People v. Somersall
| Decision Date | 30 September 1999 |
| Docket Number | No. A081134.,A081134. |
| Citation | 75 Cal.App.4th 657,89 Cal.Rptr.2d 449 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Leo Adam SOMERSALL, Defendant and Appellant. In re Leo Adam Somersall on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
Jeremy Friedlander, Office of the Attorney General, First District Appellate Project, for Respondent.
In No. A081134, Leo Adam Somersall timely appeals from a judgment of conviction, after a jury trial, of the second degree murder of Rigoberto Enrique Garcia (Garcia), and the robbery and assault by means of force likely to produce great bodily injury of Israel Garcia Colchado (Colchado). Appellant contends that the judgment must be reversed because: the jury engaged in prejudicial misconduct; a videotaped statement to the police in which he admitted stabbing Garcia was the tainted fruit of an earlier statement that was found to have been involuntary and obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda); his arraignment was improperly delayed in order to give the police time to obtain the videotaped statement with proper Miranda warnings; a purported confession by appellant that he personally robbed Colchado was erroneously admitted for the first time on rebuttal; and the trial court improperly excluded exculpatory evidence and erred in its instructions to the jury. In particular, citing our Supreme Court's recent decision in People v. Mendoza (1998) 18 Cal.4th 1114, 77 Cal.Rptr.2d 428, 959 P.2d 735 (Mendoza), appellant contends it was error to instruct the jury on an aiding and abetting theory of liability as to the aggravated assault upon Colchado, along with other instructions—emphasized by the prosecutor in closing argument—all of which clearly suggest that voluntary intoxication could not be considered with respect to the assault charge in this case. Somersall also contends that the case should be remanded for resentencing because the trial court denied a motion to dismiss a prior "strike" based on erroneous information.
In a petition for habeas corpus, No. A086816, Somersall presents additional arguments relating to his claim that his arraignment was improperly delayed so detectives could obtain a properly cautioned confession. In addition, he claims his attorney in a 1993 prosecution rendered ineffective assistance by advising him to plead guilty to two "serious or violent felonies" arising out of an assault with a deadly weapon and a battery with great bodily injury upon two separate victims in what he describes as a "continuous incident." He also raises claims under the ex post facto and due process clauses of the state and federal Constitutions based on his prior guilty plea. Finally, he makes a claim of factual innocence of the murder of Garcia, asserting that a separately charged co-defendant was solely responsible for Garcia's death.
We conclude the trial court properly rejected appellant's claim that his videotaped statement to the police was the tainted fruit of the earlier, suppressed statement. We further conclude that appellant has not, on the present record, established grounds for suppression of his videotaped statement based on the delayed arraignment in this case. Nor has he presented any claim of error warranting reversal as to the robbery of Colchado. However, we agree with appellant that the People have not overcome the presumption of prejudice arising from the jury misconduct in this case, insofar as it affected the verdict on count one for the murder of Garcia. Indeed, in a series of depositions of the twelve jurors, the trial court adduced evidence clearly establishing that at least one holdout juror was persuaded to vote for conviction on a theory of second degree murder, instead of some form of manslaughter, based upon an erroneous definition of "malice" found in a legal dictionary that was provided to the jury by the bailiff without the knowledge or approval of the trial court. We also agree that the conviction on count three, for the aggravated assault upon Colchado, must be reversed because of instructional error of the type identified in Mendoza.
Accordingly, we will affirm the judgment of conviction as to count two (for the robbery of Colchado), reverse the judgment of conviction as to counts one and three, vacate the sentence imposed,1 and remand for further proceedings consistent with this opinion. Given our decision on his appeal, we need not reach the issues raised in appellant's habeas corpus petition, No. A086816, and the petition is, therefore, denied as moot.
Based on the evidence set forth below, Somersall was found guilty of the robbery and assault by means of force likely to produce great bodily injury of Colchado, and the second degree murder of Garcia, all of which occurred on September 22, 1996.
Shortly before midnight on September 21, 1996,2 Garcia and Colchado were walking into the town of Hopland to buy beer, accompanied by two friends and fellow farm laborers, Timoteo Lopez (Lopez) and Fernando Gutierrez (Gutierrez). The four men, who spoke little or no English, chose a route along railroad tracks just to the west of a cluster of cabins.
