People v. Fuentes, 22379

• Decision Date: 23 December 1985
• Docket Number: No. 22379,22379
• Citation: 40 Cal.3d 629,710 P.2d 240,221 Cal.Rptr. 440
• Court: California Supreme Court
• Parties: , 710 P.2d 240 The PEOPLE, Plaintiff and Respondent, v. Jose Leon FUENTES, Defendant and Appellant. Crim.

Page 440

221 Cal.Rptr. 440

40 Cal.3d 629, 710 P.2d 240

The PEOPLE, Plaintiff and Respondent, v. Jose Leon FUENTES, Defendant and Appellant.

Crim. No. 22379.

Supreme Court of California In Bank.

Dec. 23, 1985.

David W. Steuber, Los Angeles, under appointment by the Supreme Court, Paul W. Cane, Jr., Grace A. Carter, John A. O'Malley, Paul, Hastings, Janofsky & Walker, Quin Denvir, State Public Defender, Michael G. Millman and Donald L.A. Kerson, Deputy State Public Defenders, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow, Carol Slater Frederick, and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This is an automatic appeal from a judgment imposing a penalty of death under the 1978 death penalty law. (Pen.Code, § 190.1 et seq.; see Pen.Code, § 1239, subd. (b).) ¹

A jury convicted appellant of first degree murder ( §§ 187, 189), attempted robbery ( §§ 664, 211), and automobile theft (Veh.Code, § 10851). It found true the special circumstance that the murder was committed during the attempted commission of a robbery ( §§ 190.2, subd. (a)(17)(i), 6 64/211) and the allegation that appellant personally used a firearm in the commission of the attempted robbery and the murder. ( § 12022.5.) Following a penalty phase hearing at which both sides presented evidence, the jury fixed the penalty at death.

Appellant raises three claims of error regarding the guilt and special circumstance phase of his trial. He contends the trial court's refusal to allow him to ask certain questions at voir dire violated the guidelines set out by this court in People v. Williams (1981) 29 Cal.3d 392, 174 Cal.Rptr. 317, 628 P.2d 869. He further argues that the special circumstance finding must be set aside under Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 and People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826. ² The first argument, even if meritorious, would require reversal only of the special circumstance finding. That finding must be set aside in any event due to Carlos error, as the Garcia exceptions to the rule of per se reversal are inapplicable here. Absent a valid special circumstance finding, the judgment of death must be reversed.

I. Guilt and Special Circumstance Phase Evidence

On the afternoon of December 1, 1980, two armed men, appellant Jose Leon Fuentes and an accomplice, attempted to rob a Brinks guard, Paul Martinez, as he left the cashier's office of a department store carrying approximately $85,000 in a Brinks bag.

After picking up two days' receipts from the cashier's office, Martinez came through an inner doorway which separated the cashier's office area from the main shopping floor, and headed toward the store's outside exit. The two men approached him. Gunshots were fired, and both appellant and Martinez fell wounded to the floor. Martinez died of gunshot wounds to the chest. Appellant was arrested at the scene. The accomplice escaped and was never apprehended.

Martinez's partner, Lucky Springer, was waiting outside in an armored truck. Martinez carried a pocket transmitter by which he could communicate with Springer. The transmitter was on, and Springer could hear Martinez talk with the cashier as he picked up the receipts. After hearing Martinez say goodbye to the cashier, Springer heard the background noise of people talking and children's voices. Next, he heard nine or ten gunshots. At trial, he estimated that the shots were fired within three or four seconds after Martinez left the cashier.

Thirteen other witnesses--including eight department store customers and five employees--testified at the trial. Four customers and two employees saw some or all of the shooting. The remaining witnesses heard the sequence of gunshots, or saw some movements of appellant and an unidentified accomplice before and after the shooting. According to all witnesses, the entire incident lasted only a few seconds. The major discrepancy among the witnesses' accounts was whether appellant or his accomplice had fired the fatal shots.

Linda V. was three or four feet from the commotion and had an uninterrupted view of it. Thus, her testimony provided the clearest account of the shooting and was the strongest evidence that appellant had fired. At the time of the shooting, Linda was in the customer service area exchanging a purchase. The customer service office is in the same area as the cashier, off the main shopping floor. Linda was accompanied by several young children. As Martinez emerged from the cashier's office carrying the Brinks bag on his left arm, the children ran up to him and asked what he had in it. Linda called them back, and Martinez proceeded through the doorway from the customer service and cashier's area out to the shopping floor.

