People v. Salazar

• Decision Date: 26 May 2016
• Docket Number: No. S077524.,S077524.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Magdaleno SALAZAR, Defendant and Appellant.

63 Cal.4th 214
371 P.3d 161
202 Cal.Rptr.3d 638

The PEOPLE, Plaintiff and Respondent
v.
Magdaleno SALAZAR, Defendant and Appellant.

No. S077524.

Supreme Court of California

May 26, 2016.

202 Cal.Rptr.3d 647

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jessica K. McGuire, Assistant State Public Defender, Jolie S. Lipsig and Ellen J. Eggers, Deputy State Public Defenders; James S. Thomson and Nicholas J. Seymour, Berkeley, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee, Jaime L. Fuster and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

CORRIGAN, J.

371 P.3d 168

63 Cal.4th 221

A jury convicted defendant Magdaleno Salazar of the first degree murder of Enrique Guevara, with personal use of a firearm.¹ Defendant admitted the truth of a special circumstance allegation that he had a prior murder conviction. After a penalty trial, the jury returned a verdict of death, and the court imposed that sentence. We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

1. Prosecution

Around 2:30 a.m. on July 25, 1993, Kathy Mendez and her friend Cynthia Bonilla were

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at a Jack in the Box restaurant. They met defendant, whom Mendez knew as “Toy,” and Enrique Echeverria, whom she knew as “Rascal.” Mendez, defendant, and Echeverria were all members of the Harpys gang, based in southwest Los Angeles. Defendant drove the four of them to another restaurant, the Yoshinoya Beef Bowl, at the corner of Figueroa and 30th Streets. The Beef Bowl was on the fringe of Harpys territory, and was sometimes frequented by members of other gangs.

Mendez, defendant, and Echeverria were the only Harpys gang members present in the Beef Bowl. Defendant was wearing a white shirt and Echeverria a black one. Mendez heard the men say they needed to “take care of the

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neighborhood,” and should not be “caught slipping.” This meant they intended to control the Beef Bowl as gang territory, and not be caught unaware by rival gang members.

Two other customers testified that they were approached in the Beef Bowl that night and “hit up” by gang members asking where they were from, a way of seeking their gang identification. Arnold Lemus said he was eating with two friends when “some guys came over and they hit us up.” The man doing the talking was wearing a white shirt. Lemus told him that he and his friends were a “party crew,” meaning a group that hung out together and went to parties. The man in the white shirt “thr[ew] out” the name “Harpys,” to which Lemus responded “it was cool, because I didn't have nothing against nobody like that.” Juan Salazar, one of Lemus's companions, had difficulty

202 Cal.Rptr.3d 648

remembering on the witness stand. In a statement to police at the time of the events, he had said that one of the people who approached them was wearing a white shirt and looked like a gang member. At trial, he recalled only that one of the men “hit [Lemus] up,” asking “where we from,” meaning “what neighborhood are you from, what gang.”

While Mendez waited in a line of customers, defendant and Echeverria left the restaurant and stood just outside. As the door opened, Mendez heard defendant tell Echeverria to get the “cuete,” a slang term for a gun. Echeverria retrieved something from the car and put it in his waistband. Mendez then saw a man walk past the Beef Bowl. He was shirtless, had a cast on his leg, and to Mendez he looked like a gang member. Defendant and Echeverria confronted this man in front of the Beef Bowl and began wrestling with him. The front of the restaurant was glass from floor to ceiling. Mendez heard gunshots, and saw defendant shooting in the direction of the café next door, the Au Rendezvous. She threw herself to the floor. There were “a lot of shots,” maybe eight or nine.

When the shooting stopped, Mendez went outside. Defendant was half-carrying Echeverria toward the car. Drops of blood marked their path. Defendant was holding what looked like a 9 millimeter pistol. He helped Echeverria into the car and drove away. Mendez went into the Au Rendezvous, where the man with the cast on his leg was lying face down. There was a lot of blood.

Emilio Antelo was the Beef Bowl security guard. He was standing outside, between the Beef Bowl and the Au Rendezvous, when a car pulled up and parked. A teenaged passenger got out and entered the Beef Bowl. As the driver approached, Antelo prepared to stop him because Beef Bowl policy required customers to wear shirts. Antelo then heard a “metallic sound,” turned, and saw a man cocking a pistol. The gunman walked past Antelo and

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toward the shirtless man. Antelo heard another pistol being cocked, and saw a second gunman approach the shirtless man, who appeared to be unarmed. Both guns were semiautomatic pistols. All three men were Hispanic. The gunmen said something to the other man, which Antelo could not understand. Antelo went inside the Beef Bowl, and heard gunfire. When the shooting stopped, he told the cook to call the police, went outside, and saw the shirtless man on the ground.

