People v. Ledesma, No. S014394.

CourtUnited States State Supreme Court (California)
Writing for the CourtGeorge
Citation140 P.3d 657,47 Cal.Rptr.3d 326
PartiesThe PEOPLE, Plaintiff and Respondent, v. Fermin Rodriguez LEDESMA, Defendant and Appellant.
Decision Date17 August 2006
Docket NumberNo. S014394.
140 P.3d 657
47 Cal.Rptr.3d 326
The PEOPLE, Plaintiff and Respondent,
v.
Fermin Rodriguez LEDESMA, Defendant and Appellant.
No. S014394.
Supreme Court of California.
August 17, 2006.

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Donald M. Thommen, Visalia, and Jeffrey J. Stuetz, Wheat Ridge, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias, Moona Nandi and Karl S. Mayer, Deputy Attorneys General, for Plaintiff and Respondent.

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GEORGE, C.J.


After a retrial following reversal of defendant's conviction and death sentence, defendant was convicted of first degree murder, kidnapping, and two counts of robbery, and true findings were returned on allegations that he personally used a firearm in the commission of these offenses. (Pen.Code, §§ 187, 207, 211, 2022.5, 1203.06.)1 Two special circumstances were found true — the intentional killing of a witness, and murder in the commission of a robbery. (Former § 190.2, subd. (c)(2), (3)(i) & (ii).)2 After the penalty phase of the trial, the jury returned a verdict of death and the trial court denied defendant's motion to modify the death verdict. (§ 190.4, subd. (e).) This appeal is automatic. (§ 1239, subd. (b).) We reverse one of the robbery counts and the robbery special circumstance, but in all other respects affirm defendant's conviction and death sentence.

I. FACTS

The trial, which took place in 1989, was defendant's second trial for offenses arising out of the robbery and murder of Gabriel Flores in 1978. Defendant first was convicted of these crimes and sentenced to death in 1980. In addition to his automatic appeal in that matter, defendant filed a habeas corpus petition in this court alleging that his trial attorney had provided constitutionally ineffective assistance. We appointed a referee to take evidence and make findings of fact and conclusions of law regarding that claim. The referee concluded, and this court agreed, that trial counsel had provided defendant with inadequate legal assistance on the basis of numerous inadequacies in his representation, including counsel's failure to conduct adequate investigation and research, in particular with regard to the defense of diminished capacity. (People v. Ledesma (1987) 43 Cal.3d 171, 223, 224, 233 Cal.Rptr. 404, 729 P.2d 839) (hereafter Ledesma I.) Accordingly, we vacated the judgment and remanded defendant's case to the superior court.

At the retrial, the prosecution presented evidence that on August 26, 1978, Mr. Flores was working at a Hudson gas station in the City of San Jose. That afternoon, he called his manager at home and reported that he had just been robbed and had obtained the license number of the motorcycle used by the robbers. Police officers went to the gas station and interviewed Mr. Flores. He described the robbers as two Mexican males, and explained that one of them stayed on the motorcycle and the other brandished a white gun and asked for his money. One of the robbers took some cash and went through some drawers, and the two men then left. About $30 was missing from the gas station. Mr. Flores provided the police officers with the license plate number of the motorcycle.

Police officers received a radio broadcast indicating that the motorcycle was registered to defendant, and they promptly went to the address listed on the motorcycle registration. They were told that defendant no longer lived there, and were directed to his current residence. When the officers arrived at defendant's apartment, he was not at home. Two visitors let them in, one of whom was Millie Dominguez. While they were there, the telephone rang and a police officer answered it, speaking in Spanish and identifying herself as Millie Dominguez. The caller identified himself as Fermin Ledesma and said that he was "hot," that the police were looking for him, and that she should lock the apartment and the doors of his car and take a walk. The police were unsuccessful in locating defendant at that time.

