People v. Ledesma

• Decision Date: 02 January 1987
• Citation: 729 P.2d 839,233 Cal.Rptr. 404,43 Cal. 3d 171
• Court: California Supreme Court
• Parties: , 729 P.2d 839 The PEOPLE, Plaintiff and Respondent, v. Fermin Rodriguez LEDESMA, Defendant and Appellant. In re Fermin Rodriguez LEDESMA on Habeas Corpus. Crim. 21436, Crim. 23178.

Page 404

233 Cal.Rptr. 404

43 Cal.3d 171, 729 P.2d 839

The PEOPLE, Plaintiff and Respondent, v.Fermin Rodriguez LEDESMA, Defendant and AppellantIn re Fermin Rodriguez LEDESMA on Habeas Corpus.

Crim. 21436, Crim. 23178.

Supreme Court of California In Bank.

Jan. 2, 1987.

[43 Cal.3d 176][729 P.2d 840]

Robert R. Bryan, San Francisco, for defendant and appellant: petitioner on habeas corpus.

John K. Van de Kamp, Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Ann K. Jensen and Dane Gillette, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

MOSK, Justice.

Defendant was convicted of first degree murder (Pen.Code, § 187), kidnapping (id., § 207), and two counts of robbery (id., § 211); special circumstance allegations of the intentional killing of a witness (former Pen.Code, § 190.2, subd. (c)(2)), felony-murder robbery (id., subd. (c)(3)(i)), and felony-murder kidnapping (id., subd. (c)(3)(ii)) were found true; and defendant was sentenced to death (id., § 190 et seq.).Defendant appeals (Pen.Code, § 1239, subd. (b)), and also petitions for habeas corpus on the ground that he was denied his constitutional right to the effective assistance of counsel at trial.The proceedings have been consolidated for decision.

To assist this court in resolving the ineffectiveness claim, we appointed the Honorable Joseph P. Kelly, Judge of the Superior Court of Santa Clara County, Retired, as referee to take evidence and make findings of fact and conclusions of law regarding that claim.Following the hearing, the referee filed his report.He concluded that defendant's trial counsel was incompetent in several particulars, that as a result he subjected the defense to prejudice, and hence that he failed to provide defendant with effective assistance.Accordingly, he recommended that the petition be granted and the writ issue.

As we shall explain, we adopt the referee's report in relevant part and follow the referee's recommendation, and hence grant the petition and vacate the judgment of conviction.

I.THE FACTS

On August 26, 1978, Gabriel Flores was working as an attendant at the Hudson Oil Company gasoline station at 437 West San Carlos Street in San Jose.About 5:15 p.m. two men rode into the station on a motorcycle; the driver got off, drew a white-handled gun, robbed Flores of money and some other items, and then mounted the motorcycle and sped off.Flores gave the police the license plate number of the motorcycle and a description of the robbers.

Not long afterwards San Jose Police Officer Ronald Webster, who was on patrol in the general area, received a report of the robbery and a summary of the information Flores provided.He requested a registration check and was informed that the suspect motorcycle was registered to defendantat 985 South First Street in San Jose.He proceeded to that address and was soon joined by two other officers.The three parked out of sight and set up a stake-out in the hope that the motorcyclist would return.After about half an hour they approached the front door and encountered the occupant, Leticia Mejia, and stated that they were looking for defendant.Mejia, defendant's former girlfriend, told them that he used to live there but had moved several months earlier, that she thought he was then living in the area of Third and Hedding Streets, and that he drove a white Cadillac when he was not riding his motorcycle.

Officer Webster proceeded to the area of Third and Hedding Streets, went up and down the streets looking for a white Cadillac, and eventually found one parked in the driveway of a duplex at 960 North Fourth Street.Parking about a block away, Webster requested a registration check and was informed that the vehicle was registered to defendantat 960 North Fourth Street.He returned to the duplex and staked it out for between 20 and 30 minutes.He then called for Officers Habina and Maria Guerra to help him approach the duplex.He and Habina went to the front door and Guerra went around back.

At the door they encountered Lawrence Santiago and Millie Dominguez, and told them they were looking for defendant and his motorcycle in connection with a robbery that had been committed earlier that afternoon.Santiago and Dominguez stated that defendant was not home at the time.Without a warrant the three officers, who were armed and in uniform, then entered the apartment, ordered Santiago and Dominguez to remain in the living room and not move, and conducted an unsuccessful search for defendant.As they were questioning Santiago and Dominguez after completing the search, the telephone rang.The officers prohibited Santiago and Dominguez from answering.Officer Guerra picked up the receiver, identified herself in Spanish as "Millie," and was told by the caller--who said he was defendant--that he was "hot" and knew the police were after him, and that she should lock the apartment and the white Cadillac and take a walk.

