People v. Fregoso, F050895 (Cal. App. 4/28/2008)
| Decision Date | 28 April 2008 |
| Docket Number | F050895 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JORGE FRANCISCO FREGOSO, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Kern County, No. BF111563A, Lee Phillip Felice and Michael G. Bush, Judges.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Jorge Francisco Fregoso was convicted of one count of premeditated murder (Pen. Code, § 187, subd. (a))1 and one count of kidnapping (§ 207, subd. (a)). It was found true that both counts were committed for the benefit of a street gang (§ 186.22, subd (b)(1)); that Fregoso was a principal in the offense and at least one principal personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)); and that the murder was committed in the commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(B)). The trial court sentenced Fregoso to an indeterminate term of life without the possibility of parole and a term of 25 years to life.
On appeal, Fregoso claims: (1) Batson/Wheeler2 error occurred; (2) the trial court erred in allowing the prosecution to reopen its case; (3) the prosecutor committed prejudicial misconduct; (4) the stop and subsequent search of the vehicle was unconstitutional; and (5) cumulative error occurred. We find no prejudicial error and affirm.
Fregoso, Jesus Valenzuela, Stephen Romero, and Julian Garza3 were all involved, in varying degrees, in the murder of Raul Ruiz. All four had Northern gang connections in Delano. Valenzuela, who was also known as "Noisy" or "Tavio," and Romero, also known as "Stevo," were both previously affiliated with the North Side Delano gang. Garza, who was also known as "Sleepy," was a member of the West Side Delano gang. Fregoso, also known as "Lil Casper," was a member of the Varrio Delano Locos gang.
Valenzuela entered a plea to felony false imprisonment with a gang enhancement, and felony accessory to kidnapping, for a maximum term of up to seven years, on the condition that he testify truthfully in the instant trial. Romero pled guilty to two felony counts, with a gang enhancement, for a total term of seven years, on the condition that he testify truthfully in the instant case.
Valenzuela first saw Ruiz on the morning of August 28, 2005, when Ruiz drove by and Valenzuela asked him who he was looking for. Ruiz said he was looking for someone named Adrianna. Valenzuela and Ruiz "hung out" together, and, while in Ruiz's car, Valenzuela smoked marijuana and Ruiz smoked methamphetamine until Ruiz, a Southern gang member, discovered that Valenzuela was a former Northern gang member. Both men then got out of the car, and Ruiz hit Valenzuela with a chain attached to his keys.
Valenzuela ran into the backyard of Vincent or "Vinnie" Martinez's house on Quincy Street, caught hold of Ruiz's chain, and used the chain to pull Ruiz into the yard. When Martinez joined them, Ruiz stopped fighting and obeyed Valenzuela's demand that he sit down. Fifteen to 20 minutes later, Valenzuela asked Martinez if he could leave Ruiz where he was, and Valenzuela left.
At approximately 11:30 a.m. on August 28, 2005, police officer Rommel Bautista responded to a report of an assault with a weapon, a chain. On 13th Avenue, just north of Quincy Street, Bautista found a chain and some keys in the middle of the road. On Quincy Street, near Martinez's house, Bautista found a sleeveless white undershirt with bloodstains on it. In Martinez's backyard, Bautista saw a weight bench on top of some plywood on the ground.
Sometime that evening, Romero picked up Fregoso and took him to Martinez's house. Romero thought he was going to meet Valenzuela at the house to settle a dispute between the two of them, but Fregoso ordered Romero to park his car in reverse in the driveway.
At approximately 10:00 p.m., Valenzuela returned to Martinez's house and found Ruiz in a six-foot-deep pit in the backyard. Valenzuela saw Garza, who had arrived at some point, pull Ruiz out of the pit, hit him, and tie him up. Fregoso stood nearby.
Romero saw Valenzuela in an alley near the house. Fregoso said something about "having a little scrap pinned up in a hole," but Romero was more concerned about resolving his dispute with Valenzuela. Valenzuela then spoke to Romero in a friendly manner and asked for a ride home. Realizing that there was no dispute between the two of them, he agreed.
Romero got out of the car, looked between the cracks of the fence, and saw seven to nine people in the yard. He saw Garza take a person out of a pit and drop him on the ground. The man's arms and legs were tied behind his back, and he had a red shirt over his head. Fregoso and Garza kicked and beat the man all over his body and called him a "scrap," a derogatory term for a Southerner. The two told the man to say, "Fuck the South Side," and "It's all about the North," but the victim just moaned and mumbled a bit.
