People v. Velasquez

• Decision Date: 29 May 1987
• Citation: 237 Cal.Rptr. 366,192 Cal.App.3d 319
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Flores VELASQUEZ, Defendant and Appellant. F006300.

Page 366

237 Cal.Rptr. 366

192 Cal.App.3d 319

The PEOPLE, Plaintiff and Respondent, v. John Flores VELASQUEZ, Defendant and Appellant.

F006300.

Court of Appeal, Fifth District, California.

May 29, 1987.

Review Denied Sept. 24, 1987.

[192 Cal.App.3d 321] Catherine Aragon, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey and Ellen M. Peter, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Associate Justice.

Appellant, John Flores Velasquez, was charged by information with the murder of Andrew Jackson White in violation of Penal Code section 187 ¹ (count one) and further alleged the murder was committed while appellant was engaged in the commission of a burglary pursuant to section 190.2, subdivision (a)(17)(vii). It was also alleged in connection with count one that appellant had used a deadly weapon, i.e., a hammer, in the commission of the murder pursuant to section 12022, subdivision (b). Appellant was further charged with burglary in violation of sections 459 and 460 (count two) and robbery in violation of sections 211 and 213.5 (count three). For each count, the information contained an allegation the crimes were committed against a victim over 60 years of age who sustained great bodily injury. (§ 1203.09.)

The information was later amended to add a second special circumstance which alleged the murder was committed while appellant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(i) ). An enhancement allegation that appellant used a deadly weapon, a hammer, was added to counts two and three (§ 12022, subd. (b)).

After trial, a jury reached the verdict of guilty as to each count and found each special circumstance and enhancement allegation to be true. The jury imposed upon appellant a period of confinement in state prison consisting of life without the possibility of parole. This appeal followed.

FACTS

On September 22, 1984, at midafternoon, appellant and his brother, Benny Velasquez, went to the home of Yolanda Villa. About an hour later, appellant left and entered the homes of three of Villa's neighbors without their consent. At approximately 4:15 p.m., one of those neighbors, Bernice Lopez, approached Yolanda Villa and complained a man had been in her home and had taken her wallet. Lopez asked whether Villa had seen him. Lopez's son responded the man was now in Villa's home. Lopez entered Villa's home and retrieved her wallet from appellant who was sitting at a table. Appellant did not resist and Lopez departed.

At approximately 7 p.m. that same day, 80-year-old Andrew Jackson White and his wife, Florence, were sitting at a picnic table in the yard of their home in Fresno, California. Appellant approached the table and snatched Mrs. White's purse. Mr. White retrieved the purse and appellant left. A neighbor, Barbara Rhein, observed appellant's unsuccessful attempt to steal Mrs. White's purse and his departure. She continued to watch and saw appellant return and enter the White home through the front door. She shouted to the Whites that he had entered the house and she called the sheriff's department. The Whites entered their home and confronted appellant. Mr. White ordered appellant out of the house and he left by the back door. Mr. White told his wife to telephone the police. Mrs. White went to her neighbor, Sherry Foster, and asked her to call the police. Then Ms. Foster heard breaking glass and saw a dark-haired man, not Mr. White, at the sink inside the Whites' home.

Sheriff's Deputies Tom Leband and David Rios arrived in response to the call from Ms. Rhein. They entered the White residence and found Mr. White lying in a pool of blood in the living room. A blood-covered hammer was on the floor. Appellant was discovered in the bedroom going through a dresser drawer. Protruding from his pocket were about a dozen knives from the Whites' kitchen. Inside his pockets, the deputies found money, a watch, necklace, and broken pieces from the Whites' piggybank. The deputies did not observe appellant stumbling nor swaying as he walked out of the house. When appellant exited the house, the deputies spread-eagled him face down on the grass. They handcuffed him and removed the knives from his pocket. The officers found no other weapons during their pat-down search.

Appellant was placed in a patrol car guarded by Deputy Rios. Appellant said to Rios: "Officer, officer, did the man die? I hope not, I swear to God, I did not know what I was doing." After a pause, appellant further stated: "You guys are in fuckin' trouble [pause] you mother fuckers. I have had it and I did not even do nothing.... You guys were dispatched to the wrong fuckin' call. I ain't got no mother fuckin' weapons, I ain't got shit. [Pause] Sir, did the dude die? Did the guy die?"

