People v. Escobar

• Decision Date: 19 August 1996
• Docket Number: No. B079910,B079910
• Citation: 55 Cal.Rptr.2d 883,48 Cal.App.4th 999
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 6204, 96 Daily Journal D.A.R. 10,080 The PEOPLE, Plaintiff and Respondent, v. Carlos Herminio ESCOBAR et al., Defendants and Appellants.

Page 883

55 Cal.Rptr.2d 883

48 Cal.App.4th 999, 96 Cal. Daily Op. Serv. 6204,

96 Daily Journal D.A.R. 10,080

The PEOPLE, Plaintiff and Respondent, v. Carlos Herminio ESCOBAR et al., Defendants and Appellants.

No. B079910.

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

Aug. 19, 1996.

Rehearing Denied Sept. 11, 1996.

Review Denied Nov. 20, 1996.

Wesley A. Van Winkle, Berkeley, and Robert Derham, San Francisco, under appointment by the Court of Appeal, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.

FRED WOODS, Associate Justice.

I INTRODUCTION

An information charged appellant, Carlos Herminio Escobar ("Escobar") and appellant, Milton Estuardo Medina ("Medina") with the murder of Javier Ernesto Luna ("Luna"), in violation of Penal Code section 187, subdivision (a), and further alleged that the offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(1). In addition, the information alleged that at the time of the offense, Escobar and Medina had been engaged in the crime of kidnapping On the People's motion, the information was amended to strike the special circumstance allegation regarding the kidnapping under Penal Code section 190.2.

within the meaning of Penal Code section 190.2, subdivision (a)(17).

Escobar and Medina appeal from the judgments entered following a jury trial that resulted in their conviction of first degree murder (Pen.Code, § 187). Both appellants were sentenced to prison for 25 years to life.

We modify the judgments to reflect convictions of second degree murder; urge the Legislature to repeal Penal Code section 1157 and to enact a new statute less rigid than present Penal Code section 1157; affirm the judgments as modified; and remand for a sentencing hearing on the issue of calculation of precommitment credits.

II

CONTENTIONS

Escobar.

Escobar contends as follows: "1. The jury failed to designate the degree of the offense in its verdict, and the judgment and sentence must therefore be modified to reflect a verdict of second-degree murder. 2. The trial court erred in refusing to give an instruction requested by the defense on the felony-murder merger doctrine, and reversal is compelled. 3. The jury instruction on flight after the offense was improper, and reversal is required. 4. Appellant respectfully joins in all contentions raised by codefendant, Medina, and further asserts the existence of cumulative error."

Medina.

Medina contends as follows: "1. The court erred in failing to instruct sua sponte that felony-murder did not apply if the sole purpose of the kidnapping was to assault Javier Luna. 2. The evidence is insufficient to support a conviction for kidnapping felony-murder even if the jury had been properly instructed on merger. 3. The court erred in failing to instruct sua sponte on lesser included offenses where the evidence would have supported convictions for either second degree murder or manslaughter. 4. The court erred in failing to instruct the jury that an aider and abettor's liability for felony-murder depends upon a finding that the killing was the natural and probable consequence of the felony aided and abetted. 5. The trial court's error in admitting the irrelevant prior bad acts without examining the evidence with extreme caution requires reversal." ¹

Respondent.

Respondent contends as follows: "1. Since kidnapping is independent of homicide the trial judge properly declined to give the requested instruction; even if the kidnapping was included in fact in the homicide, kidnapping is an independent felonious purpose.... 2. There was sufficient evidence to support appellants' convictions. 3. The trial judge properly omitted any instructions on lesser included offenses because the evidence only supported felony murder. 4. The jury was properly instructed to find appellants guilty of felony murder for victims killed during the kidnapping if they either directly committed the kidnapping or aided and abetted the kidnapping; there was no sua sponte duty to instruct and any alleged error was harmless.... 5. Appellants have waived any claim of improper character evidence by a failure to object; evidence that appellant Medina carried a gun was admissible to show appellant Escobar had acted out of fear; any alleged error was harmless.... 6. Penal Code section 1157 does not apply since appellants were convicted under a degree fixing statute; Penal Code section 189 applies over section 1157 because it is the more specific statute; the spirit of Penal Code section 1157 has been met.... 7. Evidence that appellants left the restaurant after forcing Mr. Luna into the car was sufficient to support an instruction on flight; any alleged error was harmless.... 8. Even if the alleged errors occurred at trial, they were harmless....

