People v. Salazar

• Decision Date: 09 November 1977
• Docket Number: Cr. 29774
• Citation: 141 Cal.Rptr. 753,74 Cal.App.3d 875
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Timothy SALAZAR, Defendant and Appellant.

Page 753

141 Cal.Rptr. 753

74 Cal.App.3d 875

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Timothy SALAZAR, Defendant and Appellant.

Cr. 29774.

Court of Appeal, Second District, Division 5, California.

Nov. 9, 1977.

Rehearing Denied Jan. 5, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, and J. Courtney Shevelson, Deputy State Public Defender, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and David R. Chaffee, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

After a jury trial appellant was convicted of first degree murder and was sentenced to state prison.

Sixteen-year-old Richard Burton lived with his mother in an apartment on Lubec Street in Bell Gardens. They kept a .22 caliber revolver with a six-inch barrel and wooden handle in the house, underneath his mother's bed. Richard was acquainted with appellant, who was 18. On the evening of April 26, 1976, Richard showed the gun to appellant.

About 5 p. m. the following day, April 27, Richard and his friend, Rocky Caton, the victim, were at Richard's apartment. Appellant and John Vega, who was 15, were at the front door. When Richard answered the door, appellant asked for the gun. Richard replied that he did not have one. Appellant forced his way through the door and went inside. Richard fell to the couch and Rocky ran to the kitchen. Appellant told Vega to go to the kitchen and bring Rocky back into the living room, which he did. Appellant had a box cutter, a device with a razor blade, in his hand. Appellant held the box cutter over Richard and said he would cut Richard's throat if he did not tell where the gun was. Richard told appellant the gun was under the bed mattress in the master bedroom. Appellant sent Vega to the bedroom and Vega returned with the gun.

Appellant said, "Where is the gun?" Vega replied, "I have it; let's go." Appellant demanded to see the gun and Vega gave it to him. Appellant told Richard and Rocky to go into the bedroom and open a window. Appellant said that they should tell a story that some Mexican with long brown hair and a mustache came in and that they had seen him get away in a red, candy-apple Chevy. Richard said he would tell the story. Rocky also said he would tell the story. Appellant knocked Rocky to the bed and said, "You better."

They all returned to the living room. Appellant laid Richard down on the couch and started to tape his hands with some nearby packing tape. Appellant kept breaking the tape and finally told Vega to tape Richard. Vega said, "We've got the gun, let's go," but appellant said, "Just tape him." Appellant then instructed Vega to tape Rocky. Rocky was sitting on the couch and said, "Please don't . . . tape me."

With the gun in his right hand, appellant brought the gun down from his own head Richard buried his head in the couch and said, "You shot him." Appellant slapped Rocky and said, "Wake up," but Rocky did not react. Appellant said to Richard, "Shut up before I shoot you." Richard shut up. Vega said, "Don't shoot him. You already shot one. You have got the gun. Let's go." Appellant said, "I better shoot him because he will tell." Richard said that he wouldn't tell. Appellant repeated the direction to tell the story about the Mexican, and appellant and Vega left.

level, extended his arm, pointed the gun at Rocky's head and shot him. Richard observed Rocky's head drop down and blood splattered at Richard's feet. Rocky died of the gunshot wound to the head.

Richard inferred that appellant was under the influence of a drug because appellant was mumbling and asked Richard if he wanted any "reds."

Frank Escalante, age 16, lived in Bell Gardens and knew appellant. He saw appellant in front of Escalante's house twice on April 27. The second time was about an hour after the first, when it was almost dark outside. Vega had just left appellant's company when Escalante saw him the second time. Appellant ran up to Escalante, grabbed him by the shirt, and said, "I shot him I shot a boy. But I didn't mean to. He just kept on fucking with me and fucking with me." Appellant showed Escalante a revolver with a six-inch barrel which he took out of the back of his pants. Escalante told appellant to give him the gun but appellant would not. Escalante drove appellant to Salt Lake Park in Huntington Park and told him to throw the gun away. When Escalante dropped appellant off at the park, appellant said thanks and took off.

