People v. Velasquez

• Decision Date: 01 February 1980
• Docket Number: Cr. 20834
• Citation: 26 Cal.3d 425,162 Cal.Rptr. 306,606 P.2d 341
• Parties: , 606 P.2d 341 The PEOPLE, Plaintiff and Respondent, v. Nick Ramon VELASQUEZ, Defendant and Appellant.
• Court: California Supreme Court

Page 306

162 Cal.Rptr. 306

26 Cal.3d 425, 606 P.2d 341

The PEOPLE, Plaintiff and Respondent, v. Nick Ramon VELASQUEZ, Defendant and Appellant.

Cr. 20834.

Supreme Court of California, In Bank.

Feb. 1, 1980.

Rehearing Denied Feb. 27, 1980.

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Donald L. A. Kerson and Monica Knox, Deputy State Public Defenders, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

This case arises under the 1977 death penalty legislation (Stats.1977, ch. 316, pp. 1256-1266) since superseded by the 1978 initiative currently codified as Penal Code sections 190 to 190.5. Defendant ¹ was charged and convicted of the first degree murder of Mario Casas. The jury found two special circumstances: that the murder of Casas was willful, deliberate, premeditated, and personally committed by defendant during the commission of a robbery; and that defendant had been previously convicted of second degree murder. It fixed his punishment at death. Defendant's appeal is automatic.

As we explain, we find no reversible error which affects the verdict of guilt or the finding of special circumstance. Since no juror otherwise qualified was excluded because of his automatic opposition to the death penalty, defendant lacks standing to assert that a death-qualified jury is unrepresentative or biased on the issue of guilt. His contention that substantial evidence does not support the special circumstance finding of Premeditated murder during the commission of robbery has arguable merit, but the issue is immaterial since undisputed evidence supports the alternative finding that defendant had suffered a prior murder conviction.

The penalty verdict, however, must be reversed. The trial court improperly excluded a prospective juror although the voir dire failed to make it "unmistakably clear" that the juror "would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial." (Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776.) (Hereafter cited as Witherspoon.) Such error compels reversal of a judgment imposing a death penalty.

1. Statement of the case.

Defendant Velasquez and codefendant Valencia were charged by information with the murder of Mario Casas. The information alleged, as a special circumstance permitting imposition of the death penalty, that the defendants personally committed a premeditated murder during the commission of a robbery. See former Pen.Code, § 190.2, subd. (c)(3).) As to defendant Velasquez, the information asserted a second special circumstance: that defendant personally committed the murder and had previously been convicted of second degree murder. (See former Pen.Code, § 190.2, subd. (c)(5).) The information also charged that in the commission of the murder defendants had used a firearm within the meaning of Penal Code section 1203.06, subdivision (a)(1); at trial the prosecution amended the information to charge firearm use also under section 12022.5.

Both defendants pled not guilty. Prior to trial, both presented a series of motions. First, they moved to strike the allegation of special circumstances as an abuse of prosecutorial discretion. The court heard testimony from Deputy District Attorney Trott, who explained the basis on which the district attorney decides whether to charge special circumstances, and denied the motion. Defendants further moved in the alternative either for separate guilt and penalty juries or to limit the voir dire of the jurors concerning their views on capital punishment. After a lengthy hearing at which defendants presented expert testimony on the effect upon the jury of excluding persons opposed to the death penalty, the court denied the motion.

At trial the prosecution proved that the victim, Mario Casas, was an attendant at a Texaco gas station at the corner of Garvey and Delta Streets in Los Angeles. He was killed by a single .22 caliber bullet, fired at a distance of a few feet, which penetrated his lung and the pericardial sac. Death occurred shortly after 10 p. m. on November 3, 1977.

Earlier that evening defendant was at his mother's home helping Gilbert Seguin paint the kitchen. Valencia arrived there about 8 p. m. and later talked to defendant for about 20 minutes. About 9:30 defendant and Valencia borrowed Seguin's car to purchase more beer.

About 10 p. m. Maria Somers and her mother, Josefina Somers, purchased cigarettes at the Texaco station where Casas worked. As they drove from the station they observed Casas struggling with two men. One, whom they identified as Valencia, was holding Casas by the arm and shoulder. The other, whom they could not identify, was holding a gun to the attendant's stomach.

