People v. Luparello

• Decision Date: 25 November 1986
• Citation: 231 Cal.Rptr. 832,187 Cal.App.3d 410
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Gaetano Phillip LUPARELLO et al., Defendants and Appellants. D003512.

Page 832

231 Cal.Rptr. 832

187 Cal.App.3d 410

The PEOPLE, Plaintiff and Respondent, v. Thomas Gaetano Phillip LUPARELLO et al., Defendants and Appellants.

D003512.

Court of Appeal, Fourth District, Division 1, California.

Nov. 25, 1986.

Review Denied Feb. 11, 1987.

Thomas Gaetano Phillip Luparello, in pro. per

Michael Ian Garey, Newport Beach, Shaw & Compton, Ann Shaw and Scott R. Jakust, Tustin, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Keith I. Motley, M. Howard Wayne and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (PEN.CODE, §§ 182¹, subd. (1), 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor's conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants' contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello's wife, Terri left her job in May, 1980. Terri then met and shortly thereafter married Ed Gadzinski.

Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello's house. Luparello then had three other roommates; Brad Wilson, Ben Wilson and Ron Jennings.

On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello's house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello's child.

Luparello called home on May 9 and a roommate told him Terri had left. Luparello Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as "Spooky" gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to "thump" the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and "Spooky" left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.

returned immediately and began an intensive search for Terri. He [187 Cal.App.3d 419] contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed's workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello's patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello's roommate, and the four drove to Orduna's house. On the way, Luparello and Salmon discussed the cost for Orduna's and Salmon's services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.

On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.

Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. (1), 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.

After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment

for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.

LUPARELLO'S APPEAL

I PROSECUTORIAL MISCONDUCT

A prosecutor is not merely an advocate for the People. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ..." (In re Ferguson (1971) 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234.) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580, 189 Cal.Rptr. 855, 659 P.2d 1144.) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955, 114 Cal.Rptr. 632, 523 P.2d 672.) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance "in isolation might not be considered 'grossly improper', [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction." We begin by reviewing each allegation and then determining their cumulative effect, if any.

A. Improper References to Street Gang Membership

In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the "F-Troop" gang, an ethnic street gang based in Orange County. Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.

Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor's attempt to inform the jury regarding Orduna's prior assistance in Luparello's dispute with some neighbors. The first of these occurred during Brad Wilson's direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued:

"... What was the substance of the conversation?

"A That at a previous time--I'm unsure when--

"[Luparello's Counsel]: Same objection.

...