People v. Venegas

• Decision Date: 25 August 1970
• Docket Number: Cr. 17304
• Citation: 10 Cal.App.3d 814,89 Cal.Rptr. 103
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Cardilli VENEGAS, Defendant and Appellant.

Page 103

89 Cal.Rptr. 103

10 Cal.App.3d 814

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Cardilli VENEGAS, Defendant and Appellant.

Cr. 17304.

Court of Appeal, Second District, Division 5, California.

Aug. 25, 1970.

Rehearing Denied Sept. 21 and Sept. 24, 1970.

Hearing Denied Oct. 22, 1970.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Alexander B. McDonald, Deputy Atty. Gen., for respondent.

AISO, Associate Justice.

The information charged defendant in count I with an assault with a deadly weapon with intent to commit murder (Pen.Code, § 217) and in count II with a convicted felon's possession of a firearm (Pen.Code, § 12021). He waived jury trial and the court found him guilty on both counts. Motion for new trial and probation were denied. Defendant was sentenced to state prison on both counts, the sentences thereon to run concurrent with each other and concurrent with any other sentence, service of which defendant had not completed. He appeals from the judgment.

Defendant contends upon appeal: (1) imposition of sentence upon both counts I and II constituted a violation of a section 654 of the Penal Code enjoining the imposition of multiple punishments for a single criminal act; (2) sentence on the violation of section 12021 of the Penal Code ¹ also violated the federal and state constitutional prohibitions against ex post facto laws; and (3) the trial judge's admonition to the witness Rodriguez, the victim of the assault charged, concerning the laws of perjury during his examination as a witness constituted prejudicial misconduct.

Review of the record and applicable law leads us to conclude that defendant's contention (1) Supra has merit and that the judgment accordingly should be reversed insofar as it imposes sentence on count I, but in all other respects the judgment should be affirmed.

I.

On the evening of March 11--12, 1969, defendant Venegas, his friend Jose Richard Rodriguez, and their respective female acquaintances Mrs. Sherry Ann Light and Mrs. Juanita Bueno, were at the Plush Bunny Club in Pico-Rivera from around 9 p.m. to around 1 a.m. The four were seated around a table, 18 to 20 inches in diameter. Diane Fike was a waitress on duty in the area. She had served them during the evening, dispensing alcoholic beverages to some and non-alcoholic drinks to others. When defendant and Rodriguez ordered drinks around 1 a.m., she refused to serve them, requesting defendant to tell Rodriguez that he could not have any more drinks as he was 'nodding on the table.' ² Defendant then leaned across the table as if he were going to speak to Rodriguez, so Mrs. Fike returned to her station near the bar. There she conversed with Frank Ettinger, the owner of the bar, informing him that she had refused to serve defendant and Rodriguez.

Ettinger left her and walked towards the poolroom area of the club. At that juncture, Mrs. Fike heard a shot or a loud noise, like that of a firecracker, coming from the section of the club assigned to her. She saw defendant with a gun in his hand pointing it across the table at Rodriguez. Another two shots followed. She saw Rodriguez in a 'half standing' position begin to fall towards the dance floor. At the time of the shooting, defendant was only two or three feet from Rodriguez. Mrs. Fike was only eight or nine feet away when she observed the incident.

Ettinger was on his way to alert his floor man concerning the conduct of defendant and Rodriguez reported to him by Mrs. Fike when he heard a muffled shot. He immediately turned towards the area from which the sound had come. As he took a couple of steps forward, he heard two more shots. He proceeded to where Rodriguez was on the floor. As he did so, he saw defendant running alone towards the main entrance of the club. Ettinger's son caught defendant, grabbed him, and knocked him down onto the floor, where he was held until the police arrived.

Carmen Cadillo, who was present in the club, saw a gun on the floor about fifteen feet away from defendant, picked it up, and gave it to Ettinger, who in turn gave it to Deputy Sheriff Hellesen who arrived at the club. The gun contained three live and three expended .38 caliber rounds of ammunition. One of the live rounds bore a mark as if it had been stricken by the firing pin.

During the time Ettinger's son was holding defendant on the floor, Mrs. Light clung to defendant, interfering with Ettinger and his son controlling defendant. While clinging to defendant, she said, 'He didn't mean it.' When Ettinger tried to separate her from defendant, she kept responding, 'No, no.'

