People v. Rios

Decision Date17 January 1985
Docket NumberCr. 15587
Citation210 Cal.Rptr. 271,163 Cal.App.3d 852
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Alfonso Jose RIOS, Defendant and Appellant. D000066.

Ronis, Ronis & Ronis and Jan Edward Ronis, Chula Vista, Patrick Q. Hall, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., and Frederick R. Millar, Jr., and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.

BUTLER, Associate Justice.

Alfonso Jose Rios appeals his jury conviction for first degree murder (Pen.Code, 1 § 187) and true finding of the firearm use allegation ( § 12022.5). Relying upon his Sixth Amendment right to confrontation, Rios contends the admission of hearsay statements of two key witnesses, Torres and Carrillo, under section 1235 of the Evidence Code, as prior inconsistent statements, constituted prejudicial error; that without such evidence there was insufficient corroboration of accomplice Ramos' testimony to satisfy the requirements of section 1111 for conviction; and there was prejudicial prosecutorial misconduct requiring reversal. As we shall explain, we have concluded the admission of the hearsay statements was prejudicial error and there was insufficient corroboration of the accomplice testimony; we therefore reverse the judgment.

I Facts and Procedural History Independent Trial Evidence

On October 25, 1982, Wallace Lord was shot to death in the apartment he occupied with his wife at 2620 "A" Street in the City of San Diego. There were no eyewitnesses to the murder. Evidence at trial established at about 9:00 p.m. that evening, his wife was doing renovation work at another unit in the complex she and Lord owned. She heard three loud bangs and started walking toward their apartment to investigate. She heard her husband say, "Help me, someone please help me." She found Lord lying on his left side slumped against the screen door. She could see blood on his chest. She screamed for someone to call the police. Neighbor Adrian Ruis Gonzalez called for help. Afterwards, he found a yellow baseball cap on the sidewalk in front of his apartment.

Dan Guerriero, who lived next door to the Lords, returned to the apartment complex from a nearby U-Totem at approximately 9:00 p.m. to find Gonzales and Mrs. Lord leaning over Lord. Guerriero ran for the police.

Shortly after 9:00 p.m. the police arrived at the scene and found Lord lying in the doorway of his apartment with a gunshot wound in the chest. In the apartment, the officers found an overturned serving tray, broken glass, spilt milk and a walkman-type radio on the floor; and a .25 caliber casing on a couch near Lord's body. Lord died from a .25 caliber gunshot wound to the chest.

On the night of the shooting, another neighbor, Joyce Duffus, was at her front door four or five houses away from the Lord apartment on "A" Street when she heard gunshots at about 9:00 p.m. She went outside and heard someone running past her house toward 27th Street. Looking in that direction, Ms. Duffus saw a very short person, approximately 5'3"' tall, wearing dark clothing. The person appeared to be a man or boy of Mexican descent with medium to collar-length curly hair. Ms. Duffus did not see his features.

Some days later a .25 caliber casing was found in a woodpile on a patio area behind the Lord apartment. Police criminalists analyzed this casing and found it had been fired from the same weapon as the casing earlier found in the apartment.

Accomplice Testimony of Ramos

After accepting immunity from the prosecution for the murder charge, Joe Ramos testified to his version of the facts tying Rios to the murder.

On October 25, 1982, Ramos met Rios, known as "Squid," and another individual known as "Duende," who was later identified as David Carrillo, at Dave's Market located at 26th and Broadway in San Diego. The three discussed plans to commit a burglary. Rios talked with Carrillo about needing a weapon and the two of them left for approximately 10-15 minutes. When they returned to the store, Carrillo had a gun in his waistband.

Rios and Ramos continued walking toward and then down "A" Street. They talked about burglarizing an empty house. They saw somebody leaving the apartment complex at 2620 "A" Street. Ramos described the individual as a tall, skinny man who walked across "A" Street toward the U-Totem. Rios and Ramos decided to burgle the residence. Rios put a stocking over his head and entered the apartment. Ramos stood watch on the sidewalk in front of the complex. Immediately after Rios entered the apartment, Ramos heard something drop or fall. He became frightened and took off. While he was running away, his yellow baseball cap fell off his head and he heard a gunshot coming from behind him. He thought Rios had been shot. Ramos had not seen Rios with a gun that night; he had not seen Carrillo give Rios the gun.

