People v. Rodriguez

• Decision Date: 25 February 1999
• Docket Number: No. S066848,S066848
• Citation: 82 Cal.Rptr.2d 413,971 P.2d 618,20 Cal.4th 1
• Court: California Supreme Court
• Parties: , 971 P.2d 618, 1999 Daily Journal D.A.R. 1837 The PEOPLE, Plaintiff and Respondent, v. Carlos RODRIGUEZ, Defendant and Appellant

Page 413

82 Cal.Rptr.2d 413

20 Cal.4th 1, 971 P.2d 618, 1999 Daily Journal D.A.R. 1837

The PEOPLE, Plaintiff and Respondent, v. Carlos RODRIGUEZ, Defendant and Appellant.

No. S066848.

Supreme Court of California

Feb. 25, 1999.

[20 Cal.4th 4] [971 P.2d 619] Richard A. Levy, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Marc E. Turchin, Kenneth C. Byrne, Susan D. Martynec, and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

Defendant was convicted of murder (Pen.Code, § 187, subd. (a); further statutory references are to this code unless otherwise indicated) and assault with a firearm (§ 245, subd. (a)(2)). The jury found defendant had used a firearm in the commission of both offenses. (§ 12022.5, subd. (a).) Defendant was sentenced to serve a total term of 42 years 4 months to life in state prison.

A divided Court of Appeal reversed defendant's conviction of both offenses. The majority concluded the trial court had erred prejudicially by excluding certain evidence offered to impeach the testimony of the eyewitness to the murder; it further held the record contained insufficient evidence the gun defendant used in the assault was loaded. In light of its disposition, the majority found it unnecessary to address certain other contentions defendant raised on appeal. The dissenting justice in the Court of Appeal disagreed with the majority that reversal of either conviction was warranted. We granted review, limited to the following issues: (1) whether the trial court erroneously excluded certain defense evidence offered for impeachment; and (2) whether there was sufficient evidence the gun was loaded to support the conviction for assault with a firearm.

As will appear, we conclude the Court of Appeal erred in reversing both the murder and the assault convictions. We therefore reverse the judgment of the Court of Appeal and remand the case to enable that court to address defendant's other appellate contentions.

FACTS

Prosecution's evidence relating to the murder charge

Tommy Merritt testified he lived in a five-story apartment building at 1830 North Cherokee in Hollywood. The neighborhood was claimed by the 18th Street gang, and residents often heard gunshots. Concerned the street was unsafe, Merritt had obtained permission from one of the managers of his apartment building to walk his dog on the roof. While doing so, about 1:30 a.m. on October 11, 1995, Merritt sat on the ledge of the roof looking into the apartment of a female impersonator (drag queen) on the opposite side of the street. On the street below were several other drag queens, pedestrians, and some traffic. Victim Valerie Sanchez, whom Merritt knew casually, was one of the pedestrians.

A car that was driving slowly and circling the block drew Merritt's attention. The right front passenger was leaning out of the window, heckling the drag queens. Merritt recognized the heckler as defendant, whom he had seen in the area many times over the previous three or four weeks. Defendant had a thick mustache, a goatee, and a mark on his left cheek. Although Merritt could Merritt apparently turned to look at something else, but suddenly heard, from the vicinity of the car, a shout in Spanish (which he did not understand) and then a gunshot. He saw defendant leaning out of the passenger window, farther than he had been before, and cupping his hands as if he were holding something. Although Merritt did not actually see a gun, he did see two white flashes in front of defendant's hands and heard additional gunshots. Merritt grabbed his dog and lay down on the roof. He heard a car speeding away. After waiting a few seconds, he peered out into the street again and saw the victim staggering near the main gate of the building's parking lot. Merritt took his dog and hurried back to his apartment. Out of fear for his safety, he did not contact the police.

[971 P.2d 620] not tell, from his vantage point, that the mark on defendant's cheek was the number 18, he knew from recent contact with defendant what [20 Cal.4th 6] the mark was. Merritt also knew the number stood for the 18th Street gang, which controlled the neighborhood. The street was well lit that night with high-intensity security lights, and Merritt had no difficulty recognizing defendant. A police witness confirmed that the murder scene was well lit.

The victim, who had suffered a chest wound, died several hours later at a hospital.

