People v. Vasquez
| Decision Date | 29 September 2004 |
| Docket Number | No. B159379.,B159379. |
| Citation | 122 Cal.App.4th 1027,18 Cal.Rptr.3d 848 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Andrew VASQUEZ et al., Defendants and Appellants. |
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
A tagging crew member was stabbed to death in retaliation for having disrespected a female associate of a rival tagging crew. After the first trial ended in a hung jury the second jury convicted the defendants of second-degree murder. The jury also found true the allegations the defendants personally used deadly weapons during the commission of the offense.
The defendants raise a variety of issues on appeal. We find error in failing to recuse the district attorney's office but conclude it was harmless on review after judgment. We conclude the claim of Wheeler1 error lacks merit. We further find any error in admitting, as well as excluding, evidence of gang membership harmless. Finally, we find error in providing an outdated instruction on the intent element for a conviction of voluntary manslaughter also to be harmless, and reject the defendants' other claims of instructional error. Accordingly, we affirm.
P.A.L. and C.N.E. are local tagging crews.2 They are also rivals. Both female and male members of these groups often engaged in after-school fistfights. Appellants, Andrew Vasquez and Anthony Fregoso, are members of P.A.L. The homicide victim in this case was a C.N.E. member.
On March 20, 2000, Cynthia Mendez left Fairfax High School at 3:00 p.m. and walked to the bus stop. Armando Ayala, the victim in this case, approached Cynthia accompanied by two other males. Armando said, "Fuck you, Bitch." One of the young men sprayed Cynthia's face with mace. As she covered her face, the males started hitting her in the head. She saw Armando hit her once before covering her face again. The men hit and kicked Cynthia as many as six or seven times before leaving on the bus. As Armando left he told Cynthia, "Bitch, don't fuck with C.N.E."
Cynthia went to her job at her mother's cell phone and pager business. Later in the day Fregoso came into the store and Cynthia told him about the beating.
The day after Cynthia's beating Armando and several other students were standing outside the main gate of the school after class. The students noticed Vasquez and Fregoso standing on the opposite side of the street across from the school gate. The students noticed them because they were already outside when school let out and were not wearing school uniforms.
Armando left the group of students and started walking toward Fairfax Boulevard. When Armando started walking Fregoso tracked him from across the street. Fregoso then crossed over and positioned himself in front of Armando to cut him off. Vasquez crossed the street diagonally in a sort of crouching stance and approached Armando from behind. The student witnesses testified they saw Vasquez holding either a knife or something in his hand as he approached Armando.
Hideshi Valle was one of the students standing at the school gate. Armando was her best friend. She recognized Vasquez and Fregoso as members of the rival P.A.L. tagging crew. When she saw Vasquez approach with the knife, she yelled out to Armando to "watch out." Almost instantaneously, Armando turned around and sprayed pepper spray as Vasquez in a side-arm motion plunged his knife into Armando's chest.3 The two men fell to the ground with the blow. Fregoso had a baseball bat. He raised his arm as if preparing to hit Armando but then stopped.
Valle ran to Armando's aid. She pulled him up and the two ran back onto the school campus and into the principal's office. Fregoso helped Vasquez up and the two men chased Armando onto the school grounds. Vasquez ran up to the principal's office but then retreated. As Vasquez and Fregoso left the school one of the students, Melissa Garcia, challenged them to a fight by asking, "Where you from." Fregoso yelled out something like "P.A.L.," or "It's a P.A.L. thing." They also said something like "because he hit a girl the day before." Fregoso and Vasquez threw P.A.L. hand signs as they walked down the street away from the school.
Armando died from the stab wound which had severed an artery as it penetrated his lung. The knife wound was one inch wide and four to five inches deep.
An information charged Vasquez and Fregoso with Armando's murder.4 The information alleged Vasquez personally used a knife and Fregoso personally used a deadly weapon (a baseball bat) in the commission of the offense.5
The first jury could not reach a verdict. The court ultimately declared a mistrial.
Separate juries retried Vasquez and Fregoso. Neither testified at their second trial. The separate juries found each of them guilty of second-degree murder. Both juries also found true the allegations they had personally used a deadly weapon in the commission of the offense. The court sentenced both Vasquez and Fregoso to the statutory term of 15-years-to-life, plus an additional year each on the deadly weapon enhancement allegations found true by the juries.
They appeal from the ensuing judgments of conviction.6
Vasquez and Fregoso contend the trial court erred in failing to grant their motion to recuse the district attorney's office.
Judge Norman Shapiro was assigned to oversee the first trial. Just before jury selection defense counsel orally moved to recuse the district attorney's office. Counsel pointed out Vasquez's stepfather had been a prosecutor with the district attorney's office for many years. Vasquez's mother had been an administrator in the same office for then 13 years. Apparently, the district attorney had initially requested the attorney general's office to take over prosecution of the case. When the attorney general declined the request, the district attorney assigned a prosecutor who worked in the same office as Vasquez's parents, but claimed to be unfamiliar with either of them.
Vasquez's counsel initially perceived no discrimination in the district attorney's handling of the case. However, he became concerned after learning of the prosecutor's reasons for declining defense counsels' offer of a bench trial. At the hearing on his oral motion Vasquez's counsel explained the basis for his motion. After discussing the matter with defense counsel for Fregoso he spoke to the prosecutor and proposed waiving jury and having the case heard by the court. The prosecutor's initial response was to state she was willing to take the matter up with her supervisor. However, before discussing it with her supervisor the prosecutor spoke to Vasquez's counsel again. She told him she did not feel comfortable discussing the matter of waiving jury with her supervisor, "because she felt she didn't want to do anything that could make it look like there had been any kind of favor toward Mr. Vasquez because of his father being [] in the district attorney's office."
Vasquez's counsel explained the prosecutor's response was the first indication, and demonstrable evidence, Vasquez was being treated differently from how some other defendant would be treated simply because his stepfather was a prosecutor in the district attorney's office. Counsel opined if the attorney general's office was prosecuting the case, any attorney with that office would have gladly welcomed the opportunity for a bench trial.
The court interjected a few comments before permitting the prosecutor to respond. Judge Shapiro commented, "I like to think of myself as kind of in the middle of things and that I don't favor the district attorney, and that on some close issues, I have ruled for the defense." The court noted he is considered a judge who, "might be inclined to give a little edge on some issues to the defense."
Vasquez's counsel responded if the prosecutor's motive for declining a bench trial was purely the court's inclination to rule for the defense then he would have no problem. He stated it was instead the prosecutor's other motivations and influences which led him to believe the prosecutor was treating Vasquez differently, and all because of his familial connections to the district attorney's office.
In reply, Vasquez's counsel made clear his concern was over the prosecutor's fear of creating an appearance of impropriety in the victim's family's eyes. Counsel pointed out, "That means there is an extra layer that's...
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