Either Garza or Fregoso took Ruiz to Romero's car. Garza ordered Romero to open the trunk and, when Romero was reluctant, Garza pointed a gun at his back and again told him to open the trunk. Ruiz was put into the trunk; after Fregoso got into the car, someone brought him a shovel and a pick.
Valenzuela asked Fregoso what he was going to do with Ruiz, and Fregoso said they were going to drop him off. Valenzuela saw a gun and "gardening tools" in the car.
Romero always kept a .22-caliber pistol "inside" the stereo of his car for protection. He thought about using it to get away from Fregoso and Garza, but decided it was too risky.
Fregoso told Romero to drive to a place on County Line Road. Garza suggested they leave the victim there, but Fregoso said they had to kill him to prevent him from "`tell[ing] the cops where Vinny lives.'"
Once they got to County Line Road, Fregoso directed Romero to a cornfield. There, Fregoso dragged Ruiz into the field. Garza and Valenzuela followed.
Romero stayed in the car and heard a gunshot, followed by screaming. Fregoso came out of the field. Romero heard a second gunshot, and the screaming stopped. Garza and Valenzuela then came out of the field. Garza handed the gun to Valenzuela and told him to go back and shoot Ruiz, but Valenzuela refused and handed the gun back to Garza.
According to Valenzuela, Fregoso shot the gun into the air and then shot Ruiz, who "just laid there." Fregoso handed the gun to Garza who shot Ruiz. When they returned from the cornfield, Garza gave the gun to Valenzuela, but he handed it back.
In the car Garza looked at Valenzuela, pointed the gun at him, and said, "`Well, I know you ain't gonna say nothing.'" Valenzuela promised not to, and Garza said, "`Cause if you do, you know what's going to happen, right?'" When Garza yelled at Valenzuela for not shooting Ruiz, Fregoso said, " "
According to Romero, Garza said he shot Ruiz in the neck after Fregoso shot him. Fregoso was happy, bragging, and stated "`we earned our stripes,'" which meant either killing or beating a Southern gang member.
At approximately 1:10 a.m. on August 29, 2005, police officers Chris Adkins and Jesus Navarrete observed Romero's car at an intersection and thought it might be stolen or that the driver might be under the influence. Adkins turned on his overhead lights just as the vehicle pulled into a driveway on Oxford. Romero, in the driver's seat, Fregoso, in the front passenger seat, and Valenzuela, in the right rear passenger seat, got out of the car and fled. Adkins did not see anyone get out of the left rear seat.
Officer Adkins chased Romero but did not catch him. Adkins returned to his patrol car and noticed that all four doors of the suspect car were now open. Officer Navarrete chased and apprehended Fregoso. During the short chase, Navarrete lost sight of Fregoso for only a second or two.
A shovel, a pickax, a red tarp, and gloves were found in the back seat of the vehicle, as was a knife wedged behind the back of the rear seat. A .22-caliber pistol was found beneath a compartment in the center of the dash. A shotgun, which contained one spent casing, was found partially underneath the passenger seat along with a box of shotgun shells.
Romero decided, after jumping some fences and staying in a yard for awhile, to turn himself in because he knew the car would be traced back to him. He went to a convenience store and asked an employee to call the police.
Officers Robert Geivet and Madrigal contacted Romero at the store and determined that he was the driver of the vehicle. They transported him to a hospital for medical clearance. At the hospital, Romero waived his Miranda4 rights and told Officer Navarrete that he was forced at gunpoint to drive Fregoso, the victim, and another unnamed person out to a cornfield where Fregoso and the other person shot and killed the victim. According to Romero, Fregoso and another person took the victim, who had his hands tied, and put him in the trunk of Romero's car. When Romero expressed concern, the other person pointed a gun at him and ordered him to drive to a particular location. Once there, Fregoso and the other person decided he should drive to a cornfield, where they eventually shot the victim.
At approximately 4:15 a.m. on August 29, 2005, Romero led Officers Adkins, Geivet, Madrigal, and Navarrete to the cornfield where Ruiz was found, still tied, with a gunshot wound to the shoulder. The blood on the ground was still wet, but Ruiz's body was cold and he had no pulse.
Criminalist Petra Imhof...
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