Police officers investigating the crime scene shortly after the shooting recovered five spent .380-caliber semiautomatic handgun bullet casings from the middle of the street. At approximately the same time, an officer, in response to a radio call, went to a location approximately three blocks away from the scene of the shooting, where he found Anthony Gutierrez, bleeding from an apparent gunshot wound to his left hand, standing near a pay telephone. Gutierrez, nicknamed "Bullet," was known to be affiliated with the 18th Street gang, as was defendant, whose moniker was "Beto." Later on the morning of October 11, when Detective Pelletier interviewed Gutierrez, he noticed a large cast or bandage on his left forearm.

Prosecution's evidence regarding the assault charge

The following afternoon, while Merritt was walking his dog on the street near his apartment, a police officer called him over to ask questions about a U-Haul truck that was parked nearby. Merritt answered the questions but, out of fear for his safety, did not volunteer information about the previous day's shooting. Later that afternoon, a member of the 18th Street gang, whose moniker was "Pelon," approached Merritt and threatened to "kill [him] or kick [his] butt" if Merritt talked to the police. Merritt began to walk back toward his apartment when he saw defendant and Gutierrez leaving the building. Merritt approached Gutierrez, whom he knew to be an 18th Street gang member, to ask him to tell Pelon to leave him alone and to assure Gutierrez he was not talking to the police about the shooting. Before Merritt could do so, defendant blocked his path, telling him he had nothing to ask Gutierrez and that he should return to his apartment. Merritt, however, continued to follow as defendant and Gutierrez walked away. Defendant raised his shirt, revealing a gun in his waistband. When Merritt remained standing in place, defendant took out his gun, put the barrel just under Merritt's chin, and told him to keep quiet because "I could do to you what I did to them." Frightened, Merritt returned to his apartment.

By the next day, Merritt decided it was time to "quit keeping my mouth shut" and "start at home to clean up the neighborhood." Accordingly, he contacted the police and told them about the shooting and the subsequent assault on him. He identified defendant in a "six-pack" photo array, and did so again at the preliminary hearing and during trial.

Defense evidence

Defendant mounted a two-pronged defense to the murder charge, attempting both to establish he was not in the car from which the shots were fired and to cast doubt on Merritt's eyewitness testimony by showing Merritt could not have seen all that he claimed to have seen from the roof of the apartment building.

Anthony "Bullet" Gutierrez testified to the following effect. He was affiliated with the 18th Street gang and, at the time relevant to this case, lived with his girlfriend Yolanda at 1830 North Cherokee in Hollywood (i.e., in the same building as Merritt). Defendant lived across the street with the victim, Valerie Sanchez, and another person, nicknamed "Cuba." Before the homicide, in the early morning hours of October 11, 1995, Gutierrez and defendant had gone to the Studio, a restaurant on Hollywood Boulevard at the corner of Cherokee, a short distance from where they both lived. About 1:20 a.m., they left the Studio and walked toward their residences. Various drag queens who regularly frequented the area were on the street. Sanchez was talking with a friend across the street from Gutierrez and defendant. She greeted them, crossed the street, came up behind them, and asked for a cigarette. As Gutierrez turned to give her a cigarette, shots rang out from somewhere behind him. The first shot hit Gutierrez; he felt the second shot pass by him and shatter a beer bottle in his hand. On the third shot, Gutierrez turned around and saw someone firing at him and his companions from outside a small, four-door Sentra-type car. Gutierrez and defendant dropped to the ground against a car. There were a total of five or six shots. Gutierrez noticed his hand was bleeding and heard Sanchez call to him and defendant. Gutierrez briefly went to the apartment of a neighbor, Tony Al-Alusi, and then walked a half block to a car belonging to his friend Monica, who drove him to the corner of Cahuenga and Yucca, where some other friends were located. He began to pass out; someone called an ambulance. Gutierrez gave police officers who arrived at the scene an incomplete explanation of how he came to be there, testifying that, because they were "harassing" him, he responded by "talking crap" to them.

After being treated at the hospital, Gutierrez was released about 5:30 a.m. and returned home to sleep. Later that day, he was awakened by police officers, who handcuffed him and transported him to the police station. There, Detective Pelletier interviewed him. Because Gutierrez did not like the way he was being treated, he was uncooperative.

The following day, October 12, Gutierrez slept until 5 or 6 p.m. He did not go outside during the daylight hours, did not leave the building with defendant, and did not see Merritt. Gutierrez went out in the evening and was "pretty sure" he saw defendant at that time, but he did not see him assault Merritt. Gutierrez...