People v. Zataray

• Citation: 173 Cal.App.3d 390,219 Cal.Rptr. 33
• Court: California Court of Appeals
• Decision Date: 16 October 1985
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony ZATARAY, Defendant and Appellant. F003478.

Page 33

219 Cal.Rptr. 33

173 Cal.App.3d 390

The PEOPLE, Plaintiff and Respondent, v. Anthony ZATARAY, Defendant and Appellant.

F003478.

Court of Appeal, Fifth District, California.

Oct. 16, 1985.

Certified for Partial Publication. ^*

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Antonia D. Radillo, Deputy State Public Defender, Sacramento, for defendant and appellant

John K. Van de Kamp, Atty. Gen., James T. McNally, Supervising Deputy Atty. Gen., Edmund D. McMurray and Thomas Y. Shigemoto, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Anthony Zataray was convicted by a jury of murder in the second degree (Pen.Code, §§ 187, 189) ¹ and of having personally used a firearm in the commission of the offense ( § 12022.5). He appeals from the judgment.

Appellant moved to exclude use of two 1981 convictions of prior felonies for impeachment--a kidnaping ( § 207) and an automobile theft (Veh.Code, § 10851). The motion was denied. Notwithstanding the denial, appellant testified in his own defense and was impeached with the two priors. The principal issue in this case is whether under People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 the impeachment constituted reversible error. We conclude it does not.

FACTS

At approximately 5 p.m. on June 7, 1983, the victim, Greg Walker, accompanied by two friends, went to the house of Robert Silsby, another friend. Though Walker did not appear to be intoxicated, Silsby could smell alcohol on his breath, and his eyes were red. The group went to the park for a while and then, after an unsuccessful attempt to purchase some beer (they were under age), returned to Silsby's house. It was about 6:30 p.m. when Silsby got home. Walker waited outside while Silsby ate dinner. After dinner, Silsby borrowed his father's pickup and drove Walker to his house; the two then proceeded to the home of Walker's good friend, George Morales.

Walker went inside Morales' home while Silsby waited outside in the truck. After fifteen minutes to one-half hour later, Walker came out of the house and told Silsby that Morales' wife had just had a baby and that Morales had left to go to the store. The two waited outside for Morales to return. Fifteen minutes to one-half hour later Morales returned home. Silsby waited in the truck while Walker went inside. Walker had two drinks of whiskey and received some cigars.

Morales testified that when he saw Walker at this time Walker did not appear to be drunk but did appear to be high on something and intoxicated.

A number of persons in addition to Walker, including appellant, were visiting Morales at this time.

Walker stayed for about 10 to 15 minutes and then returned to the truck where Silsby was waiting. The two proceeded to Walker's parents' house where they watched television and talked to Walker's father. About one-half hour later they left the house and smoked some cigars out front. After another one-half to one hour passed, the men headed for the liquor store and found someone (Walker and Silsby were minors) to buy them a six-pack of beer. They returned to Walker's house and drank the beer.

After they had consumed the beer, ² around midnight Silsby decided to go home and, upon Walker's request, Silsby gave Walker a ride to the Morales' house. Silsby thought Walker appeared intoxicated and was "feeling good" or "high." When the men arrived at the Morales' residence, Silsby parked the truck on the left side of the street a little beyond the house.

In the meantime, everyone but Morales and appellant had left the Morales' residence. Morales was a good friend of appellant. Morales had fallen asleep on the living room couch, and appellant was sitting on the floor "nodding off." Appellant had consumed approximately one-half bottle of whiskey and as much as a case and a half of beer that evening. In Morales' opinion, appellant was "drunk." Prior to nodding off, Morales and appellant had been playing cards. Appellant was weaving and having trouble holding onto the cards and focusing on the game. He did not walk straight, and his actions were slow and deliberate.

When Walker and Silsby arrived at the Morales house, Walker exited the truck while Silsby remained in the truck listening to the radio. What occurred thereafter is subject to conflicting recollections.

