People v. Frausto
| Decision Date | 17 August 1982 |
| Citation | 185 Cal.Rptr. 314,135 Cal.App.3d 129 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Gary Moreno FRAUSTO and Anthony Bazurto, Defendants and Appellants. Crim. 40265. |
Thomas Kallay, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Bazurto.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.
In an information filed by the District Attorney's Office of Los Angeles County, appellants were originally charged in the superior court with the crimes of assault with intent to commit murder. (Pen.Code, § 217.) Said charge was later amended on motion of the People to assault with a deadly weapon (Pen.Code, § 245, subd. (a)) subsequent to the repeal of Penal Code section 217. In addition, the amended information contained allegations that appellant Frausto with the intent inflicted great bodily injury (Pen.Code, §§ 12022.7 and 1203.075) and used a firearm (Pen.Code, §§ 12022.5 and 1203.06(a)(1)) at the time of the commission Appellants were found guilty as charged in the information by a jury. The allegations concerning great bodily injury and the use of a firearm were found true as to appellant Frausto. Appellant Frausto also admitted the conviction of a prior felony.
of the offense. An allegation that appellant Frausto was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a) was struck. Appellants pleaded not guilty to the amended information. The appellants' motions under Penal Code sections 995 and 1538.5 were denied.
Appellant Bazurto was sentenced to the state prison for the upper term of four years. Appellant Frausto was sentenced to the state prison for the upper term of four years, plus four additional years on the enhancements.
This appeal by both appellants is from the judgments of conviction. Both appellants filed timely notices of appeal.
A. The Trial
On March 27, 1980, Debra Elliott was employed at the U-Tote-Em Market at 13746 Meyer Road in the City of Whittier, County of Los Angeles, as the assistant manager. Ms. Elliott's hours of employment on that particular shift on that date were from 2:30 p. m. to 10:45 p. m. Nelson Martinez, aka Jeffrey Adams, an old friend, had a date with Ms. Elliott on the date in question. Mr. Martinez arrived early at the U-Tote-Em Market at approximately 10 p. m. in order to help Ms. Elliott clean up the store and get things organized so that she could leave her employment shift early.
After Ms. Elliott's replacement clerk had arrived both Ms. Elliott and Mr. Martinez left the U-Tote-Em Market at approximately 10:50 p. m. to purchase some liquor at a liquor store. Within minutes Ms. Elliott and Mr. Martinez returned to the U-Tote-Em Market to enable Ms. Elliott to use the restroom facilities at her store.
Mr. Martinez parked his vehicle (Aspen) in the parking space in front of the trash can in the front of the store. Both Ms. Elliott and Mr. Martinez went into the store. Ms. Elliott used the restroom facilities in the store, came out and talked to the replacement clerk for a few minutes. Ms. Elliott then got back into Mr. Martinez's vehicle. At this point in time, Ms. Elliott accidentally dumped the contents of her purse in the backseat of Mr. Martinez's vehicle.
Shortly before, a tan late model Chevrolet had pulled into the parking lot in the area in front of a public telephone, parking parallel to and in the same direction as Mr. Martinez's vehicle. Four individuals got out of the tan vehicle and approached the public telephone. These four people appeared to be of "Mexican-American" descent, between the ages of 18 and 24. One of these four individuals was making a telephone call. One man, the victim, Guadalupe Mares, remained inside of the tan vehicle in the driver's seat.
Mr. Martinez stood in the parking lot, leaned into the backseat of his vehicle and was picking up the contents of Ms. Elliott's purse when Ms. Elliott, looking over her shoulder, saw appellant Anthony Bazurto's 1964 Chevrolet Impala followed by a black Chevelle enter the parking lot. The Chevrolet Impala was going "really slow," according to the testimony of Ms. Elliott. The Chevelle went around the Chevrolet Impala and went toward the gas pumps at the U-Tote-Em Market. The parking lot was well lit.
As soon as the Chevrolet Impala pulled up to the area of both Mr. Martinez's vehicle and the tan vehicle in which the victim, Mr. Mares, was seated, Ms. Elliott started to turn her head to see what Mr. Martinez was doing with the contents of her purse. Ms. Elliott heard a loud noise like a "firecracker or a shot." Ms. Elliott immediately turned her head back to the right and saw everybody hitting the floor. Mr. Martinez, who had also heard the shot, pushed his way into his vehicle with the upper portion of his body ending up on Ms. Elliott's lap.
Ms. Elliott saw a gun lodged on the windowsill of the Chevrolet Impala. The person who had possession of the gun was sitting in the right front passenger's seat of the Chevrolet Impala. The weapon was a .38 handgun.
The gunman was staring at the tan vehicle and the gun was still lodged in the gunman's hand as the Chevrolet Impala was driving slowly forward toward the back of the vehicle in which Ms. Elliott was seated. Ms. Elliott testified she heard a total of three shots fired. The gun was still being held by the same gunman. The Chevrolet Impala then drove away.
Ms. Elliott got the license number of the Chevrolet Impala--the license number being OOE 298. She wrote the license number down on a piece of paper or a receipt or slip and gave it to a deputy sheriff.