Upon his arrival at the scene, Deputy Hellesen placed handcuffs on defendant in response to Ettinger's yelling, 'Put the cuffs on this man (defendant).' However, when he learned that Ettinger did not actually see defendant shoot Rodriguez, he removed the handcuffs and he did not place defendant under arrest. Later, when he was speaking to defendant outside of the club concerning the shooting, ³ Mrs. Light was standing next to defendant and facing the officer. Mrs. Fike heard her say at that time, 'He didn't mean to do it. He didn't mean to do it.' Defendant identified himself to the officer as Frank De La Cruz, instead of Frank Cardilli Venegas.

Based upon his questioning of defendant, Deputy Hellesen was of the opinion that defendant was not drunk although he had been drinking. Defendant, he opined, was rational and coherent; defendant's responses to questions put to him were 'logical.'

Deputy Hellesen informed defendant and Mrs. Light that he intended to continue his investigation at the hospital and requested that they follow him there. Both agreed to do so, but in fact did not go there. Instead, according to Mrs. Light, she drove defendant to his father's home because he passed out. Defendant was ambulatory, but not fully conscious and was rambling in his speech. It was at the father's home that Mrs. Light first noticed that defendant had a gunshot wound in his left leg. It 'didn't look very bad. There was very little bleeding.' She informed defendant that she had been instructed to take him to the hospital, but defendant replied that 'he didn't want to go to the hospital or to a doctor.'

Later when the police came to her home, she led them to the house to which she had taken defendant. Defendant, however, was no longer there. No one at the house knew of his then whereabouts.

Rodriguez required surgery. One bullet had entered his left stomach area; another, his right shoulder. He was hospitalized for a total of a month.

A couple of days after the shooting, defendant came to Mrs. Light's house and inquired as to what had transpired at the Plush Bunny Club on the evening in question. She replied that she did not know except that Rodriguez had been shot. When she inquired about defendant's wound, he answered, 'somebody pulled a gun and (defendant) was wrestling with it.'

Sometime later but before trial, Rodriguez visited the Plush Bunny Club, accompanied by defendant's lawyer and a third person. In response to Ettinger's questions, Rodriguez when he was alone told Ettinger that he and defendant were good friends and that he did not know why defendant did it--'You know, I don't know why he'd want to shoot me.'

Defendant's convicted felon status was proved by documentary evidence, fingerprint exemplars, and the testimony of a fingerprint specialist.

The defense theory was that the person who shot Rodriguez was an unidentified third person, and not defendant. In this regard, Rodriguez had testified when called by the People as a witness that he saw the person who shot him, but that it was not defendant, who was 'trying to take the gun from some other people.'

Ramon Sandoval was called as a defense witness and testified: He was not acquainted with defendant, Rodriguez, Sherry Ann Light, or Juanita Bueno. He had not spoken to any of them or any other persons in court, but managed to ascertain the proper court at the time of trial. He had visited the club subsequent to the shooting and had heard talk that defendant had been accused of shooting Rodriguez. He was offering himself as a witness, interested only in seeing that an innocent man would not be found guilty. He was present at the time of the shooting. He saw the person who shot Rodriguez. It was not defendant. A man just walked up to the table and pulled out a gun. Since he (Sandoval) left the club right after the shots were fired, he was unable to give specific details as to that person.

Jay Contrelli, called as a defense witness, testified: He was a member of the seven-piece band employed at the club. He heard a noise like that of a firecracker. He saw Two people struggling. He saw a hand with a gun in it, then two flashes. One of the two who had been struggling fell to the floor; the other person ran out the back door. Because the person running out the door was seen from his back, Contrelli was unable to describe the runaway. Although he did notice the 'bouncer of the club fighting with somebody,' he saw one body on the floor, which he covered with someone's coat as a blanket was not available.

Defendant did not testify.

Additional facts or evidence will be set forth where germane to a particular issue under discussion.

II.

It is established law that section 654 does not interdict multiple prosecutions where a single act may constitute more than one crime; however, it does forbid the imposition of multiple punishment on convictions growing out of a single criminal act. (See E.g., In re Ward (1966) 64 Cal.2d 672, 676, 51 Cal.Rptr. 272, 414 P.2d 400, cert. denied, Ward v. Oliver, 385 U.S. 923, 87 S.Ct. 238, 17 L.Ed.2d 147; People v. Hicks (1965) 63 Cal.2d 764, 765--766, 48 CalRptr. 139, 408 P.2d 747.) "Section 654 has been applied not only where there was but one 'act' in the ordinary sense *...