People v. Gonzalez

• Decision Date: 12 June 2006
• Docket Number: No. S072946.,S072946.
• Citation: 135 P.3d 649,38 Cal.4th 932,44 Cal.Rptr.3d 237
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose GONZALEZ, Defendant and Appellant.

44 Cal.Rptr.3d 237

38 Cal.4th 932

135 P.3d 649

The PEOPLE, Plaintiff and Respondent, v. Jose GONZALEZ, Defendant and Appellant.

No. S072946.

Supreme Court of California.

June 12, 2006.

Michael B. McPartland, Palm Desert, under appointment by the Supreme Court; and Carl Gonser, San Rafael, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

[135 P.3d 938]

A jury convicted defendant Jose Gonzalez of the first degree murders of Jose Albert Rodriguez and Hector Ricardo Gonzalez Martinez and of being a felon in possession of a firearm. (Pen.Code, §§ 187, 12021, subd. (a)(1).)¹ It found true the special circumstance of multiple murder and that defendant personally used a firearm in the commission of the murders. (§§ 190.2, subd. (a)(3), 12022.5, subd. (a).) That jury was unable to reach a penalty verdict. After a penalty retrial, a second jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm defendant's convictions and the special circumstance finding but reverse the death sentence.

I. THE FACTS

A. Guilt Phase

1. Prosecution Evidence

During the evening of June 17, 1996, seven men—Jose Gutierrez, Juan Pablo Rocha, brothers Mario, Juan, and Oracio Jimenez, and victims Jose Albert Rodriguez and Hector Ricardo Gonzalez Martinez—were working on a car in the driveway of the Jimenez brothers' house at 835 North Cordova Avenue, in an area of East Los Angeles that the Lopez Maravilla street gang claimed as its home "turf." At some point, a man, identified as defendant, fired two shots from a rifle towards the men, hitting Rodriguez and Martinez. Both Rodriguez and Martinez died of single gunshot wounds to the body. Defendant was a member of a street gang, the Lott Stoners 13, that was a rival to the Lopez Maravilla gang. He had "Lott 13" tattooed on his neck and, at least by the time of trial, also on the back of his head.

[135 P.3d 939]

The prosecution presented two kinds of evidence that defendant was the gunman: (1) eyewitness identifications that were, with one exception, repudiated at trial; and (2) evidence, also repudiated at trial, that defendant told a fellow gang member that he was the shooter.

Juan Rocha identified defendant as the gunman at trial. He had previously selected defendant's photograph from a photographic lineup and then defendant himself from a live lineup.

Oracio Jimenez selected defendant's photograph from a photographic lineup and then identified defendant from a live lineup as the gunman. At the live lineup, he said he was "100 percent sure" of his identification. He did not identify anyone at the preliminary hearing or at trial. At the preliminary hearing, he said that he was "terrified" and therefore would not identify anyone in court. At trial, he said that defendant was not the gunman, but he also said that he did not know what the gunman looked like. He said he had selected defendant's photograph because everyone was saying it was number two (defendant's photograph), and he had identified defendant at the live lineup because defendant had a gang tattoo on the back of his head.

Mario Jimenez selected defendant's photograph from a photographic lineup as "look[ing] the most like the guy with the gun." At trial, he identified no one as the gunman. He said he had lied when he selected defendant's photograph as looking like the gunman, and he had done so only because of what others had told him. He could not remember who these others were. When he selected the photograph, he told the police that he had not spoken to anyone about the photographs.

Jose Gutierrez selected defendant's photograph from a photographic lineup as "look[ing] like the one that had the gun." Later, he identified defendant from a live lineup as the gunman. He wrote that he was "100 percent sure" of this identification. At trial, he said he did not get a good look at the gunman, and he did not identify anyone. He said that he had selected defendant's photograph "based on rumors" from "people in the street," whose identity he could not remember. He said he had identified defendant at the live lineup because defendant had a gang tattoo on the back of his head. He had testified at a pretrial hearing that defendant was not the gunman. Los Angeles County Sheriff's Detective Martin Rodriguez, the investigating officer, testified that after Gutierrez so testified at the pretrial hearing, Gutierrez looked in defendant's direction and winked. Gutierrez denied winking at defendant.

Juan Jimenez never identified anyone as the gunman.