Three days later, on August 29, 1978, San Jose Police Sergeant Robert Traskowski, who was in charge of the robbery investigation, presented to Flores a display of six photographs; defendant's was included and was marked Number 4.After studying the photographs for a minute, Flores pointed to Number 4 and said, "No. 4 looks like the guy."When asked whether he was sure that Number 4 was the robber, he looked at the photograph about 10 seconds and responded, "No. 4 is the only one that looks like him."When asked later that day, "Is the man in photograph # 4 the same one who had the gun and took the money?,"he answered, "Yes."Traskowski then obtained a robbery complaint against defendant and a warrant issued for his arrest.Beyond Flores's identification, no eyewitness or physical evidence linked defendant to the crime.

At 8:15 p.m. on September 5, 1978, the San Jose police arrived at the Hudson Oil Company gasoline station at 437 West San Carlos Street in response to calls from customers stating that the station was unattended.They found that the station appeared to be open for business; on the office counter sat a cigarette smoldering in an ashtray and a half-empty bottle of cold Coca-Cola; although some money and a tapestry were missing, rolls of coins remained on the counter in plain view.The police determined that the person on duty that night was Flores.The bicycle he used to ride to and from work remained at the station.

On September 8, 1978, Flores's body was discovered in an embankment off Hecker Pass Road in the heavily wooded mountains of southern Santa Clara County near Gilroy.The body bore one gunshot wound in the top of the head, one in the back, and two in the abdomen, and several stab wounds in the chest.No eyewitness or physical evidence linked defendant to whatever occurred at the gasoline station on September 5 or to the murder.

Sometime in the late summer or early fall of 1978defendant went to Salt Lake City, where he remained until the middle of March 1979.Soon afterwards he returned to San Jose and was arrested.

II.PRETRIAL AND TRIAL

Defendant was charged with robbing Flores on August 26, 1978, and September 5, 1978, and with kidnapping and murdering him; as to the murder count, special circumstances of intentional killing of a witness, felony murder-robbery, and felony murder-kidnapping were alleged.At the preliminary hearing defendant was represented by Deputy Public DefenderDavid Johnson.He was held to answer, and entered a plea of not guilty and denied the special-circumstance allegations.Not long afterwards he retained Jefferson M. Parrish, Jr., as counsel and substituted him for the public defender.

With a single exception, Parrish made no motions before trial.The exception was a successful request under Evidence Code section 1017 for the appointment of a psychiatrist, John P. Glathe, M.D., to examine defendant.The request had been drafted by the public defender's office, but was altered to bear Parrish's name and address in place of the public defender.Prior to trial the following colloquy took place between the court and Parrish.

"THE COURT: ... In connection with the case, as I understand it, it's a single plea of not guilty.And Mr. Parrish, you've had the opportunity of psychiatric evaluation assistance and preparation of your case, as I understand it?

"MR. PARRISH: Yes, your Honor, I have.

"THE COURT: There is no insanity plea in the case?

"MR. PARRISH: No. I feel that's not a plea in this case.

"THE COURT: And in connection with the matter, I don't wish to delve into your defense in any way or ask you to divulge anything that would be adverse to your client.But in view of the recent cases, I want to make sure that you have considered the possibility of diminished capacity in a case of this nature.

"MR. PARRISH: Yes, your Honor.I have considered both [after reviewing] the psychiatric examination and also the strategy and defense of the case and decided not to use that as a defense."

Prior to trial, as the habeas corpus record reveals, the prosecutor, George Kennedy, committed himself in Parrish's presence not to introduce the victim's extrajudicial identification of defendant.

Jury selection spanned five court days.Without any objection on the part of Parrish, the voir dire was conducted in open court and without sequestration.

On the third day of jury selection the court effectively raised sua sponte the issue whether the prosecutor was using his peremptory challenges to strike Hispanics on the ground of group bias alone in contravention of the rule declared in People v. Wheeler(1978)22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, and its progeny.By this time the prosecutor had already stricken, among others, prospective jurors Amelia Maes, Michael A. Logan, and Lupe Jiminez: Maes spoke Spanish and was evidently Hispanic; Jiminez also spoke Spanish and was evidently Hispanic; Logan appears not to have been Hispanic, but was married to a member of that group.It is not...