People v. Gonzales

• Decision Date: 18 February 1970
• Docket Number: Cr. 545
• Citation: 84 Cal.Rptr. 863,4 Cal.App.3d 593
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Zaragoza GONZALES and Moiserjio Perez Trevino, Defendants and Appellants.

Page 863

84 Cal.Rptr. 863

4 Cal.App.3d 593

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Zaragoza GONZALES and Moiserjio Perez Trevino, Defendants and Appellants.

Cr. 545.

Court of Appeal, Fifth District, California.

Feb. 18, 1970.

Rehearing Denied March 18, 1970.

Hearing Denied April 15, 1970.

[4 Cal.App.3d 597] Robert G. Carter, Fresno, (under appointment by the Court of Appeal) for Jose Zaragoza Gonzales.

Leonard C. Hoar, Jr., Fresno, (under appointment by the Court of Appeal) for Moiserjio Perez Trevino.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Jack R. Winkler, Deputy Atty. Gen., Sacramento, for respondent.

OPINION

COAKLEY, Associate Justice.

A jury found appellants guilty of murder, second degree. Nunez, a third defendant, was found guilty of the same offense, but his motion for a new trial was granted. The motions of the appellants for new trials were denied.

On October 1, 1967, the three defendants drove to Kearney Park, Fresno, where a Mexican festival was in progress. Defendant Trevino got out of the car, and defendants Gonzales and Nunez proceeded to a parking area. As Trevino got out of the car, Pitas Gonzales and his brother, Gabby, appeared and demanded a ride to Chinatown. Trevino refused, and, according to his testimony, Pitas and Gabby beat him up. Jose Gonzales and Nunez were walking toward the festival area, after parking the car, when they encountered Pitas and Gabby. The four men were talking when Trevino approached them and told Gonzales and Nunez that they should have nothing to do with Pitas and Gabby because they had just beat him up. Pitas Gonzales and the appellant, Jose Gonzales, were not related though they knew each other. Eyewitnesses testified to observing the defendants beckoning Pitas toward them, then standing momentarily in close proximity to him, then following close behind him as he continued walking. The raised voices of the men were heard in argument and cursing, accompanied by a waving of arms in a threatening manner. One of the defendants was observed to have his hand in his pocket. Suddenly Pitas was stabbed in the chest, once. As he walked away slowly, the three defendants followed him a short distance during which the two who had not stabbed Pitas pulled knives from their pockets, held them in their hands briefly, and then returned them to their pockets. As they followed the dying Pitas, one of the defendants was heard to say, 'Let me finish him,' to which a second defendant said, in essence, leave him alone, he's been stabbed already. Pitas walked to a nearby tree, slumped to the ground, and died within 15 minutes. Two to five minutes elapsed between the time the five men were first heard and observed in argument, and the time that Pitas walked away mortally wounded. When Pitas slumped to the ground, the defendants walked to their car, entered it, and drove away. They did not offer to aid Pitas. They drove out of the park but returned shortly. They were identified by bystanders and taken into custody by special officers, Banuelous and Cardova, who were on patrol duty in the park. Banuelous had seen Pitas slump to the ground, but he had not witnessed the events prior thereto.

After the defendants were taken into custody, Banuelous directed them to walk to where Pitas was lying on the ground. As they walked each rid himself of a knife, Trevino by dropping his to the ground, Jose Gonzales by throwing his under a car, and Nunez by tossing his knife to a bystander. The three knives, one a kitchen paring knife, another a pocket knife, and the third a grape knife, were quickly retrieved by the special officers. A laboratory test disclosed blood of the same type as Pitas' on the paring knife. Red cotton fibers were also found on the paring knife. Pitas was wearing a red shirt when stabbed. When taken into custody, the left side of Trevino's trousers was spotted with blood, which matched Pitas' blood type. Banuelous testified that it was Trevino who dropped the paring knife to the ground. Trevino denied ever seeing the paring knife and stated that Gonzales must have placed it between them on the car seat as they drove away, thus accounting for the blood on Trevino's trousers leg.

The prosecution's witnesses, Jose and Tomasa Torres, were about 35 feet from the men when their attention was attracted to them by their loud, angry voices. They testified that Jose Gonzales stabbed Pitas with the paring knife, and that it was Jose Gonzales who said, 'Let me finish him,' to which Nunez replied, 'Leave him alone now, you have already stabbed him.'