Two days later, Ramos saw Rios at Dave's Market and asked him "what happened?" "He told me that when he went in there was a man sitting down and that he came up at him. The man grabbed him and they started fighting for the gun and that he shot him and that the gun went off."

The Questioned Testimony

Out of the presence of the jury, the prosecutor sought the testimonies and admissibility of the prior statements of Ramon Torres and David Carrillo for further corroboration Rios committed the murder.

On December 1, 1982, Detectives Dreis and Thwing went to Torres' home. Dreis told Torres he had information Torres knew something about the homicide. Dreis told Torres he would be charged as an accessory unless Torres disclosed what he knew. Torres went willingly to the police station where he told Dreis that three or four days after Lord's death, Rios admitted to him Rios shot Lord during an attempted burglary because he was afraid of being identified. Torres had been called to testify at the preliminary hearing, had refused to answer any questions, was found in criminal contempt, was sentenced to six months in county jail and was in custody at the time of the trial. Torres informed the trial court he would again refuse to answer any questions even though he had no privilege and could face further contempt charges.

The record does not inform as to the circumstances surrounding statements made by Carrillo. On December 3, 1982, at the police station, Carrillo talked with Dreis. Carrillo's statements to Dreis acknowledged his involvement in the case. Carrillo told Dreis he was also known as "Duende" and had been at Dave's Market with Rios and Ramos on October 25, 1982, when the three talked about "doing a job." He said Rios wanted a gun for the job, so he gave Rios his .25 automatic pistol. He split off from Rios and Ramos and heard a shot about five minutes later. Carrillo did not see Rios again for two to four weeks. At that time Carrillo said he told Rios the cops would be looking for him, but Rios said he didn't care. Carrillo had not previously testified and was granted full immunity from prosecution for the burglary and murder. Carrillo, like Torres, refused to answer any questions at trial.

After extensive argument by counsel, the court concluded the refusals to answer by Torres and Carrillo would constitute an evasion or implied denial of their earlier statements to Dreis and ruled the statements admissible as inconsistent statements under Evidence Code section 1235.

Pursuant to the court's evidentiary ruling, the prosecutor, with the jury present, questioned Torres and Carrillo on their statements. Each gave his name, Carrillo added his age, and each thereafter refused to answer any further questions. 2

Detective Dreis was allowed to testify to statements they had given him in December. His testimony tracked the factual context of the prosecutor's questions to Torres and Carrillo.

During closing argument, the prosecution stressed the testimony of Torres and Carrillo as it came out of the mouth of Detective Dreis and told the jurors Torres' testimony corroborated the testimony of Ramos. The trial transcript of the district attorney's questioning of Torres and the testimony of Detective Dreis concerning the police report on Torres was reread to the jury during its deliberations. After further deliberations, the jury convicted Rios of first degree murder.

Rios properly noted his objections to the questioned evidence, moved for mistrial, and asked for a new trial before bringing this appeal.

II

Rios first contends he was denied his constitutional right of confrontation when the trial court admitted the out-of-court statements of Torres and Carrillo; Rios asserts those statements were not inconsistent with any trial testimony of Torres and Carrillo, and were improperly admitted pursuant to Evidence Code section 1235. We agree.

The Sixth Amendment right to confrontation, made applicable to the states through the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923) provides a defendant in a criminal case has a right "to be confronted with the witnesses against the defendant." (See California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597; article 1, section 15 of the California Constitution.) The three-fold purpose of confrontation is (1) to ensure reliability by means of the oath, (2) to expose the witness to the probe of cross-examination, and (3) to permit the trier of fact to weigh the demeanor of the witness. (California v. Green, supra, 399 U.S. at 158, 90 S.Ct. at 1935; see also People v. Green (1971) 3 Cal.3d 981, 989, 92 Cal.Rptr. 494, 479 P.2d 998; People v. Stritzinger (1983) 34 Cal.3d 505, 515, 194 Cal.Rptr. 431, 668 P.2d 738.) However, neither the federal nor California's Confrontation Clause absolutely prohibit use of all...

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