People v. Marquez

• Citation: 1 Cal.4th 553,3 Cal.Rptr.2d 710,822 P.2d 418
• Decision Date: 23 January 1992
• Docket Number: No. S004645,S004645
• Court: United States State Supreme Court (California)
• Parties: , 822 P.2d 418 The PEOPLE, Plaintiff and Respondent, v. Gonzalo Marquez MARQUEZ, Defendant and Appellant. Crim. 2404.

Page 710

3 Cal.Rptr.2d 710

1 Cal.4th 553, 822 P.2d 418

The PEOPLE, Plaintiff and Respondent, v. Gonzalo Marquez MARQUEZ, Defendant and Appellant.

No. S004645.

Crim. 2404.

Supreme Court of California,

In Bank.

Jan. 23, 1992.

Rehearing Denied March 18, 1992.

Eric S. Multhaup, San Francisco, under appointment by the Supreme Court, and Kathy M. Chavez, Berkeley, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White and George Williamson, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., and Carol Wendelin Pollack, Asst. Attys. Gen., William R. Weisman, Christine C. Franklin, Susan Lee Frierson and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

Defendant Gonzalo Marquez Marquez was convicted of the second degree murder of Angel Rodriguez (Pen.Code, § 187), ¹ the first degree murder of Ascencion Hernandez with three special circumstances (multiple murder, murder during the commission of robbery, and murder during the commission of burglary) (§§ 187, 190.2, subd. (a)(3), 190.2, subd. (a)(17)(i), 190.2, subd. (a)(17)(vii)), first degree burglary (§ 459), and robbery of Hernandez (§ 211). The jury found that defendant personally intentionally inflicted great bodily injury as to each count (§ 1203.075) and that defendant personally used a firearm as to all counts except the Hernandez murder (§ 12022.5). The jury fixed the penalty at death; this appeal is automatic. (Cal.Const., art. VI, § 11; § 1239, subd. (b).)

GUILT PHASE FACTS

Prosecution Case.

1. Murder of Angel Rodriguez.

On December 31, 1979, El Monte police responded to a call and found the body of

[822 P.2d 421] Angel Rodriguez lying on its back on the sidewalk. The victim's hands were in his pockets, and a hat was on his head. He had been shot in the head with a 9-millimeter handgun. Police questioned four Spanish-speaking individuals who lived nearby. They gave the police descriptions, names and nicknames of the two suspects. The witnesses also helped develop composite drawings of the suspects. An arrest warrant for defendant was obtained as a result of the information given. None of these witnesses could be located to testify at trial.

2. Murder of Ascencion Hernandez.

About 10:30 p.m. on March 15, 1981, Connie Hernandez was lying in her bed when she heard a voice in the living room saying "Chon, Chon," where her husband was watching a television program. Her husband's nickname was "Chon." She heard more voices, speaking Spanish, so she peeked out and saw two men pointing guns at her husband. Connie put on her robe, ran into the living room and stood between her husband and the two men with the guns, facing the latter. At that point another man ran through the front door, put a knife to Connie's stomach, and told her to be quiet. While face-to-face with the gunmen, Connie was crying and screaming in Spanish, begging them not to do anything. She testified that defendant was one of the two gunmen and that he did most of the talking. Defendant was described as wearing a beanie covering his hair and ears; the other gunman wore no hat or mask; and the person holding the knife wore a beanie that covered his face and had holes for his eyes. The gunmen demanded money from Hernandez and threatened to kill him. When one of the babies started crying, Connie told the men in Spanish that she was going to her daughter's room to tell her to get medicine for the baby. The man with the knife followed her. She knocked on the door and, in English, told her daughter Sandra to go out the window and ask the neighbors to call the police because there were three men there who wanted to kill her husband. (The men did not understand English.) Connie returned to the living room and again positioned herself between the gunmen and her husband. Defendant was still demanding money. Finally, her husband said he would give them the money he had, took about $140 to $150 from his wallet, and threw it on the floor. Connie ran into the kitchen, heard shots, returned to the living room, and found her husband lying in blood.

Connie estimated that she looked at defendant for five minutes. She said his nose was pointed and that his eyes were big and round. There was adequate lighting; the overhead light was on in the kitchen, as was a lamp on top of the television.

Sandra de la Fuente testified that her mother's screaming awakened her; she opened the door and saw a masked man standing next to her mother, holding a knife on her. As her mother went toward the bathroom, Sandra walked a little way up the hallway and saw defendant pointing a gun at her stepfather. Her mother told her to go back to her room, lock the door, and go through a window to call the police. Sandra had a good look at defendant and heard him asking her stepfather for money.