When she first entered the customer service/cashier area, Linda had seen the accomplice, a black man in light clothing, just outside the doorway. The accomplice would have been on Martinez's right as Martinez exited. As Linda watched Martinez go through the doorway, she saw appellant approach Martinez from the left and appear to embrace him. She also saw the accomplice approach Martinez. According to Linda, appellant attempted to pull the Brinks bag out of Martinez's hands. Shots rang out and Martinez fell backwards. Appellant fell a moment later. Linda caught a quick glimpse of the accomplice and called to her companions, who were outside the doorway in the shopping area, to run for cover. As she yelled, Linda pulled the children out of the way.

Linda's testimony was corroborated by two other witnesses, Katie H., a ten-year-old girl, and Lisa W., a salesperson. Each testified that appellant shot Martinez. However, their identifications of appellant as the triggerman were less convincing than Linda's. Katie testified that she recognized appellant as the gunman because she had seen his picture in the newspaper. Lisa admitted that she had dropped to the floor behind a counter when she heard the shots, and was therefore unable to give any description of the gunman to the police at the scene.

Two witnesses believed that the accomplice, rather than appellant, shot Martinez. Linda V.'s sister, Martha F., and a friend, Laurie B., were standing at a shoe display table near the customer service doorway when the shots rang out. They saw Linda at the doorway yelling at them to get on the floor. Because they were concerned for their children, who were with Linda, they continued to look towards the customer service area.

Martha saw Martinez and appellant fall to the floor. She watched the accomplice bend over them and apparently fire a few shots. The accomplice held a gun, and Martha could see his hands recoil as she heard shots. However, Martha did not witness the entire incident, since at some point during the shooting she and Laurie ducked behind a display table.

Laurie also testified that she saw the accomplice bend over as his hands recoiled. She did not see Martinez or appellant until the shooting was over. Presumably, both Martinez and appellant were already on the floor when Laurie looked in their direction.

The testimony of Todd B., a salesman, also supported the theory that the accomplice rather than appellant was the actual assailant. Todd looked in the direction of the customer service area when he heard the shots. He saw Martinez fall and saw the accomplice near him. The accomplice appeared to be shooting, and Todd could hear gunshots during this time. Todd saw appellant fall to the floor a few seconds after Martinez. However, Todd, like Martha and Laurie, ducked as soon as he heard the shots, so he did not have an uninterrupted view of the entire incident.

In all, seven witnesses testified to having seen the accomplice in the store near the time of the shooting. Though there were some discrepancies concerning the accomplice's height and headgear, all witnesses gave a fairly consistent description of a black man wearing a white or very light tropical suit. Several of the witnesses saw this man walk out of the store at a rapid pace shortly after the shooting. Katie H. saw him place a gun on the shoe display table as he was leaving. This gun was recovered by police investigators later that day.

The manager of the cashier's office came out of the customer service area immediately after the shooting. He saw appellant and Martinez on the floor. A gun lay on the floor six inches from appellant's hand. The manager kicked the gun away toward Martinez.

Expert testimony established that five shots had been fired from that gun. The sixth cartridge in the gun had been struck but failed to fire. Five shots had also been fired from Martinez's gun. ³ None of the cartridges found in the store had been fired from the gun which Katie saw the accomplice leave on the shoe display table. Ballistics tests indicated that bullets found in Martinez's body had been fired from the gun found near appellant.

Car keys found in appellant's pocket proved to fit a Chrysler Cordoba parked in the department store parking lot. The Cordoba had been stolen fairly recently from a Manhattan Beach automobile dealer.

The defense theory was that the accomplice, rather than appellant, shot Martinez. Appellant argued that he had done nothing more than aid and abet a robbery and had no intent to kill Martinez. This argument was based on the testimony of the prosecution witnesses who believed that they had seen the accomplice fire a gun, and on one defense witness, a store customer who saw the accomplice walk rapidly away from the scene of the shooting. Appellant did not testify.

Penalty Phase Evidence

At the penalty phase, it was stipulated that appellant had suffered five prior robbery convictions, four in 1969 and one in 1975. In each robbery he was personally armed with a pistol. He served two separate prison terms for these convictions.

The defense offered the...