Appellant sometimes lived with his brother David in Bell Gardens and sometimes with his mother in Huntington Park. After talking to Richard, Officer Gardner, who was familiar with appellant, and Officer Apodaca went to Huntington Park to look for appellant. When the officers arrived in their unmarked vehicle at appellant's mother's house, Gardner observed appellant in the driveway, got out, pointed his revolver at appellant and said, "Police officers, Rocky, hold it. Put your hands up and spread your legs." Instead of complying, appellant ran away. He attempted to climb over a wall but failed. He ran toward the doorway and when it appeared that he might be reaching for a weapon Officer Apodaca shot him. The door came open and appellant fell inside, to the floor of his own living room. The officers and appellant's mother, sister, and stepfather came into the living room. Appellant looked up and said, "Tell them I have been with you all afternoon. I have been here with you all afternoon. I haven't done nothing wrong."

Appellant and his mother testified to an alibi defense. Appellant denied that he went to Richard's house on the 27th. Appellant was at his brother's until 11:30 a. m., at his sister's until 1 p. m., and at his mother's in Huntington Park until 7 p. m. Appellant took eight reds right after 1 p. m. when he left his sister's, and he was under the influence. He made a short trip from his mother's to a store and drank two beers. He was going to make another trip to the store when he saw Officer Gardner. He had had unpleasant relations with Officer Gardner before, and he ran because he thought Gardner was going to kill him. He did not tell Frank Escalante that he shot a kid.

CONTENTIONS

Appellant contends (1) that the court should have instructed that the testimony of an accomplice should be viewed with distrust; (2) that the court's instructions relating to diminished capacity and intoxication were inadequate; (3) that the court erred in instructing on premeditated first degree murder because there was insufficient evidence to support such an instruction; and (4) that the court made inadequate inquiries of appellant as to the reasons for appellant's expressed dissatisfaction with his counsel, and should have advised appellant of the right to self-representation.

ACCOMPLICE INSTRUCTIONS

John Vega testified as a prosecution witness. The trial court instructed the jury that Vega was an accomplice as a matter of law, that the testimony of an accomplice must be corroborated, and on the sufficiency of evidence to corroborate an accomplice. Appellant complains that the court also should have instructed that the testimony of an accomplice should be viewed with distrust. (People v. Cuellar, 262 Cal.App.2d 766, 770, 68 Cal.Rptr. 846.) Assuming this was error, it does not warrant reversal because it is not reasonably probable a result more favorable to appellant would have been reached had such instruction been given. (People v. Gordon, 10 Cal.3d 460, 470-473, 110 Cal.Rptr. 906, 516 P.2d 298.) All the essential elements of the crime were provided in detail by the testimony of Richard Burton. The other highly incriminating evidence in the case also came from witnesses other than Vega: Appellant's admission to Frank Escalante that he had shot someone and his showing of the murder weapon to Escalante; appellant's flight from the police; and appellant's attempt upon apprehension to tell his mother to give him an alibi. Vega's testimony merely corroborated an already strong case.

Furthermore, this is not a case where the court failed to give any instructions on "the law of accomplices" (e. g., People v. Benjamin, 40 Cal.App.3d 1035, 1043, 115 Cal.Rptr. 668, cited by appellant). The court did instruct that "(a) conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense." Thus the jury was in fact informed that the testimony of an accomplice is not accepted "at face value . . . upon the same standard as that applied to other witnesses." (People v. Gordon, supra, 10 Cal.3d at p. 471, 110 Cal.Rptr. at p. 912, 516 P.2d at p. 304.) Failure to give an additional instruction on viewing such testimony with distrust was clearly harmless. (Id., at pp. 471-472, 110 Cal.Rptr. 906, 516 P.2d 298.)

INSTRUCTIONS ON DIMINISHED CAPACITY AND INTOXICATION

Richard Burton, John Vega, appellant, and appellant's mother all testified that appellant was under the influence of drugs. Appellant also mentioned he had drunk two 16-ounce beers. Appellant contends the court inadequately instructed the jury on drug intoxication and diminished capacity as it affected appellant's specific intent to commit the underlying felonies of burglary and robbery necessary to sustain a finding of first degree murder on a felony murder theory. The instructions appellant now claims should have been given were not requested by appellant in the trial court. Analysis of appellant's contentions shows that the court adequately instructed the jury on the subject and that this case involves the principle that, "(w)here instructions are correct so far as they go and the only objection is they are inadequate by reason of generality, indefiniteness,...