Appellant, who was 31 years old at the time, was staying in one of the cabins (No. 5) with his 30-year-old sister, Charlene Somersall, and her three small children. Also residing in the cabin were two teenagers, 17-year-old Kenny Faber and 16-year-old Kimberly Faber. Also present on the night of September 21 were two other teenaged girls, 15-year-old Veronica Faber and 16-year-old Jennifer Faber, and another of appellant's sisters, Karen Casillas. Jennifer and Veronica were cousins of Kenny and Kimberly,3 and lived in cabin No. 2.
Veronica testified that appellant was on the porch of cabin No. 5 with her, Kimberly, Kenny, and Jennifer, as the four farm laborers were walking along the railroad tracks. Charlene and her children were asleep inside the cabin. People were drinking Budweiser beer near the porch. Appellant was not wearing a shirt. Although Veronica gave conflicting testimony about how the incident began, she told the police that appellant wanted to get the attention of the four men so he and his companions could "jack" them, i.e., rob them for beer money. At appellant's suggestion, Veronica whistled to the men.
The first of the men to approach was Colchado, who was wearing a white cowboy hat. Initially, the other three men remained behind, stopping on the other side of a ditch between the railroad tracks and the cabins. Veronica and Kenny walked over toward the other three men and asked if they were going to come over and join their friends. Veronica spoke in English, and the men did not appear to understand her. At that point, Karen was standing by Colchado. Karen said she was going to the store, and asked Veronica to go with her. Veronica agreed and she, Karen, and Colchado began walking to the store. As they left, one of the other men was coming across the ditch, leaving the other two behind. The man who tried to cross fell in, and was just sitting there. Gutierrez testified that the man who fell was Garcia. Gutierrez and Lopez crossed later.
After Karen, Veronica, and Colchado left the area, a fight ensued between appellant and Gutierrez and, possibly, others. Gutierrez testified that the fight began after one of the women started talking to him and Lopez, in a tone suggesting she wanted them to leave. Garcia was not far away from Gutierrez. The woman looked drunk or drugged. Gutierrez denied that he or any of the other men made any sexual advances toward the woman. Gutierrez said neither he nor Lopez was armed.
According to Gutierrez, a well-formed, slightly heavy man appeared from behind the house. The man was not wearing a shirt and was slightly shorter than Gutierrez, who is five feet, five inches tall. Gutierrez said appellant looked like this man. A second male—who was thinner and taller, with longer hair, and who was wearing a blue shirt—was also present.4 Gutierrez approached appellant and extended his hand in greeting. Instead of shaking hands, appellant hit Gutierrez in the head. The two fell to the ground and struggled for two or three minutes, with appellant on top of Gutierrez. Suddenly, appellant got up and ran toward the fence leaving behind Gutierrez, who was bruised but not bleeding. Gutierrez did not see Garcia at that time, and Lopez had by then run away. Gutierrez saw no other fighting before or after this, and saw no one with a knife. Gutierrez said this altercation took place near a tree in front of an apartment, apparently, cabin No. 4. Appellant claimed the fight with Gutierrez occurred near cabin No. 5.
The evidence of what happened next was in sharp conflict. In a statement to police on September 24, appellant said that Garcia ran away toward a school bus just west of a fence along Highway 101. Appellant went after Garcia, and kicked him in the face. The two "might've had a few rounds." Kenny and someone else jumped on Garcia, but appellant did not remember who the other man was. Kenny might have been at the bus, but appellant did not remember what happened there. Appellant may have kicked Garcia several times near the fence.
During his September 24 interview with the police, appellant admitted stabbing Garcia, at first saying he "stuck" Garcia near his cabin. Later in the interview, however, appellant said he stabbed Garcia "[a]t least like two or three" times "in the upper right shoulder chest area," and then went back to his cabin while Garcia was lying near the fence. Appellant said he did not remember how "we" got to the fence. He claimed he, Kenny, and Garcia were alone near the bus, and that he did not hear anyone telling him to stop. Appellant said...
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