People v. Morales, E032037.
| Decision Date | 27 October 2003 |
| Docket Number | No. E032037.,E032037. |
| Parties | The PEOPLE, Plaintiff and Respondent, v. John Anthony MORALES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Ivy K. Kessel, under appointment by the Court of Appeal, Encino, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood and Pamela A. Ratner Sobeck, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
In defendant John Anthony Morales's first trial, the jury acquitted him on one count of murder, but deadlocked on two counts of robbery. In a retrial, the second jury found him guilty on both counts of robbery, as well as on a newly alleged third count of attempted robbery. Various enhancements, including gang enhancements to all three counts, were found true.
In the published portions of this opinion, we will hold that:
(1) The first jury's verdicts, acquitting defendant of murder (including felony murder) yet deadlocking on robbery, were inconsistent and therefore did not bar a retrial of the robbery charges.
(2) Defendant cannot show that prosecution witness Joe Virgen testified falsely; even assuming, however, that Virgen did testify falsely, the prosecutor did not commit misconduct by presenting his testimony because other evidence and the prosecutor's own closing argument fully disclosed any falsity.
(3) The evidence that defendant knowingly committed the charged crimes in association with two fellow gang members was sufficient to support the jury's findings on the gang enhancements that (a) the crimes were "committed for the benefit of, at the direction of, or in association with" a gang, and (b) defendant committed the crimes "with the specific intent to promote, further, or assist in any criminal conduct by gang members...." (Pen. Code, § 186.22, subd.(b)(1).)
In the unpublished portions of this opinion, we find no other reversible error. Accordingly, we will affirm.
Richard and Ralph Avila were brothers. In May 1999, Richard was 17; Ralph was about 10 years older. Joe Virgen was their friend and neighbor.
According to Virgen, on May 28, 1999, about 4:00 p.m., Ralph came over to visit him. Around 6:00 p.m., Richard arrived. They all drank beer and listened to music. The group finished one 24-pack of beer and started in on a second. Virgen drank a total of 12 to 15 beers; Ralph drank about as many. Richard drank less. Virgen was drunk. He assumed Ralph was, too, although Ralph did not act drunk.
Around 10:00 or 11:00 p.m., Richard asked "if his home boy could come over." After Virgen agreed, Richard used Virgen's telephone to call this person. Around 2:00 a.m., Virgen went out to the living room; he found three men he did not know talking to Richard and Ralph. Richard introduced them. At trial, Virgen could not identify defendant as one of the men.
Virgen could not remember whether any of the three men drank beer. A methamphetamine pipe was passed around. Virgen and Richard each took a "hit"; Ralph did not. None of the three men appeared to be drunk or high.
After 45 minutes or an hour, Virgen went back to his bedroom to make a phone call. Before he could do so, however, one of the three men put a gun to the back of his head and demanded money, jewelry, and guns.
Virgen handed over his wallet; it contained over $1,100, because he had just gotten paid. The gunman made Virgen empty out his jewelry boxes onto his bed, but Virgen had no jewelry. The gunman rummaged around in Virgen's closet. There were no guns in the house, because Virgen was on probation, but there were boxes of bullets in the closet.
Meanwhile, Virgen heard a "commotion" in the living room. He heard someone say, "Give me your money or I'll shoot you." A second man with a gun came in the bedroom and said, "[D]on't fucking lie or I'll shoot you." That man rummaged through the closet, too, then left.
Seconds later, Virgen heard shots. The gunman put his gun to Virgen's forehead, paused for a second, then ran out of the room. Virgen heard a car "peel out...." He went out to the front porch. He saw Ralph lying there, bleeding. Richard and a neighbor were with him.
Virgen denied that there was any drug deal going on. He admitted having two prior felony convictions for possession of methamphetamine for sale.
A week or two before the shooting, Richard testified, he had arranged for Virgen to buy methamphetamine from defendant. Defendant, accompanied by his girlfriend, had delivered the methamphetamine to Virgen's house.
On May 28, 1999, in the early afternoon, Richard went to Virgen's house. Virgen was drinking beer. Around 11:00 p.m., at Virgen's request, Richard phoned defendant to buy some more methamphetamine. Defendant agreed to sell one ounce of methamphetamine for about $1,000. He said he would bring it to Virgen's house in a couple of hours.
