People v. Federico

• Decision Date: 22 December 1981
• Docket Number: Cr. 14083
• Citation: 179 Cal.Rptr. 315,127 Cal.App.3d 20
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. DeWayne FEDERICO, Defendant and Appellant.

Page 315

179 Cal.Rptr. 315

127 Cal.App.3d 20

The PEOPLE of the State of California, Plaintiff and Respondent, v. DeWayne FEDERICO, Defendant and Appellant.

Cr. 14083.

Court of Appeal, Fourth District, Division 2, California.

Dec. 22, 1981.

Hearing Denied March 25, 1982.

Jim Thomson, San Diego, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Michael D. Wellington and Thomas F. McArdle, Deputy Attys. Gen., for plaintiff and respondent.

Joseph Peter Myers, Riverside, as amicus curiae on behalf of defendant and appellant.

OPINION

KAUFMAN, Associate Justice.

DeWayne Federico (defendant) appeals from a judgment of conviction of first degree murder and robbery and an order denying his motion for new trial. ¹

Defendant and Richard Joseph Ybarra ² were charged in a two-count information with robbing and murdering Gilbert Ray Mejia on May 8, 1979. It was further alleged that defendant and Ybarra were armed with and used a firearm during the commission of the robbery and of the murder (Pen.Code, §§ 12022, subd. (a) and 12022.5). Additionally, it was charged that defendant and Ybarra had the intent to inflict and inflicted great bodily injury upon Mejia in the commission of the robbery (Pen.Code, § 12022.7). It was separately charged that defendant used a dangerous and deadly weapon, a baseball bat, in the commission of the robbery (Pen.Code, § 12022, subd. (b)). Defendant pled not guilty to both counts and denied all special allegations.

Defendant's motion for separate trial was granted and a jury trial ensued. The jury returned a verdict of guilty as to count one, murder in the first degree, and count two, robbery. However, the jury found all the special allegations not true.

Defendant was denied probation and sentenced to prison for the term prescribed by law on the murder conviction and for the upper term of five years on the robbery conviction, the sentence for the robbery to run concurrently with the sentence for murder.

On appeal, defendant does not contend his conviction was not supported by substantial evidence except in connection with his contention that his motion for new trial was erroneously denied. In any event the evidence of defendant's guilt is ample if not overwhelming and we do not feel called upon to set out at length the facts established by the evidence as viewed most favorably to the People. Suffice it to say, the evidence indicated that the victim, Mejia, was first robbed and then killed with his own .25 caliber automatic pistol, for motives having to do with drug trafficking, by defendant, Richard Ybarra, and possibly defendant's cousin Victor Federico at the Riverside home of Rachel Frias, another cousin of defendant, and that the body was then transported in the trunk of a Ford Fairlane owned by Victor Federico to a vacant lot about a mile away where it was ultimately discovered by the police, blindfolded, ³ tied up and partially nude.

An autopsy of the victim's body disclosed four gunshot wounds around the right ear, two of which were the cause of death, and at least five large cranial lacerations that could have been caused by a cylindrical lead pipe or an aluminum baseball bat. The time of death was estimated to be between 5 and 7 a. m. on May 8.

There was considerable evidence incriminating the defendant including the following. There was evidence that the victim and defendant were engaged in drug trafficking. Defendant kept the victim's name and telephone number in an address book and also in his wallet. In defendant's home was his receipt book with the name "Ray" and financial transactions listed. The victim was known as "Ray."

Defendant's father, Preston Federico, lived in the Highland Park area of Los Angeles. He had two telephones. One of his telephone numbers was 213-255-1357. Defendant is also sometimes known as Preston Federico. At the victim's home in Phoenix the police found a notation on some of the victim's papers, the name "Preston" and the telephone number "(213) 255-1357."

In late April or early May the victim had some $8,000 worth of cocaine which had become discolored. He was upset about that and felt he had been cheated by whoever sold it to him. He said he was going to confront defendant's father with the cocaine. Apparently he rode his custom-made motorcycle from Phoenix to the father's house in Los Angeles. He and his motorcycle were seen there on Monday evening May 7.