The Somerses drove away from the station, found a police officer, and returned with him to the station. When they arrived, the two men had left. Casas was lying on the ground, shot, holding the torn half of a dollar bill in his hand. Texaco employees later testified that some of the evening's gas receipts were missing.

Benjamin Leyva, who lives near the gas station, testified that he heard sounds of scuffling. He looked and saw one man struggling with the attendant while another stood by some distance away. He then heard a shot, and saw the man who had been struggling with the attendant push the attendant away. The attendant fell to the ground; the other man ran to a car, which drove away with the man who had been struggling with the attendant in the passenger's seat. Leyva examined the attendant, decided he was probably dead, and started toward a liquor store to call the police when the officers accompanied by the Somerses arrived.

A sheriff's deputy testified that between 10 and 11 p. m. he stopped a car matching the description of the vehicle involved in the gas station robbery. Defendant, the driver, and Valencia emerged and were arrested. A search of the vehicle turned up a .22 caliber pistol which ballistic evidence later showed was the murder weapon. Bills were wrapped around the grip of the pistol and fastened with a rubber band. The officers also discovered an envelope containing 16 $1 bills.

Both defendants testified. Valencia said that he had shot the attendant after an argument which began when the attendant called him "stupid" in Spanish. Valencia claimed he had not intended to rob the gas station; the attendant had thrown money in Valencia's face so, after he shot the attendant, he picked up the money and took it. Valencia denied that defendant had anything to do with the killing or robbery; he excused his own participation by claiming to be high on PCP and alcohol at the time. Defendant's testimony, consistent with that of Valencia, was that defendant was merely standing by when Valencia began an argument with the attendant and shot him.

The evidence thus established without contradiction that defendants were the two persons present at the murder scene. The evidence was in conflict, however, as to who actually shot Casas. The testimony of the Somerses indicated that both defendants participated in the robbery and murder, with Velasquez actually shooting the victim; that of Leyva and the defendants that Valencia shot the attendant with Velasquez an uninvolved bystander. ²

The jury resolved this conflict against defendant Velasquez. It found both defendants guilty of first degree murder, thus rejecting testimony that Velasquez was a mere spectator of the crime. It further found the use of a firearm allegation true as to Velasquez but untrue as to Valencia, a verdict which clearly implies that Velasquez was the one who shot the attendant.

The special circumstance allegation against defendant Velasquez was based on two grounds. Prerequisite to either ground is a jury finding that "The defendant was personally present during the commission of the act or acts causing death, and with intent to cause death physically aided or committed such act or acts causing death." (Former Pen.Code, § 190.2, subd. (c).) The prosecution then alleged, first, that "The murder was willful, deliberate, and premeditated and was committed during the commission or attempted commission of . . . Robbery." (Former Pen.Code, § 190.2, subd. (c)(3).) It further alleged that "The defendant . . . has been convicted in a prior proceeding of the offense of murder of the first or second degree." (Former Pen.Code, § 190.2, subd. (c)(5).) The allegation against Valencia also alleged the special circumstance of premeditated killing in the course of a robbery.

The prosecution relied on the evidence presented at the guilt phase to show a premeditated killing during the commission of a robbery. To prove defendant's prior murder, the state introduced evidence of his 1967 conviction for the second degree murder of Mr. Isabel Sanchez. The jury found all special circumstance elements true as alleged and returned a verdict finding the allegation of special circumstance to be true as to both defendants.

At the penalty phase, ³ the prosecution described the 1967 murder and defendant's confession to that crime. Defendant then sought to present testimony that his confession was involuntary; the court refused to permit such testimony. The prosecution also presented evidence that defendant had been paroled from the 1967 conviction on September 8, 1975, that on May 10, 1977, he had been returned to prison for violation of the parole condition regarding use of alcohol, but was again paroled on September 23, 1977. The defense unsuccessfully objected to testimony of the parole violation on the ground that it had not received timely notice of such aggravating testimony as required by former Penal Code section 190.3. Defendant...