According to Silsby, when Walker exited the truck dogs were barking "like mad." ³ Silsby did not see the dogs, but it sounded like the noise was coming from the front of the house. Silsby heard Walker call out Morales' name two or three times in a normal voice, loud enough to be heard inside the house. Walker was standing about 10 feet behind the truck. Silsby did not know whether Walker had walked up the sidewalk to the front door of the house or whether Walker knocked on the door. (According to appellant, there was pounding on the door, awakening him and Morales.) Walker received no response and started walking back to the truck when the door of the house opened and a light went on. Someone, later identified as appellant, asked Walker what he wanted. Walker responded that he wanted to talk to Morales. Appellant told Walker that Morales was asleep and to go home and come back tomorrow. Walker said "all right" and began walking toward the truck. The next thing Silsby heard was a shot. Looking in his rear view mirror, he saw Walker's hand go up and his body fall forward.

Frightened and in a state of shock, Silsby slouched down in his truck. Within a minute or two, someone, later identified as Morales, opened the passenger side door of the truck and put Walker inside. Silsby testified that someone else held a gun to his head. According to Silsby, no one said anything to him.

Silsby drove Walker to Walker's parents' house. He checked to see if Walker was breathing, and he was not. He then took Walker out of his truck, laid him on the lawn, knocked on the door, and, fearing he was being followed, quickly drove away and went to the house of a friend, Robert Morgan. Silsby told Morgan what had happened, and Morgan called an ambulance and Walker's mother.

George Morales testified to a slightly different version of what occurred. According to Morales, he and appellant were awakened at approximately 11:30 or 12:00 that night by a pounding on the door. Morales heard the dogs barking on the side of the house. Appellant arose to answer the door. After appellant opened the door, Morales' neighbor's dog also began to bark. Morales got up, and as he was walking through the kitchen he heard a shot. He had not heard any voices. When Morales reached the front door, appellant passed through, telling him that someone had tried to come in as he was opening the door and that he took off running, "so I threw a shot."

Morales went outside and found Walker lying motionless on his back in the street about six or seven feet behind Silsby's truck. He could see Walker' body as he was coming through the front door. Morales picked Walker up and put him inside Silsby's truck on the passenger side. At this point he recognized Silsby and told him to take Walker to the nearest hospital. Silsby said he was going to take Walker to St. Agnes. Morales responded that Community Hospital and Valley Medical Center were closer, and then shut the truck door. Morales was not sure whether appellant came out to the street when Morales was putting Walker inside the pickup. His recollection at trial was that appellant stayed at the location approximately 10 feet from the front door.

After Silsby drove away, Morales got his car started (it was malfunctioning) and began looking for Walker. He checked the hospitals, and then drove past Walker's house where he saw police officers out front. Morales proceeded to a friend's house where he called Walker's home and spoke to his brother. He then went to Walker's house where he spoke to Detective Moralez, telling him what had transpired. Detective Moralez accompanied Morales back to Morales' house; appellant was no longer there. However, about five minutes after the officer and Morales arrived, appellant telephoned. Morales told appellant that the officer was there and admitted telling the officer that appellant was responsible for the shooting. Appellant hung up and called back a few minutes later, this time speaking to Detective Moralez. Appellant agreed to turn himself in between 6 and 8 a.m. and admitted that he was the man who shot Walker. The call was traced, and the officers proceeded to appellant's location.

The officers found appellant outside a residence, leaning against his car as if he was waiting for someone. He informed the officers that he was the person they wanted and, without being asked, told the officers the location of the gun--inside the car. Appellant was cooperative, did not resist arrest, and did not display symptoms of intoxication. ⁴

An autopsy on Walker revealed a single gunshot wound in the back of his neck as the cause of death. He was shot from a distance of two feet or greater. He had a blood alcohol content of 0.12 percent by weight and a cocaine content of 0.26 milligrams per liter of blood.

After appellant was arrested, at approximately 5:05 a.m., appellant's blood was drawn, and it revealed a blood alcohol content of 0.17 percent by weight. Toxologist Bill Posey testified concerning the effect of high levels of alcohol on chronic and acute drinkers. Mr. Posey testified that alcohol affects the motor skills of all drinkers, both acute and chronic, within certain parameters. The psychological effects of alcohol, however, are better controlled by chronic drinkers. Alcohol can cause a person to become more aggressive and confident and less responsive to proper social behavior.

Dr. Levy, a psychiatrist, testified for the defense. Dr. Levy testified to the psychological and physiological effects of alcohol and cocaine. Dr. Levy explained the...