Defendant, Richard Ybarra and Victor Federico left the defendant's home in Westminster about 4:30 p. m. on May 7 and drove in Victor Federico's Ford to defendant's father's house in Highland Park. They and the victim arrived at the father's house at about the same time, 5 or 6 p. m. The father was unhappy about the visitors and he told the defendant to get those people out of his home. Defendant and the others did not leave, so about 10 or 11 p. m. the father left and spent the night elsewhere. When the father returned home at about 7:30 the next morning defendant, Ybarra and Victor Federico were sleeping on the floor. The father told them to leave, but they did not leave until 5 p. m. at which time they went to the defendant's home taking the victim's motorcycle with them.

Defendant's wife testified that when defendant returned home that evening there were bloodstains on the front of his blue jeans below the knees and that he immediately took off those pants and threw them in the trash. Defendant had worn the same pants the day before and they were then clean, unstained and in fair condition.

Defendant retained possession of the victim's motorcycle and told his cousin Jo Ann Ramirez that he was going to sell it.

About 10 p. m. on Saturday, May 12, Riverside police saw defendant, Ybarra and Victor Federico accompanied by a female come out of a liquor store together. Defendant got on the victim's motorcycle and began to start it. All four were then arrested. Defendant was placed in the far left rear of a patrol car. The next morning the police found the victim's motorcycle registration under the seat of the patrol car where the defendant had been seated. Defendant never explained how he obtained the motorcycle registration or why he hid it in the police car.

At the time of his arrest defendant gave police a phony name, Angelo Carlo Gambino, and a phony address and affected a phony Italian accent.

While defendant was in jail he had a number of conversations with a cellmate, Benjamin Rodriguez, about Mejia's death. At first, the defendant described his arrest and said, "They didn't have nothing on him, that nobody would talk." Later he told Rodriguez the victim was murdered because he was a federal informant. Still later defendant told Rodriguez the victim was murdered because he tried to have defendant arrested. He explained that when defendant, Ybarra and Victor Federico had gone to Arizona some months earlier, the victim had planted cocaine in their car without their knowledge. Defendant said if anyone had anything to do with hitting the victim with a baseball bat, it was he and Ybarra. He also stated the victim was hit in the head with a baseball bat and was shot in the head three times by him. He said he used a .25 automatic. He said the victim was tied, gagged, stripped, put in the trunk of Victor Federico's Ford and dumped.

Defendant's wife testified that defendant took a month long trip beginning in March and ending in April 1979 and that upon his return he told her he had been in Arizona. He then gave her a red and white Mercury automobile and a set of keys to the car which he said he got in Arizona. The car belonged to the victim. After defendant was arrested a key ring was taken from his person. Two keys on that ring operated the victim's Mercury. A second set of keys fitting the Mercury was found at the defendant's home, and his wife testified the set of keys found in the home was the set defendant had given her upon his return from his trip to Arizona.

Defendant testified he did not go to Arizona in March or April, did not tell his wife he had gone there and received only one set of keys when he assertedly obtained the car from Ybarra.

On appeal defendant asserts a number of allegedly prejudicial errors. Preeminent among them are that the trial court erred in permitting Benjamin Rodriguez to testify, in limiting defendant in cross-examining Rodriguez and in denying defendant the opportunity to present other testimony regarding Rodriguez. These contentions are without merit.

Prior to jury selection, the court, at the request of defense counsel and with the approval of the prosecution, conducted a hearing pursuant to Evidence Code section 402 to determine the admissibility of the testimony of Benjamin Rodriguez to the effect that, while he was Rodriguez' jail cellmate, defendant had admitted to Rodriguez committing the crimes. Defendant asserted that the statements were hearsay, that Rodriguez was a police agent and that the probative value of Rodriguez' testimony was outweighed by its prejudicial effect (Evid.Code, § 352). In connection with the undue prejudice argument defendant asserted that Rodriguez had obtained his knowledge of the case from police reports shown him by the defendant, not from admissions by the defendant and that Rodriguez had a substantial motive for lying because he had worked out a plea bargain with the Riverside authorities conditioned upon his testifying in the Federico case.

Outside the presence of the jury the court received evidence on the motion from five witnesses. Defendant filed a memorandum in support of the motion, and argument was heard. Although the court expressly recognized that Rodriguez might have a motive for falsifying, it nevertheless made a preliminary determination that Rodriguez' testimony was credible and ruled that his testimony should be admitted into evidence.

The ruling was eminently sound. The probative value of Rodriguez' testimony if true was enormous....