Tina de la Fuente was awakened by her mother's screaming, went into the hallway, and saw defendant pointing a gun at her stepfather. She looked at him for about a minute and returned to her room. She did not see any other intruders. In particular, she remembered defendant's long nose.

Defendant was identified by each of the three eyewitnesses--Connie, Sandra, and Tina. Each separately identified defendant from a live lineup and at trial. Each testified that she recognized defendant as soon as he entered the lineup area. Although Connie had been unable to identify defendant in a group of photographs shown her, she had told the officer that she could not make an identification from a photograph but thought that she would recognize the perpetrator in a live lineup. Neither Sandra nor Tina had been shown any photographs.

An autopsy revealed that Ascencion had been shot six times with a 9-millimeter handgun and three times with a .38-caliber

[822 P.2d 422] automatic. The 9-millimeter handgun was not the same gun that was used in the killing of Angel Rodriguez.

3. Defendant's Arrest and Confession.

Defendant was arrested at his residence by El Monte police around 1 a.m. on December 12, 1981. Defendant's brother Amelio and defendant's girlfriend Martina Pereida were also arrested and placed in custody on charges unrelated to the murder. At a pretrial Evidence Code section 402 hearing defendant testified on cross-examination that at the time of his arrest he was in the shower, with no water running, and that he was wearing pants and shoes. At trial, however, he testified that he did not remember saying that and asserted that he remembered only that he was in the bathroom and was wearing pants.

On December 14, 1981, defendant was interviewed by Detective Johnston of the El Monte police, who was investigating the 1979 murder, Detective West of the Los Angeles Sheriff's Department, who was investigating the 1981 murder, and Detective Parrott of the El Monte police, who was interpreting for the other two. Detective Parrott had spoken Spanish at home since the age of 10 and had studied it in high school and college. Detective Parrott was familiar with the vernacular used by defendant and many other Spanish-speaking people in El Monte. Detective Parrott advised defendant of his Miranda rights in Spanish from a Spanish-language rights card. Defendant appeared to understand what Detective Parrott said and his answers were responsive to her questions; he seemed relaxed and cheerful. Detective Parrott testified that no promises or threats were made to defendant or to any member of his family; defendant's answers appeared to have been freely and voluntarily given. Pursuant to departmental policy, the interview was not tape-recorded.

Detective Johnston and Detective West confirmed that Detective Parrott had read defendant his rights from a Spanish-language card, that no threats or promises had been made, and that defendant's statements appeared to have been freely and voluntarily made. Each requested Detective Parrott to ask certain questions. Detective Parrott had little independent information about the crimes.

In his statement on December 14, 1981, defendant admitted complicity in both murders. When he was asked about a man who had died on December 31, 1979, defendant first said he was not in the country at that time. He then admitted shooting the man after being told that there were witnesses who could identify him. Defendant said his cousin Mario had been fighting with the victim on Merced Street in El Monte. Mario told defendant to shoot the victim, so defendant shot him in the head with a blue steel automatic weapon.

When asked about the death of Ascencion Hernandez on March 15, 1981, defendant said he was there but that he did not kill him. Defendant said he was there with Miguel Reyes (known as "La Gusia") and Jaime Polido (known as "Chu Cho" or "Chu Chi"). They lived in neighboring apartments, defendant with his brother-in-law, and Miguel and Jaime next door. About two days before the killing, Miguel told the other two about a man who had a "whole lot" of money and suggested that the three of them rob him. Miguel knew the man because their ranches in Mexico were close to one another.

Defendant described how Miguel drove him and Jaime in Miguel's yellow Mustang to "Chon's" house about 10 p.m. Miguel and Jaime had automatic weapons and defendant had a knife; Miguel was wearing a beanie that was pulled down to cover his face. When they went inside the house, defendant heard a woman talking in English and he thought there was a little girl there. The woman later came into the room. The victim was watching television. Jaime called the man "Chon" and told him to give them the money. The man said he did not have it there. Defendant said that Jaime and Miguel were doing the talking; he was standing by the door. Defendant did not see the shooting, but he heard three or four bullets. Defendant described Miguel as five feet eleven inches tall, heavy Defense Case.

[822 P.2d 423] set, brown eyed, and having almost shoulder-length brown hair. He described Jaime as five...