At the trial, Jose Gonzales and Nunez named Trevino as the killer, and Trevino named Jose Gonzales. None of the testimony pointed to Nunez as the actual killer. Testimony was offered by all three defendants, by their respective cellmates, and by others, which if believed by the jury and weighed with other independent evidence, was sufficient to sustain a finding against either Jose Gonzales or Trevino as the one who stabbed Pitas. Patently, some of the witnesses, including at least one or more of the defendants, lied.

Equally patent is the fact that one of the three defendants killed Pitas. The ultimate question is not which of the three defendants did the stabbing, but whether the appellants participated in the crime either as the killer or as an aider and abettor of the killer. We now consider that question.

1. Was the evidence sufficient to find both Gonzales and Trevino guilty of second degree murder either as the killer or as an aider and abettor? Yes.

In support of his position that the evidence is insufficient to hold him under either theory, each appellant argues in essence that: (1) Admittedly, the evidence is sufficient to establish that one of the three defendants killed Pitas, but (2) it fails to establish, beyond a reasonable doubt, that either appellant was the actual killer; (3) being unable to determine which of the three defendants killed Pitas, the jury reached a compromise verdict and found all guilty of murder on the thoery that one did the killing and the other two aided and abetted; (4) the evidence is ensufficient to convict either appellant of aiding and abetting; (5) therefore, it not having been proved beyond a reasonable doubt that either appellant was guilty of the actual killing or of aiding and abetting, the judgments must be reversed.

A similar argument was advanced in People v. Durham, 70 A.C. 179, 74 Cal.Rptr. 262, 449 P.2d 198, and rejected by the court in these words:

'Thus would defendant divide and conquer. The difficulty is that the prosecution's theory of the case cannot be split into such fragments.' (p. 188, 74 Cal.Rptr. p. 267, 449 P.2d p. 203)

Nor can the prosecution's theory in this case be split into the fragments urged by appellants.

The prosecution charged the three defendants with murder. It proved beyond a reasonable doubt that one of the three killed Pitas. That is all that it was required to do to lay the foundation for proof of aiding and abetting on the part of all defendants similarly charged with the murder.

Penal Code section 31 provides that:

'All persons concerned in the commission of a crime, * * * whether they directly commit the act constituting the offense, or aid and abet in its commission, * * * are principals in any crime so committed.'

The rule is summarized in 1 Witkin, California Crimes, section 45, pages 47--48:

'To be liable as an abetter the defendant must have instigated or advised the commission of the offense or must have been present for the purpose of assisting.

(People v. Villa (1957) 156 C.A.2d 128, 133 (318 P.2d 828). * * *

'It is not necessary, however, to go so far as to prove participation in the planning of the crime; although not a co-conspirator, one may be a principal by reason of some affirmative action at the time of its commission. The test is 'whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.' (People v. Villa, supra, 156 C.A.2d 134 (318 P.2d 828).)'

In People v. Moore, 120 Cal.App.2d 303, 260 P.2d 1011, the three defendants followed two men up a stair case. One defendant had a knife in his hand. One took $7 from the victim. During the robbery, the appellant, Moore, stood four or five feet from the other defendants. He neither did nor said anything during the robbery, and he fled with the other two defendants. The testimony was in conflict as to which of the defendants had possession of the knife and money when apprehended. The officers testified that both the money and knife were in Moore's possession, while the victim testified that they were recovered from a different defendant. The court affirmed Moore's conviction, holding that he aided and abetted in the robbery, stating at page 306, 260 P.2d at page 1013:

'Appellant cites no authorities in support of his contention that because Moore said nothing and did nothing during the progress of the robbery that he was not a participant and did not aid or abet the robbery. Appellant was not a mere bystander or onlooker. He may have committed no overt act during the robbery but none was required. His presence could have given encouragement to his companions and acted as a deterrent to any continued resistance on the part of Lopez. He was in the position of a lookout and though he gave no warning none was required. He was in the company of the other defendants before the crime was committed, remained with them during the robbery, fled with them from the hotel, and when arrested in company with the others had the knife and stolen bills in his possession. That is sufficient to make him a participant in the crime. 'The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the...