After the Chevrolet Impala had left the parking lot, both Ms. Elliott and Mr. Martinez ran over to the victim's vehicle and saw the victim slumped over in the front seat with blood pouring out of the left side of his chin. With some assistance, Ms. Elliott got the victim, Mares, out of the victim's automobile and managed to stop the bleeding. Testimony by the doctor on duty, Dr. Rodney Schmidt, in the hospital emergency room where the victim, Mr. Mares, was taken, established that Mr. Mares had sustained a solitary gunshot wound to his left chin.
Appellant Anthony Bazurto was the owner and operator of a 1964 Chevrolet Impala, license plate number OOE 298 on March 27, 1980, at the time of the shooting of Guadalupe Mares in the U-Tote-Em parking lot at 13746 Meyer Road in the City of Whittier, County of Los Angeles.
Shortly after the shooting, deputies from the Los Angeles County's Sheriff's Department arrived. Deputy Davis obtained a description of the shooter and of the driver of the Chevrolet Impala from Ms. Elliott and left to look for them. Deputy Davis spotted the Chevrolet Impala at approximately 11:30 p. m. on March 27, 1980. Appellants Gary Moreno Frausto and Anthony Bazurto were arrested without resistance.
Immediately after the arrest, Deputy Duron searched the Chevrolet Impala at the scene of the arrest. Deputy Duron found a handgun case on the front seat without a weapon in it, in fact, he found neither a gun nor any bullets anywhere in the vehicle.
Ms. Elliott and Mr. Martinez were taken by the police to the location where appellants Gary Moreno Frausto and Anthony Bazurto were arrested. Ms. Elliott identified appellant Gary Moreno Frausto as the shooter, and appellant Anthony Bazurto as the driver of the Chevrolet Impala. Mr. Martinez identified appellant Gary Moreno Frausto as the man who had done the shooting.
Over defense objection, the victim, Mr. Mares, was allowed to testify that he knew the U-Tote-Em Market was on the "turf" of the South Side Whittier gang. Mr. Mares claimed a particular neighborhood as his barrio or turf which was known as "El Nohyo Mara." It was located in East Los Angeles.
The occupants of the victim's vehicle when it arrived at the said market were, in addition to Mr. Mares, two females named Debra Padua and Arleen Ann Soto, and two males by the names of Raul Arias and Ricky or Randy Rodriguez. Debra had been picked up in Whittier and the other occupants of Mr. Mares' vehicle had come from East Los Angeles to Whittier in the victim's automobile. The reason for the stop at the U-Tote-Em Market on March 27, 1980, was to allow Debra to use the public telephone to try to get a date for Mr. Mares.
The victim, Mr. Mares, was unable to say who shot him. Mr. Mares remembered driving his automobile into the parking lot of the U-Tote-Em Market. The other occupants of his vehicle had gone to the public telephone. The said market was not located inside the territory that was claimed by El Nohyo Mara. Mr. Mares testified that he knew of his own knowledge that, when he drove into the parking lot, it was perhaps claimed as the turf or territory of another gang--the gang being South Side Whittier.
The victim did not have a gun in his possession when he drove into the said parking lot, nor to his knowledge did any of the other people in his vehicle have a weapon or gun in their possession.
The defense presented evidence that the victim, Guadalupe Mares, was shot by a short, stocky, and medium complexioned man wearing a dark jacket and a beanie. Testifying in support of this were the two females that had accompanied the victim to the U-Tote-Em Market--Debra Padua and Arleen Ann Soto--as well as the appellant Anthony Bazurto.
Appellants' activities prior to the shooting are not in issue. Appellant Anthony Bazurto did, however, admit being in the parking lot of the U-Tote-Em Market on March 27,...
To continue reading
Request your trial
-
People v. Munoz
...the affairs of the organization were in issue; therefore gang membership of defendant was relevant. 4 (See also People v. Frausto, 135 Cal.App.3d 129, 185 Cal.Rptr. 314.) The People have made no showing whatsoever the "club" membership of Munoz tended to prove or disprove any issue in the c......
-
People v. Munoz
...the affairs of the organization were in issue; therefore gang membership of defendant was relevant. 4 (See also People v. Frausto (1982) 135 Cal.App.3d 129, 185 Cal.Rptr. 314.) The People have made no showing whatsoever the "club" membership of Munoz tended to prove or disprove any issue in......
-
People v. Casique, A113636 (Cal. App. 5/29/2009)
...relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. (See, e.g., People v. Frausto (1982) 135 Cal.App.3d 129, 140 [motive].) ` "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds ......
-
People v. Harris
...the state of the evidence. (See People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 509 P.2d 959; People v. Frausto (1982) 135 Cal.App.3d 129, 146-147, 185 Cal.Rptr. 314.) Even if the remark could be characterized as improper, it was harmless. "[A]s we made explicit in Vargas, ... ......
-
Table of cases
...People v. Frank (1925) 71 C.A. 575, 236 P. 189, §9:28.1 People v. Franzen (2012) 210 Cal.App.4th 1193, §9:26.4 People v. Frausto (1982) 135 Cal.App.3d 129, §9:91.2 People v. Free (1982) 131 Cal.App.3d 155, 165, §9:91.3 People v. Freeman (1994) 8 Cal.4th 450, 504, §9:12 People v. Freidt (201......
-
Trial defense of dui in California
...on the issue where he offers reasons beyond the constitutional right for the accused not having testified. See People v. Frausto (1982) 135 Cal.App.3d 129; cf. People v. Stout (1967) 66 Cal.2d 184. Likewise, the door was deemed open where defense counsel told a story about what might have h......