.... 9. Appellants' presentence custody credit was incorrectly calculated."

III

FACTS

Prosecution.

Miguel Marquez was close friends with Luna. Luna worked doing cleaning at a laundry on Santa Monica Boulevard. Next to the laundry, there was a restaurant called El Nuevo San Salvador. Luna used to go to the restaurant on weekends and sing.

On July 10, 1992, Mr. Marquez and Luna went to the restaurant at about 8 p.m. Mr. Marquez parked his car in the lot next door. Luna had nothing to drink. Escobar and Medina were also in the restaurant.

Marquez had seen Escobar and Medina at the restaurant four or five times before. He had never seen Luna with appellants before, and they were not friends.

Appellants were "chatting and drinking beers." They were with Romero Ramos. Brenda Mirroquin was working as a waitress at the restaurant and served Medina and his friends beers. Medina appeared drunk. After 10 p.m., the three men left the restaurant.

Antonio Ochoa, Luna's roommate, was in the parking lot. Ochoa saw Medina come out of the restaurant with the two other men; they went to a blue Mitsubishi jeep. Medina then went back to the restaurant.

Shortly after leaving, Medina came back into the restaurant by himself. Medina asked Ms. Mirroquin if she had seen Luna. Medina said he thought Luna had stolen his radio or speakers. Medina appeared angry.

Medina approached Luna, grabbed his arm, and said he wanted to talk to him. Medina seemed upset and a bit drunk. Luna got up, but Medina did not let go of Luna's arm. Medina also had his arm around Luna. It was unusual for Medina to have his arm around Luna because Luna did not like people to touch him. They went out of the restaurant to the parking lot. Medina did not release his grip. Marquez followed them outside because he thought it was strange.

Marquez did not go into the parking lot and lost sight of them. Ochoa saw Medina and Luna come out of the restaurant and into the parking lot; Medina held Luna by the arm.

Marquez heard a woman screaming, "They're taking Javier away, they're taking Javier." So, Marquez went into the parking lot.

Medina, Escobar, Luna and Ramos were there. Escobar was pushing Luna into the rear passenger side of the blue jeep. Luna was trying to get out of the car and to get away. Escobar said, "Get in because we're going to kill you." Ramos was inside the car pulling Luna by the arm. Medina was behind the wheel, and the car was running.

Ochoa ran to get a security guard; he told Manuel Solis, the restaurant guard, that they were kidnapping Luna. Marquez yelled at appellants to let Luna go.

Eventually, Luna was in the car with appellant Escobar and Ramos on either side of him. The men pushed Luna's head downwards. Luna was struggling with the others in the car. The blue jeep drove out of the lot at a high rate of speed. One window on the driver's side of the car was broken.

Marquez and Solis each got into their cars and followed them. In the back of the jeep, Escobar and Ramos kept pushing Luna down. At Normandie and Fountain, Marquez lost track of the blue jeep. Solis lost track of them at Vermont and Fountain. Marquez and Solis both got the license plate number of the blue jeep and gave it to police officers.

Luna's dead body was found in Brand Park in Glendale. There was blood around the nose and mouth area, and there appeared to be injuries to the mouth. Blood also appeared to have drained down the neck onto the shirt collar. There were strangulation marks around the neck. Luna's body had bruises behind the ear and on the side of the head below the scalp. There was bruising to his lips and nose.

Luna died as a result of strangulation. Injuries on Luna's face were consistent with being beaten or falling on a hard surface but Los Angeles Police Detective, Larry Cobb received the license plate number of the blue jeep. Medina was one registered owner of the vehicle. Later, the vehicle was seized. There were blood stains in the back seat of the vehicle. There were blood stains on the window ledge on the front passenger door, the front passenger seat, and the front passenger seat headrest.

were not consistent with falling on a grassy surface.

During a search of Escobar's residence, Detective Cobb found a pair of pants with a large blood stain and a pair of white tennis shoes that also appeared to have blood stains on them. The pants and shoes were Escobar's, and they were not stained when he wore them to the restaurant.

The blood stains in the jeep and on Escobar's pants could have come from Luna but could not have come from Escobar. In Los Angeles County, 15 people out of 10,000 would have the same genetic markers found in the stains on the car floor and the pants and on Luna. The blood on Medina's gray and white striped shirt that he wore the night of the murder could have been Luna's, but was not Escobar's.

When the jeep was seized, the weather stripping...