Sheriff Deputy Glass took custody of appellant from Deputy Rios at approximately 10 p.m. The appellant had been asleep in the patrol car for about one hour and had to be awakened in order to be transferred to custody under Deputy Glass. Glass testified he noticed appellant appeared to be intoxicated and under the influence of some type of narcotic. Glass detected the odor of alcohol on appellant's breath and appellant's speech was slurred.

In the interim, Mr. White was transported by ambulance to a local hospital. His head had been struck approximately 20 times. He died seven days later from these head injuries.

At appellant's trial, Mario Robles, who had been arrested and placed in the Fresno County jail for assault with a deadly weapon and attempted kidnapping on January 3, 1985, testified to his conversations and relationship with appellant during his period of incarceration. The day after he was placed in the Fresno County jail, Robles met appellant, who was a trustee inmate and therefore could circulate between the cells. Appellant, without prompting, discussed his case with Robles.

Robles had been previously incarcerated for a total of 11 years but had never represented himself at trial, only in pretrial proceedings. During this 1985 period of incarceration, Robles received pamphlets from an ex-offender organization entitled Inside/Out. Using the Inside/Out information and advice from a disbarred attorney who was also in custody, Robles filed a writ of habeas corpus on his own behalf. Robles showed appellant the pamphlet which contained a sample writ regarding the discharge of one's own lawyer. Appellant asked Robles to fill out the form for him.

During the course of their discussions, appellant first informed Robles he did not remember the murder. Subsequently, he told Robles he did in fact remember and had fooled the psychiatrist.

On April 3, 1985, Robles learned the victim was an 80-year-old man. The following day, Robles wrote a letter to the district attorney's office suggesting an interview regarding appellant's case.

On April 10, 1985, Robles was interviewed by personnel from the district attorney's office and the conversation was tape recorded. No one requested Robles to speak with appellant or gather information against appellant. No promises of leniency were ever made to Robles.

Dr. Ronald Segel, a psychopharmacologist, testified as to the effects of drugs on behavior. In reviewing all of the material and documents available in regard to this case, prior to his testimony, Dr. Segel testified the words, statements, and conduct of appellant reflected very little PCP-related effect.

Defense

Appellant testified he usually smoked PCP two to three times each week. However, on September 22, 1984, the day of the assault on Mr. White, he used heroin. Appellant's brother and Roosevelt DeLeon, a resident of appellant's apartment building, testified appellant was "high" on September 22, 1984. Between 6 and 7 p.m. on the date in question, appellant requested DeLeon drive him to get a "fix." DeLeon refused.

Appellant testified he did not remember anything from the time he consumed the heroin until he woke up in the back seat of the police car.

Appellant testified he met Robles while serving as a trustee in the jail. Robles said he had been poorly represented by the public defender in his own murder trial and suggested appellant file a motion to dismiss the public defender. Appellant indicated he did not have the education to fill out the writ form and Robles filled it out for him. Appellant denied talking to Robles about any other part of his case. Appellant claimed he only asked Robles to help him discharge the public defender. ² He denied disclosing any information about contriving a diminished capacity defense. ³ Appellant testified he told Robles he did not remember very much of what happened the day of the murder.

For the defense, Dr. Paul Levy, a psychiatrist, testified that on the information available, it was his opinion appellant was not acting in a reasonable, normal manner on the day in question and that he was under the influence of some kind of toxic substance which might well have been PCP.

DISCUSSION

WHETHER THE ATTORNEY-CLIENT PRIVILEGE APPLIES TO COMMUNICATIONS BETWEEN "JAILHOUSE LAWYERS" AND THEIR INMATE "CLIENTS"

At the time of these proceedings, charges were still pending against Robles with the possibility that, upon conviction, Robles could receive a 10-year sentence.

While incarcerated, Robles became acquainted with appellant. Robles testified he did not do any reading or studying on the law while in state prison, however, when arrested in February of 1985, he began reading law books and pamphlets. Evidence was presented that Robles filed seven writs with the Fresno County Superior Court using appropriate federal and state citations. There is no indication in the record that these writs were filed on behalf of anyone other than Mario Robles.

Due to his personal experience with the Fresno County Public Defender's Office, he advised other prisoners not to utilize the public defender's office. In February of 1985, Robles advised appell...