Three days after the robbery, the police showed Mr. Flores a six-image photographic lineup. He identified a picture of defendant as looking like the person who held the gun during the robbery. The police then obtained a warrant for defendant's arrest. On September 1, 1978, police officers proceeded to defendant's apartment. They did not find him there, but defendant's friend Jesse Perez was in the apartment. Because Jesse resembled

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the description of the second robber, the police took him into custody for questioning. During the interview, Jesse was told that a warrant had been issued for defendant's arrest, that Jesse was also a suspect, and that a photographic lineup with Jesse's picture would be shown to the victim. He was released after the interview.

A few days later, on September 5, 1978, Mr. Flores disappeared. At approximately 3:00 that afternoon he had started work at the same gas station that had been robbed about one week earlier. Later that evening, the police found the gas station open but with no attendant on the premises. Three days later, on September 8, 1978, Mr. Flores's body was found in a ravine in the City of Gilroy. There were four gunshot wounds to his body from .22-caliber bullets, and two stab wounds to the chest. Mr. Flores had been wearing light tan boots when he arrived at work on the day he disappeared, but when his body was found it lacked any footwear. He had no paper money in his pockets, only a small number of coins. According to the gas station manager, Mr. Flores normally carried about $30 in cash when he was working, so that he could make change for customers. Three or four days after Mr. Flores disappeared, the manager noticed that a tapestry that had been hanging in the gas station was missing.

Defendant was not immediately arrested because, shortly after the killing, he moved to Salt Lake City, Utah. In March of 1979, a deputy sheriff who was attempting to locate defendant in San Jose pulled over a car in which defendant was a passenger. When the deputy asked defendant his name, he replied "you have the right guy," and he was arrested for the robbery and murder of Mr. Flores.

No physical evidence connected defendant to the gas station robbery or the murder, but a number of witnesses testified that defendant had admitted committing the crimes. At trial, Santiago Ontiveros, a friend of defendant's, denied remembering anything defendant told him about the robbery, but in a taped interview he had told the police that defendant had said he committed the robbery with Jesse Perez. Sylvia Lopez Ontiveros, who had been married to Santiago Ontiveros, also denied at trial remembering that defendant had said anything to her about the crimes. Her contrary preliminary hearing testimony was read into the record. She testified at the preliminary hearing that during a telephone call, defendant told her he had killed a person who had identified him in a robbery. According to that testimony, defendant told her that if he eliminated the witness, there would be no one to testify against him. When he went to the gas station, the victim did not recognize him, but was killed anyway. Defendant told Sylvia Ontiveros that he was going to leave town and change his identity. A statement made by Sylvia Ontiveros to the police was consistent with her preliminary hearing testimony.

Jona Cardona, who had been Jesse Perez's girlfriend at the time of the crimes, testified that she overheard a conversation in which defendant said that he and Jesse had robbed a gas station and that the person they robbed had identified defendant from a photograph and knew his motorcycle license number. According to Cardona, defendant said he was going to obtain revenge on the man who worked at the gas station. Later, after she learned the man had been killed, she overheard another conversation in which defendant and George Perez discussed how the man had died: Defendant and three others — George, Jesse, and someone known as "Crazy Joe" — went to the gas station and asked the man to put some oil in the back of their truck. They pushed him into the truck, drove him into the mountains, and shot and stabbed him. In another conversation recounted by Cardona, the other individuals teased Jesse because he would not stab the man and because he stole the man's boots. After defendant had been arrested, Cardona made an anonymous telephone call to the police to report what she had heard, because she believed that defendant was receiving all the blame even though others were involved. A tape recording of that telephone call was played at the trial.

Cardona's sister, Shirley Chavez, testified that she had overheard a conversation between defendant, George Perez, and "Crazy Joe." According to Chavez, in this conversation defendant did most of the talking. He

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said that he and Jesse had robbed a gas station. Later defendant, Jesse, George, and Joe went back and kidnapped the victim because he had selected defendant's picture from a lineup. Defendant shot him. He asked the others to stab the victim so that he would not be the only person involved. They dumped the body in an orchard. Jesse kept the victim's boots.

As noted above, shortly after the murder, defendant moved to Salt Lake City. Two men who met defendant while he was in Utah testified that defendant had admitted committing a robbery and murder. Michael Shay...

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