People v. Pacheco

Decision Date09 March 1981
Docket NumberCr. 20509
Citation172 Cal.Rptr. 269,116 Cal.App.3d 617
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. John Robert PACHECO, Defendant and Appellant.

Quin Denvir, State Public Defender, Isadora W. Lomhoff, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Judge.

Defendant, John Pacheco, appeals from a judgment entered on a jury verdict finding him guilty of second degree murder (Pen.Code, § 187) and use of a deadly weapon (Pen.Code, § 12022, subd. (b)). He contends that: 1) the evidence is insufficient to support the judgment and the verdict; 2) he was deprived of his Sixth Amendment right to trial by a representative cross-section because the court "death qualified" the jury and, in any event, a jury so chosen is not impartial; and 3) the court committed reversible error in failing to require an offer of proof of first degree murder before "death qualifying" the jury.

Prior to trial, defendant moved to impanel the jury without reference to the death penalty on the ground that the lengthy process of death qualification was inappropriate in a case where the prosecution could not make an offer of proof which would show first degree murder. The lower court denied this motion on the ground that it had no authority to require such a showing, but noted the absence of evidence on the element of premeditation and deliberation. 1

On August 1, 1979, death qualification of the jurors was begun in chambers; after the completion of the first of the two jury panels, the defense moved for a mistrial. The motion was denied and the defendant's subsequent petition for writ of mandate denied without opinion. At the conclusion of the prosecution's case, the trial court granted a defense motion for acquittal of first degree murder pursuant to Penal Code section 1118.1, but denied a defense motion for mistrial based on the prejudice caused by the death qualification. On August 20, defendant was convicted of second degree murder on Count I with a finding that he used a deadly weapon, a knife, but acquitted of Count II (assault with a deadly weapon). His motion for a new trial was denied and he was sentenced to state prison for a term of 19 years to life.

The pertinent facts as revealed by the record are as follows: Eva and John LeBeau were married in January 1970, separated in April 1976, but never filed for dissolution. In September 1978, Eva met defendant in a bar and by December of that year was living with him at 491 Arletta in San Jose, together with Jackie, Eva's daughter by John LeBeau.

On February 12, 1979, the victim, LeBeau, called Eva and asked her if she would agree to a divorce. He indicated that he was willing to file the action, pay the fees, and provide $100 a month in child support. He also asked if he could come to 491 Arletta that night to give Jackie a check for her birthday. Eva agreed after some hesitation. When Eva told defendant about this conversation, defendant indicated that he did not want to be there with LeBeau, but that he would be home later. Defendant came home between 6:30 and 7:00 p. m. and left again before LeBeau arrived about 7:30.

LeBeau and Eva bought a six-pack of beer and returned to the apartment. They discussed their marriage and LeBeau gave his daughter her gift. Defendant returned about 9:30 while LeBeau was still at the apartment. The two men went out and bought two more six-packs of beer and drank them. A defense expert testified as to the approximate blood alcohol levels of the three adults at 12:30 a. m.: .22 for LeBeau; .14 for Eva; and .09 for defendant, but was unable to say how any given individual would behave at a particular blood level.

After that time, defendant's and Eva's version of the facts diverge. Both testified at trial, and Eva gave a series of differing versions of the events, both before and after the trial.

Defendant testified that he and LeBeau were friendly when he returned. LeBeau was drinking heavily and began to pressure defendant to marry Eva. LeBeau then made a vulgar comment about having Eva any time that he wanted and ordered defendant to leave. Defendant refused, saying "If anybody leaves the house it's going to be you, punk." Defendant and LeBeau began to argue, with LeBeau yelling about defendant marrying Eva and child support. After defendant said that he was not going to marry Eva because he "wasn't a sucker," LeBeau grabbed a knife from the kitchen table and said he was going to kill defendant for that comment. Defendant testified that he did not take his knife out until LeBeau shoved him and Eva got between the two men.

Defendant testified that he was afraid and, therefore, he began to stab LeBeau because the latter would neither drop the knife nor leave the house. They struggled in the living room and then towards the kitchen. Defendant held LeBeau's right arm but kept stabbing because LeBeau would not drop his knife. Defendant finally backed up and ran to look for Eva who had fled with Jackie. He ran outside and lost his knife somewhere. Defendant denied seeing LeBeau's body when he ran outside. Defendant walked up to the police when he saw them while returning to the house.

