People v. Pena

• Decision Date: 31 January 1984
• Docket Number: 43803,Cr. 42546
• Citation: 198 Cal.Rptr. 819,151 Cal.App.3d 462
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard PENA, Defendant and Appellant. In re Richard PENA, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 819

198 Cal.Rptr. 819

151 Cal.App.3d 462

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard PENA, Defendant and Appellant In re Richard PENA, on Habeas Corpus.

Cr. 42546, 43803.

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

Jan. 31, 1984.

Hearing Denied May 2, 1984.

James A. Goldstein, Encino, for defendant and appellant.

John K. Van deKamp, Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

SPENCER, Presiding Justice.

Defendant Richard Pena (Pena) appeals from a judgment of conviction and petitions for a writ of habeas corpus on the same judgment. Defendant was originally charged by information with murder in violation of section 187 of the Penal Code and with use of a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).

Following a jury trial, defendant was convicted of voluntary manslaughter in violation of Penal Code section 192.1; the jury also found true the allegation defendant

had personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).

STATEMENT OF FACTS

Based upon the testimony of six witnesses, the People established that Frank Ambrosio (Ambrosio) had entered the bar area of the Mexican Village Restaurant on February 24, 1978, sometime between 10:00 and 10:30 p.m. He walked at a normal pace toward defendant and a group of men who were standing at the bar; defendant stood with his back toward the bar. Prior to Ambrosio's entry, the men had glanced repeatedly toward the door. Ambrosio walked with his hands at his sides; he was smiling. He patted one of the men who had been watching the door. Ambrosio and defendant appeared to be talking. A loud sound was heard; Ambrosio fell. The entire incident from the time Ambrosio entered the bar until the shooting took between 30 and 45 seconds.

None of the witnesses observed any violence other than the shooting. Prior thereto, defendant was heard to say to Ambrosio, "Don't say anymore. Don't say anymore." Defendant was seen holding a gun and a "black-like business card case."

Abel Olivares (Olivares), owner of the Mexican Village restaurant, testified defendant had been in the restaurant to settle his account earlier in the evening; he visited the restaurant approximately twice per month. Defendant returned with friends at approximately 9:00 p.m. Olivares was in the dining room at 10:30 p.m.; he entered the bar area after hearing a shot. He removed a gun from defendant's hands, put it on the floor and then devoted 10 to 20 seconds to Ambrosio's care. When Olivares looked up, defendant and his friends had departed.

Abel Armas, Captain of Police, Los Angeles Police Department, was dining in the Mexican Village the night Ambrosio was shot. He heard the shot and observed defendant "walk quickly away" from the area. Defendant exited from the kitchen area. Although he did not appear to be limping, defendant was "slightly hunched." Once outside the restaurant, defendant was joined by another man; defendant used a key to open the door of a blue Lincoln Continental. Both men entered the car; they drove off rapidly.

Lieutenant Robert Kurowski, assigned to the Rampart Division of the Los Angeles Police Department, arrived at the restaurant shortly after the shooting. He found the deceased on the floor with a revolver within a foot or two of his body. The weapon, a Smith and Wesson .44 Magnum, contained five live and one expended round of Magnum hollow point ammunition.

Expert testimony established defendant stood 5'7 1/2"' tall and weighed approximately 160 pounds; Ambrosio was 6'1"' tall and weighed 241 pounds on the day of his death. According to Arleigh McCree, a weapons expert, Pena's gun had been fired from inside its zippered case.

DEFENSE

Richard Pena owned an auto body shop and also worked as an investigator for a law firm; he had known Frank Ambrosio, Jr. for some time, had travelled to Costa Rica with Ambrosio and had been best man at Ambrosio's wedding. Pena considered Ambrosio a violent person. He had seen Ambrosio become angry at two young girls and "beat the hell out of them bad"; Ambrosio "kicked them, threw them on the floor, hit them with a bottle of Chivas Regal Scotch." Although Pena attempted to stop the beating, he was unable to do so.

Ambrosio told Pena he had committed "a few armed robberies and was charged with assault with a deadly weapon," that he had killed someone while out joy-riding and that "he almost killed a black man because he was talking to a white waitress...." In addition, Pena was aware the law firm for which he worked had represented Ambrosio on a charge of assault with a deadly weapon. While at the firm's office, Pena heard Ambrosio say "that he beat up two guys at the Candelarea. Sent them to the hospital." On several occasions, Pena saw Defendant hired employees who had previously worked for Ambrosio to work for him at his auto body shop; he had heard Ambrosio was angered by his action. Isaac Perez, Pena's brother-in-law, was told Ambrosio claimed Pena had stabbed him [Ambrosio] in the back and he was going to get even one day.

