People v. Lopez, Cr. 34850

• Decision Date: 13 December 1979
• Docket Number: Cr. 34850
• Citation: 160 Cal.Rptr. 774,99 Cal.App.3d 754
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Manuel LOPEZ, Defendant and Appellant.

Page 774

160 Cal.Rptr. 774

99 Cal.App.3d 754

The PEOPLE, Plaintiff and Respondent, v. Juan Manuel LOPEZ, Defendant and Appellant.

Cr. 34850.

Court of Appeal, Second District, Division 4, California.

Dec. 13, 1979.

As Modified Dec. 20, 1979.

Hearing Denied Feb. 20, 1980.

Quin Denvir, State Public Defender, Harold E. Shabo and Robert Scarlett, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Weisman and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

By information defendant was charged with the murder of Antonio Magallon in violation of Penal Code section 187. It was also alleged that defendant had used a firearm during the commission of the offense in violation of Penal Code section 1203.06, subdivision (a)(1).

Defendant entered a plea of not guilty and denied the firearm use allegation. Defendant personally and all counsel waived the right to trial by jury. Trial was by the court. Defendant was found guilty of murder in the second degree. The court found to be true the allegation that defendant had used a firearm during the commission of the offense. Probation was denied, and defendant was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

I The Factual Background

On November 19, 1976, the Los Angeles Police Department received a report that shots were being fired at the address 1242 Wilmington Boulevard in Wilmington. Officer Ibarra went to the location at 10 p. m. and discovered three .22 caliber expended cartridges in the street in front of the Wilmington Address. Ibarra spoke to defendant and advised him of the constitutional rights. Defendant waived his rights and admitted shooting the .22 semi-automatic Glenfield model 60 rifle. The police took possession of the weapon, but, on December 21, 1976, it was released to Regina Lopez, wife of the defendant.

On Saturday night April 1, 1977, near midnight, Audrey Hart, the manager of the Holland Hotel at 126 West D Street in Wilmington, noticed that a disturbance was taking place in front of the residence next to the hotel, at 122 West D Street. She called Jim Wise to the scene; Wise, the owner of both the hotel and the residence next to it, had been working on one of the floors of the hotel.

Wise left the hotel and approached three individuals arguing in Spanish; he noted that one individual involved was Antonio Magallon, his tenant at 122 West D Street, and that Magallon had been drinking. He appeared very angry, and was trading insults with two males standing next to a vehicle parked in the street. Wise attempted to calm Magallon down; Magallon started toward his residence, but another remark from one of the two men brought him back to the car, which he kicked. One of the men got into the car, but the other took a rifle out of the car.

Rudy Marquez, defendant's half brother, testified at trial that he and his girlfriend, Anita Hernandez, had been driving in the area of Avalon and D Street when they saw defendant engaged in argument with Magallon. Rudy approached the two with the intention of getting defendant away from the scene; he observed that defendant was intoxicated, although not extremely so. According to Rudy Marquez, as Magallon headed for his residence, defendant took a rifle from the car, stating that he was "going to scare the guy a little." Defendant commenced firing the rifle. Six to eight shots were fired.

Wise, Audrey Hart and another woman fled into the hotel when the shooting began. Down the street, a young woman, Susie De los Santos, was sitting in a parked car with her boyfriend, and observed a red car parked on D Street with three men standing beside it. Then she heard the shooting. She watched the man holding the gun get into the car, which began moving down the street. She testified that both the driver and the passenger in the red car were Chicanos.

Antonio Magallon was married and had five children. The oldest, Gerardo, testified that on this occasion he had heard the shots and observed his father coming through the front door of 122 West D, screaming. Magallon collapsed in the front hallway and died.

After the shooting, defendant parked his automobile nearby and went home with Rudy Marquez and Anita Hernandez; Marquez and defendant returned later that evening, after the police had left the area, and defendant regained possession of his automobile; apparently the rifle had remained on the back seat of defendant's vehicle.

Wise called the police after the shots were fired; they arrived quickly. Los Angeles Police Officer Woodrum found eight .22 caliber shell casings in the street and placed them in an envelope.