Eva's version of the above events differed significantly from that of defendant. In her initial account during two interviews at Kaiser Hospital 2 with Sergeant Leo Trombley of the Santa Clara Sheriff's Department on February 13 and 14, she stated that LeBeau made a comment during the evening that if defendant mistreated Eva, he would answer to LeBeau. Defendant then went to the bathroom and returned with a "switchblade"; defendant also took a steak knife from a kitchen drawer and threw it at LeBeau's feet saying "Use this, you son of a bitch." LeBeau did not pick up the knife but said, "John, don't do that. If you want me to leave, I'll leave." LeBeau backed out of the house and Eva heard him say "John, don't do that, John. Oh, my God." Eva did not mention any other argument or altercation between the two men. Her preliminary hearing testimony in March 1979 was essentially the same as her two statements immediately after the event.

In April 1979, after the preliminary hearing, Eva was interviewed again by Trombley. She mentioned the argument for the first time and indicated a disagreement over defendant's unwillingness to marry her and the child support payments, as well as LeBeau's vulgar comments. Eva stated that after LeBeau shoved defendant "or something," defendant took out his knife and somehow got the other knife and threw it at LeBeau's feet. She did not see LeBeau pick it up. She also did not see the stabbing but heard LeBeau say "John, don't. Oh, my God." She fled with Jackie and yelled for help.

At trial, Eva's testimony included the argument over the marriage and child support. She described LeBeau's sexual innuendos and stated that he was the only one who had raised his voice. After LeBeau shoved him, defendant pulled his knife out of his pocket. LeBeau agreed to leave. Eva saw LeBeau backing out of the door with defendant following him and heard LeBeau say "Don't do that, John." Eva then heard someone say "Oh, my God."

At trial, Eva claimed that because she was angry with defendant, she had lied in her initial interview about defendant getting another knife and throwing it at LeBeau's feet. She indicated that LeBeau had something in his hand as he was backing out of the door, but she could not see what it was; it might have been the steak knife that was on the table. She still loved defendant, talked to him every night in jail, and had taken her daughter to visit him. Eva denied that defendant has asked her to change her story. Trombley testified that Eva exhibited no hostility towards defendant during the initial February interviews at the hospital.

The next door neighbors, Jeanette and Nicholas Pennucci also testified. Mrs. Pennucci was awakened by the sound of people fighting and heard someone yell "Stop it Joe. For God's sake, it's enough." Mr. Pennucci testified that his wife woke him up as she heard people fighting. When he looked into the driveway of 491 Arletta, he saw a body and also saw a man run out of the apartment past the body and run down the street. Mr. Pennucci heard Eva's calls for help and called the police.

Another neighbor, Mrs. Betty Monk, testified that she was in her kitchen when she heard loud voices and an argument. She looked out her window and saw the shadows of two people, then of a third, come out of defendant's house; someone said "Oh, John" or "No, John" and the two men moved towards the carport. The taller one was being punched or struck at by the shorter one and seemed wobbly. The taller man did not throw any punches or offer any resistance. The taller man slid down the fence and then picked himself up. When he stood up, the attack resumed, although he had offered no resistance. When the taller man fell, the shorter one ran away. She saw a body lying on the ground in a great deal of blood.

The authorities arrived at approximately 12:40 a. m. Deputy Frank Roman saw the victim lying on his right side in a large pool of blood, bleeding profusely. He was unconscious but groaning. There was nothing in his hands; no weapons were found in his vicinity. Just outside the front door was a knife with a bent blade. A small amount of blood was on the blade. There was some blood on the gate outside and a considerable amount inside the front door and on the front door.

Deputy Roy Froom was the first police officer to meet defendant when he approached them after the killing. Defenda...

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    • United States
    • California Supreme Court
    • December 29, 1983
    ...three related, yet analytically distinct, contentions which could be advanced in support of that claim. (People v. Pacheco (1981) 116 Cal.App.3d 617, 628, 172 Cal.Rptr. 269; see generally Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301.) First, a defendant could......
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