Around midnight, Ralph dropped in. He drank some beer. Because Richard knew that Ralph did not approve of methamphetamine, he warned him that "there was a drug deal going down...."
About 2:00 a.m., defendant arrived. Richard was outside waiting for him. Defendant was driving his own car; Joe Moreno was with him. George Flores also accompanied them, driving a separate car. Defendant gave Richard some of the methamphetamine in a pipe, to sample. Richard smoked it. He then invited them all into the house.
Defendant introduced Flores as "Spooky" and Moreno as "Huero Joe." Everybody except defendant drank beer. Richard had had a total of about two beers. A methamphetamine pipe was passed around, and everybody except Ralph smoked some. Richard felt a "buzz."
After 30 or 45 minutes, Virgen and defendant went into the kitchen. Shortly after that, Richard saw defendant going down the hallway that led to Virgen's bedroom. Flores and Moreno pulled out guns. They ordered Richard and Ralph to get on the floor and to hand over their money and jewelry. Richard got down on his knees. They then told Richard and Ralph to go to a corner; Richard complied. From there, he could see defendant, holding a gun, pushing Virgen into the bathroom.
Ralph sat in a chair. He did get down on his knees briefly, but got up again. He kept "asking them why they were doing this." Twice, he made a grab for Moreno's gun. After declaring that "[h]e was not going to give up his stuff," Ralph walked out a sliding glass door into the back yard, ignoring Flores and Moreno's threats to kill him if he left.
Flores and Moreno put their guns to Richard's head and told him he was going to die. Flores took his wallet. "[A] couple [of] seconds later," Ralph came back in. He "tried to talk to them some more and they wouldn't."
Ralph said, "[F]uck it, Rich," then put up his fists, in "boxing position." He was six feet seven inches tall; he weighed 281 pounds. He went toward Flores and Moreno. They backed up toward the front door. They pointed their guns at Ralph and told him to stop, but he just kept going. They fired. He fell on the porch. Flores and Moreno ran outside and left in Flores's car. Defendant ran out to the living room; Richard saw a gun in his hand. After seeing Ralph lying on the porch, defendant left in his own car.
Richard called 911. While he was on the phone, a neighbor arrived. Virgen emerged from a back room, saw Ralph, and started "tripping."
Initially, when Richard was interviewed by the police, he did not tell them about the drug deal. Once they told him that Ralph was "not doing so good," however, he told them the truth.
Five bullets struck Ralph—three from one gun and two from a different gun. He died of his wounds. His blood alcohol level was 0.19 percent.
Virgen's next-door neighbor testified that she heard the shots, then ran over to Virgen's house. Virgen looked scared. He told her, "[T]here was a gun to [my] head," and added, "I thought I was dead."
The police searched the house but found no guns, no drugs, and no methamphetamine pipes. Virgen's jewelry boxes were out on his bed. A mug, a box of bullets, and other boxes were on the floor of his bedroom. Defendant's fingerprints were found on a box of bullets in Virgen's bedroom closet.
The next day, the police talked to defendant's mother. She gave them his address. A police officer went to defendant's house and observed Richard Renteria driving defendant away. Other officers stopped the car and arrested both of them. Defendant had $1,268 in his pocket. In an in-field showup, Virgen identified defendant as the gunman who had robbed him.
Renteria told the police that defendant had jumped in his car and had then explained, Defendant displayed a "fist full" of cash and said, "[W]e've got the money, but we threw the guns out on the freeway on the way home from Riverside last night." Renteria also said that "he would absolutely not testify" against defendant, Flores, or Moreno, because he was afraid of gang retaliation. At trial, Renteria denied making any of these statements.
Defendant admitted agreeing, through Richard, to sell methamphetamine to Virgen. Defendant asked them to come to his house or to meet him somewhere in between, but Richard said no, they wanted defendant to deliver the methamphetamine to Virgen's house in Riverside. Defendant asked Flores and Moreno to go with him because he did not have a driver's license, and also because he did not know Richard and Virgen very well.
When they arrived, Richard met them at the...
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