A third eyewitness, Patrick Turner, was walking past the Beef Bowl on his way to the Au Rendezvous. Turner had great difficulty recalling the events; most of his testimony was reconstructed from his statement to police at the scene. He saw a small car drive up and park. The passenger went into the

371 P.3d 170

Beef Bowl, but the driver was confronted by two men, one wearing a white shirt and the other a black one. They asked him, “don't I know you from somewhere?” The three began “arguing and scuffling.” They wrestled with each other, moving into the Au Rendezvous. The man in the black shirt stood in the doorway shooting. He and the man in white, who was limping, then went to a car and drove off. The black-shirted man was in the driver's seat.

The victim was Enrique Guevara. His cousin, Giovanni Guevara, was with him on the night of the shooting but had succumbed to a fatal disease by the time of trial. The parties stipulated that Giovanni would have testified as follows: When he and his cousin went to the Beef Bowl, Enrique was not wearing a shirt and had a cast on his leg. Enrique parked the car in front of the Au Rendezvous. As Giovanni entered the Beef Bowl, he saw “two gangster-lookingggg

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g guys.” Moments later he heard gunshots, but did not see who was shooting. He was told his cousin had been shot to death.

Sabino Nungaray, a Harpys gang member, testified that around 3:00 on the morning in question, defendant knocked on his door and told him that Echeverria had been shot. Nungaray went with them to a hospital. As he helped Echeverria into the building, defendant drove away.

Fifteen bullet casings were recovered, both inside and outside the Au Rendezvous. Twelve were 9 millimeter, fired from the same gun, and three were .25 caliber, fired from another weapon. Guevara had been shot nine times, in the chest, the back, the tops of both shoulders, the back of the head, the neck, the back of the upper arm, the forearm, and the hand. There was no soot or stippling around the wounds, indicating that they were inflicted from a distance of greater than two feet. Three of the bullet fragments recovered from Guevara's body were from a 9 millimeter weapon. Six others could not be assigned a caliber.

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2. Defense

Echeverria testified for the defense. He told the jury that he had shot and killed Guevara, had been convicted of the killing, and was currently in prison. He said he and defendant were standing outside the Beef Bowl when a car drove by. The occupants were “staring us down” and “looked like gang-bangers.” Echeverria went to his car, retrieved a 9 millimeter automatic, cocked it, and placed it in his waistband. The other car parked, and the passenger went into the Beef Bowl. Defendant followed him inside. The driver emerged, shirtless, and appeared to be “under the influence.” He produced a .25 caliber automatic and said something to Echeverria including the word “Trece,” which Echeverria took as a gang reference. Then the man began shooting.

Echeverria said he was shot three times. As he reached for his gun, his assailant came closer and shot him three more times. Echeverria grappled with the man and fired all 14 rounds in his clip as the two wrestled. Echeverria fell on top of his attacker in the Au Rendezvous. Defendant appeared and helped him to the car. Echeverria had dropped his gun, which defendant retrieved. Defendant drove to Nungaray's house, then to the hospital.

A defense investigator testified that during an interview in the prosecutor's office shortly before trial, Kathy Mendez had said she did not actually see anyone firing a gun. Someone else had told her who was shooting. On cross-examination, the investigator acknowledged that Mendez said this before she was able to review her earlier statements. Mendez then acknowledged that her memory of the events had been better when she gave those statements.

The parties stipulated that Guevara had gunshot residue particles on his hands. Defendant admitted the special circumstance allegation that he had a prior conviction of first degree murder.

B. Penalty Phase

1. Prosecution

The deputy district attorney who prosecuted defendant for the prior murder testified about the circumstances of that crime. Defendant and two fellow Harpys were visiting friends when they saw a neighbor leave the apartment building. Believing he might be a

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drug dealer who had money, they decided to rob him when he returned. The victim was shot and killed in the hallway. The theory of the prosecution was that defendant was an aider and abettor, not the shooter.

202 Cal.Rptr.3d 650

63 Cal.4th 225

Guevara's mother and sister testified about the impact his death had on them.

2. Defense

Defendant's mother and...