None of the witnesses at the scene of the crime could provide much in the way of identification, although the police report filed on the incident mentioned the color of the automobile.

On April 2, 1977, Rudy Marquez spoke of the incident to Anita Hernandez, telling her that he had seen the defendant shoot Magallon, and that defendant sometimes got carried away and liked to fire his rifle. He gave Anita some bullets, and told her to dispose of them. A half-sister of defendant Julie Larious, overheard defendant telling his mother he had shot a man, and was going to Texas because the police were looking for him; Julie also discussed the matter with Anita Hernandez, who told her she had seen defendant take the gun out of his car.

An autopsy conducted on Magallon's body revealed that Magallon had been shot six times, the fatal shot have perforated his lung and heart from the back. Fragments of bullets were removed from the body and preserved as evidence. A ballistics expert, Baggett, examined the bullet fragments; while he could not determine that the bullets had been fired from a particular weapon, he did conclude, from the unique grooves on the fragments, that the bullets had been fired by a Marlin Glenfield weapon, and that the fragments were consistent with those that would be fired from a .22 long rifle. The markings were also consistent with a Glenfield model 60 .22 caliber rifle.

Shortly after the shooting, defendant left for Texas; while there he visited an older married half-sister, Yolanda. He also encountered another half-brother, Los Angeles Police Officer Catarino Marquez, known as Marc, who happened to be taking a spring vacation, and had stopped to see Yolanda. Defendant was evasive, but Officer Marquez had no reason to suspect defendant of any crime at that time.

The major Marquez residence was that of the mother, Maria, at 1242 Wilmington Boulevard. It was apparently sometimes the home of Rudy Marquez and defendant, and all the other family members visited frequently, including Officer Marquez, who lived elsewhere. When Officer Marquez returned from Texas, he heard enough family gossip to entertain the suspicion that defendant had been involved in a shooting incident. Officer Marquez acquainted himself with the details contained in police reports of criminal activity that had recently taken place. He noted that the general description of the suspect in the Magallon murder fitted that of his half-brother, the defendant, and that the car was similar to the vehicle he had sold his half-brother, the defendant, some time previously.

While not assigned officially to the case until April 1978, Officer Marquez attempted to gather information about the Magallon murder during the early months of 1978, although various family members and an Elaine Abercrombie, a girlfriend of defendant, attempted to dissuade him from his task. In February 1978, Officer Marquez got a statement from Anita Hernandez implicating defendant in the Magallon murder; and on April 24, 1978, Officer Marquez arrested Rudy Marquez, his brother, and got a statement from him which was tape recorded.

Defendant had, by this time, returned from Texas. However, when he learned that his arrest was imminent, he commenced making plans to again leave the state. Officer Marquez, now officially assigned to the case, went to the 1242 Wilmington address on the evening of April 24, 1978, to arrest defendant. There he learned of defendant's efforts to raise money in order to effectuate his escape. Someone there advised Officer Marquez that defendant was at the Comet Motel, about two blocks away, waiting for money to be delivered to him; this information was given Officer Marquez 20 minutes before the actual arrest took place.

Early in the morning of April 25, 1978, Officer Marquez and some other police officers went to the Comet Motel in Wilmington and located defendant there, registered as Juan Valencia. Marquez knocked on defendant's door several times without getting a response. He stated that he was a police officer and was there to arrest defendant. Defendant opened the door, and was standing at the doorway when Marquez advised him he was under arrest for murder. Officer Marquez had not obtained an arrest warrant.

Defendant was transported to the Harbor Police Station. He kept asking Officer Marquez the details of the charge against him. Marquez replied that he did not want to talk to defendant unless defendant was willing to make a statement. At the station defendant was advised by Marquez of his constitutional rights, including the right to remain silent. Defendant was asked if he wished to give up the right to remain silent, to which he replied: "No." At that point, Officer Marquez indicated that the interrogation was at an end. Defendant was concerned, however, about his half-brother, Rudy Marquez. He asked Officer Marquez if Rudy was in custody, and was told he was. He asked again about the evidence against him, and was told that Rudy had made a statement implicating him. Defendant asked to read the statement, but was told he could not. Defenda...