Homero Cardenas, like defendant a member of the Lott Stoners 13 gang, told the police in a taped statement that defendant had told him that he,

[135 P.3d 940]

defendant, had committed the murders. On direct examination at trial, Cardenas acknowledged telling police this, but he said that, in fact, defendant did not tell him who committed the murders. He also said that it was hard for him to testify because he "might feel something might happen to me after" his testimony. The next day, on redirect examination, Cardenas testified that defendant did tell him that he was the gunman. Then, on recross-examination, he changed his testimony again. He said that he had just lied on redirect examination, and that his testimony the day before (that defendant had not admitted being the gunman) was the truth.

The police seized a .223-caliber Armalite rifle from under a house in Los Angeles. Evidence indicated that the Lott Stoners 13 gang used the house to store weapons. Ballistics analysis established that two bullet casings that the police recovered from in front of the Jimenez residence after the shooting came from that rifle.

At the time of the shooting, none of the seven men who were at the Jimenez house were members of a gang. Sometime after he identified defendant at the live lineup, and before he testified at trial, Gutierrez became a member of the Lopez Maravilla gang. Gutierrez testified that the Lopez Maravilla gang and the Lott Stoner 13 gang do not get along.

Sergeant Al Garcia testified as an expert on street gangs in East Los Angeles. The gangs are concerned about their "turf"— the areas in which they are located. The Lott Stoners 13 gang and the Lopez Maravilla gang claimed turfs that were divided by a common street. The two gangs were "bitter enemies" that often assaulted each other. In gang culture, it was bad to be a "rat" or a "snitch," i.e., someone who assisted law enforcement as a witness or an informant. Sergeant Garcia testified that such persons are often intimidated not to testify. It does not matter whether a person provides information against a fellow gang member or a rival gang member. Either way, the person is considered to be assisting law enforcement and might be intimidated. Sergeant Garcia also testified that, in his experience, a member of the Lott Stoners 13 gang would not falsely tell police that a fellow Lott Stoners 13 gang member had committed a crime.

The parties stipulated that defendant had a prior felony conviction.

2. Defense Evidence

Defendant presented evidence that the police first received a call about the shooting at 8:49 p.m., on June 17, 1996, and that, based on the time of the call, the incident itself occurred around 8:45 p.m. Edwin Krupp, an astronomer, testified that in Los Angeles on June 17, 1996, sunset occurred at

[135 P.3d 941]

8:06 p.m. That night, the end of "evening civil twilight," meaning "the time that we generally say it is dark," was 8:35 p.m. A person would not notice any difference between the lighting at 8:35 p.m. and 8:45 p.m. The presence or absence of artificial light would affect how a person could see at that time.²

Dr. Walter Fierson testified about defendant's impaired vision. Defendant has only one functioning eye. His uncorrected vision in that eye was 20/60. George Little, a defense investigator, testified about an interview he and defense counsel had with Juan Rocha, the witness who consistently identified defendant as the shooter.

Diana Alvarado, defendant's longtime girlfriend, testified that defendant was with her all day on June 17, 1996. The two arrived at defendant's home around 7:30 that evening and were joined by Maria Velasco and another person. Around 9:00 p.m., the other two left, but Alvarado stayed with defendant until some time after 10:00 p.m.

Maria Velasco testified that she and a friend were with defendant and Alvarado the evening of June 17, 1996, until she and the friend left sometime around 9:00 to 9:30. She saw Alvarado often after June 17, 1996, but the first time Alvarado told her about defendant's arrest for a crime committed before 9:00 p.m. on that day was in September 1996.

3. Rebuttal

Detective Rodriguez testified that he spoke with defendant on July 9, 1996, about his activities on June 17, 1996. Defendant said that Alvarado dropped him off at his home at 8:00 p.m. that day. He never mentioned being with Maria Velasco that day.

B. Penalty Phase

1. Prosecution Evidence

Because the penalty verdict before us was decided by a different jury than the one that decided guilt, the prosecution presented evidence of the circumstances of the crimes of this case. In addition, it presented evidence that on August 22, 1995, while he was a passenger in a vehicle, defendant possessed a loaded assault pistol. As a result, defendant was convicted of possessing an assault weapon. It also presented evidence that on two separate occasions while incarcerated awaiting trial in this matter, defendant assaulted a fellow

[135 P.3d 942]

inmate. A week after the second assault, defendant was searched after he got off a jail bus and before he was...