in twenty and one hundred dollar denominations at a bank in Koreatown earlier that day, an almost daily occurrence given the check cashing part of his business. He put the cash into his briefcase. Dr. Won Kim, a friend from church whose office was on the second floor of the bank, had lunch with Yim that day, as Yim did almost every day after going to the bank. Yim was shot in the parking lot of his liquor store, and his briefcase with the money was missing.2 The detectives found two expended shell casings at the crime scene.3 No one saw the actual shooting. The issue at trial was the identity of the assailants.
The assailants, identified as two Hispanic men, fled the scene racing away, "screeching," in a red or burgundy colored car.4 A car matching that description stopped, screeching, at the corner of 215th Place and Martin Street, about a quarter to a half mile from the shooting, and two Hispanic men got out of the car.5
Maria Medina, eating dinner at her nearby home, saw them get out of the car in a hurry and rush to get everything they had, removing their shirts.6 Witnesses saw the driver remove a glove and a light blue shirt, which he threw into the car, and saw the passenger take off a dark T-shirt and perhaps a glove and throw them inside.7 Maria Medina saw the passenger holding a black or dark briefcase, which he got from the back seat of the car. A small gray car driven by an Hispanic man pulled up; both men who had been in the Honda jumped into the back seat, and the gray car drove off. Within minutes after they fled, police arrived at the scene.
Deputy Ponce de Leon found a burgundy, 4-door 1989 Honda Accord with a license plate bent upward only blocks away from the crime scene near the Medina residence.8 Appellant Marin's left thumb print was found on the hood of the burgundy Honda left near the intersection of 215th and Martin, about a quarter to half a mile from the scene of the shooting. Several fingerprints and palm prints on the exterior of the car and one on the interior rear view window were those of DeSantiago.9
Three latex gloves (one in the drivers seat and a pair in the back seat) with powder, some of which was in parts of the car, and a two-way radio in the "on" position, were found in the car. The police found a white T-shirt in the back seat of the vehicle10 and a blue, button-down work-type shirt on the grass adjacent to the stucco wall of a house about 20 to 30 feet from where the Honda was located.11 No DNA tests were done on the shirts.
Detective Scott saw the impression of two buttocks from an individual sitting on the hood. The ignition switch was intact and void of any ignition keys. The passenger and driver's windows were down. The car has since been stored; it was never reported stolen, nor did anyone try to claim it.
Maria Medina, who lived right across the street from where the Honda was found, identified a photograph of appellant Marin as looking like the
PAGE CONTAINED FOOTNOTES
PAGE CONTAINED FOOTNOTES
driver of the burgundy Honda on October 20, 1997.12 DeSantiago was in another of the four 6-packs shown to Ms. Medina, but she did not identify him.13 No one placed Marin at the shooting scene or said they saw him with a gun; no gun was recovered. Following his initial testimony, the liquor store cashier was recalled and testified that he believed he has seen appellant Marin before, but "cannot tell you exactly where." People at the scene of the shooting described the driver as male Hispanic, late teens to early 20's, dark hair or shaved-down hair, wearing from white t-shirts to light blue shirts; no one said he had a mustache.
On September 20, 1997, Detective Scott was notified that prints on the Honda matched Marin and Eleazar Barasas, aka Eleazar Botell aka Eleazar DeSantiago. He obtained photographs of DeSantiago and Marin and found addresses for suspect DeSantiago at 219 North St. Louis, # 2 and 3312 Ganahl Street and addresses for Marin at 641 Cummings and 1947 1/2 Sheridan.
Appellants were arrested on September 28, 1997. Marin was arrested at his grandmother's house, 641 North Cummings; DeSantiago was arrested near the intersection of First and Soto in Boyle Heights. Officers said he was told he was under arrest for murder but was not told who the victim was or the circumstances of the case. DeSantiago was taken to the East Los Angeles Sheriff's station, awaiting the arrest of Marin and a wired surveillance car.
A search warrant executed at De Santiago's home at 3312 Ganahl produced $ 2700 in new one hundred dollar bills in the bedroom. A search of
Marin's mother's house, 1947 1/2 Sheridan, produced latex gloves and other medical supplies.14 Nothing was found at Marin's grandmother's house. Marin was seen at Nancy Corral's apartment, 219 North St. Louis Street, where detectives found documents in Marin's name and documents involving the payment of child support by Marin.15
After Marin and DeSantiago were arrested on September 28, they were placed in a surveillance vehicle that had a hidden recording device. The arresting officer did not tell them the specifics of the subject homicide. The audiotape of their conversation was played for the jury. They discussed where they were arrested, and Marin stated the police said they had his fingerprints. DeSantiago said he was told he was being arrested for murder. Marin was told he was being accused of the De Santiago later said he was also being accused of robbery and murder. Toward the end of the tape, Marin said he would ask to make a phone call and said "I think from here they'11 take us to Carson." DeSantiago questioned Carson, and Marin replied
Evidence of another tape recording was also introduced. After obtaining a court order, Deputy Sheriff David Hebert tape recorded inmate DeSantiago's conversations with relatives who were visiting him in jail on October 4, 1997. In the lengthy conversation, they discussed the searches that had taken place, including money and photographs that had been seized; and DeSantiago mentioned the police had no gun but had his prints in the car. He explained: While he did not think it proved anything, he regretted that if he went to court, he would "have to say that the [red] car was Armando's . . . ." They discussed explanations for possession of the car by DeSantiago and Armando Hernandez. DeSantiago seemed to suggest that they could say someone picked it up to sell it around the sixteenth or the seventeenth, which was the day before the homicide. He hoped he was incarcerated only for a parole violation and not for anything else.16
Finally, dog scent evidence that is at the core of this appeal was introduced.17 On September 19, 1997, Detective Biehn extracted scent from the blue shirt recovered in this case. He used sterile gauze and the contested scent transfer unit. On October 16, 1997, the scent pads taken from the white t-shirt and blue work shirt found in or near the burgundy Honda were given to Trilo and Scarlett, dogs trained to trail scent.
The trainers and their dogs met on St. Louis, between Cesar Chavez and First Street in Boyle Heights. They had been given no...
To continue reading
Request your trial