Ambrosio carrying a weapon; he was aware the Cuban community considered Ambrosio a "bad cat."

In 1977, Ambrosio called Pena and asked him to guarantee bail bonds for two individuals; Pena did so. Neither individual appeared in court. The bail bondsperson called and informed Pena he would have to pay for the non-appearances. Defendant called Ambrosio. He told Ambrosio to pay the bonds, but Ambrosio refused, saying "I [sic] not going to pay for it. You pay for it, you son-of-a-bitch. If you want the money, go and get a gun and come down and get your money. Better yet, don't come down. I am going to go out and look for you."

Pena was stunned. He stayed home for three days; afterwards he carried a .44 Magnum revolver wherever he went. He was frightened; he knew "what [Ambrosio] was capable of doing." Pena was aware that Ambrosio was a karate expert.

One of his employees told him, "I know what happened. Frank Dennis told me. You better start carrying a gun. Don't let him get close to you."

Ambrosio called Pena and said, "Be sure to look behind every time you turn around." When he heard that, Pena felt "shaky and my stomach cramped."

Jesse Halpern (Jesse), Pena's attorney/employer, had known Pena for approximately 12 years. On February 23 or 24, Pena arrived at the law office with a satchel containing his gun. Pena explained he was carrying it because Ambrosio had threatened his life; he took the threat seriously and felt he had to carry the gun for protection. Pena appeared "quite upset." He told Jesse "Ambrosio knew where he lived, knew where he worked, knew where he went and he didn't feel that there was any way that he could avoid him."

Russell Halpern (Russell), Pena's other employer, also knew Ambrosio; he was aware Ambrosio had earned a black belt in karate. Russell testified Ambrosio's "reputation was that he would engage in many fights; that he was very violent." After Pena explained his reason for carrying a gun, Russell called Ambrosio; Pena was able to hear the conversation on a speaker phone.

Russell began by saying, "Frank, what's wrong between you and Pena? What's going on?"

Ambrosio answered, "Nothing."

Russell responded, "What do you mean, nothing? He just left the office with a gun in his hands, running. He was going over your place."

After Ambrosio stated, "God, I am not ready for this bastard," Russell explained he was joking. Ambrosio responded, "Well, it doesn't make any difference. Tell the ------ ------ I am ready for him. I am waiting for him." Ambrosio added words to the effect, "I'll be looking for him. So, tell him to be ready."

According to Russell, Ambrosio's voice "would become angrier, more irritated or agitated"; he referred to Pena by using a vulgarity. Pena appeared physically disturbed as he listened to the conversation. He left the law offices and returned to his body shop.

An employee at Pena's body shop attempted to take defendant's gun; Pena said, "I cannot be without a gun. That's my life." The gun was returned to him.

At approximately 9:00 p.m. on February 24, 1978, Pena and friends went to the Mexican Village restaurant; he parked his car in front of the restaurant. Pena sat at barstool number eight; he saw Ambrosio come through the door. Pena had the Magnum in its carrying case; Ambrosio came straight toward Pena and stopped directly in front of him, two or three feet Ambrosio said something like, "You better draw faster than that." Pena believed his life was in danger; he believed Ambrosio had a gun, for he thought Ambrosio carried one at all times. He testified at trial that Ambrosio "attacked me. Came forward." Pena tried to push Ambrosio away; the gun was in Pena's left hand. Pena "pushed him away with both hands." Pena hit him either on the chest or on the forehead; Ambrosio may have kicked Pena. The barstool was knocked over. Pena perceived Ambrosio on top of him; the gun went off against Ambrosio's body.

away. Pena had grabbed the gun; Ambrosio's hands were held in front of him.

Pena testified to the following: He did not intend to kill or maim Ambrosio; he intended only to defend himself. The owner of the restaurant and a busboy ushered Pena out of the restaurant; he got in his car and drove away. Pena called Jesse Halpern; he said he had just shot Ambrosio, "that Ambrosio had come through the door and walked directly towards him and said something to him, and that he had taken the gun out and it had gone off."

Jesse told Pena to meet him at a restaurant across from the Halperns' law office. Russell and Jesse met Pena at the restaurant shortly thereafter. Pena "appeared to be very upset, appeared to be like someone who was in shock." Russell noted Pena was "visibly shaking. Visibly saddened."

Pena stated Frank Ambrosio...