State v. Gonzalez
| Decision Date | 31 August 2012 |
| Docket Number | No. 104,612.,104,612. |
| Citation | 283 P.3d 840 |
| Parties | STATE of Kansas, Appellee, v. Giovanni J. GONZALEZ, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., HILL, J., and MICHAEL E. WARD, District Judge, assigned.
Giovanni J. Gonzalez appeals his conviction for the second-degree murder of Arturo Moreno. He first argues that the State failed to present sufficient evidence in support of his conviction for second-degree murder. He next argues that his case presents several alternative means issues and the State failed to present sufficient evidence on one or more of the alternative means. Third, he claims that the district court erred in failing to instruct the jury on voluntary manslaughter. Fourth and finally, he argues that his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated when the trial court sentenced him to the aggravated sentence in the grid box without putting the aggravating factors before a jury.
There is sufficient evidence to support Gonzalez' conviction; there is no alternative means error; the trial court did not err in denying his request for a voluntary manslaughter instruction; and there is no Apprendi violation. Accordingly, Gonzalez' conviction for second-degree murder and the sentence imposed are both affirmed.
On March 17, 2009, Moreno was at his apartment in Wichita with his girlfriend Aurora Tinoco, her infant child, her sister Pamela Tinoco, and Pamela's friend Lisa Chavez. While there, Pamela received a call from her boyfriend Rogelio Soto asking whether he and his friends Luis Navarrette–Pacheco and Gonzalez could come over to Moreno's apartment. Pamela asked Moreno if it would be alright, and he agreed. Soto, Navarrette–Pacheco, and Gonzalez arrived at the apartment at about 5 p.m. They initially stayed outside the apartment, drinking beer, dancing, and listening to music. Everyone appeared to be getting along.
While outside, Pamela took pictures of her friends. Several of the pictures showed Soto and Navarrette–Pacheco flashing gang signs. Soto was a member of a gang known as the “Lopers,” a subset of the “SUR 13” gang. Gonzalez was a self-admitted member of the SUR 13s and had demonstrated his affiliation with that gang. Testimony is mixed about whether Gonzalez had actually been initiated into the SUR 13s prior to March 17, 2009. Soto and Pamela knew that Moreno used to hang out with a rival gang known as the “Vato Loco Boys” or “VLBs.” Moreno had associated with the VLBs for about 10 years. There was a longstanding rivalry between the VLBs and the SUR 13s, which took an ugly turn in 1998 when VLB gang members killed 8–year–old Tony Galvin, a.k.a. Little Tony, in a drive-by shooting intended for members of the SUR 13 gang. Police promptly arrested the men who killed Little Tony. Despite that fact, Little Tony's murder continued to resonate with the SUR 13s.
The gathering at Moreno's apartment eventually moved inside at about 8:30 p.m. At approximately 9 p.m. the Tinoco sisters and Chavez left for the evening. Even though Soto, Gonzalez, and Navarrette–Pacheco had just met Moreno, they remained with him drinking beer. Aurora was apprehensive about leaving her boyfriend Moreno in the company of these three.
At about the same time that the Tinoco sisters were leaving, Gonzalez and Navarrette–Pacheco left to pick up Angel Castro, who was an associate of the SUR 13s. When Gonzalez, Navarrette–Pacheco, and Castro arrived at Moreno's apartment, Soto instructed Castro not to touch anything. Soto, Gonzalez, and Navarrette–Pacheco appeared to arrange themselves in a triangle around Moreno.
At approximately 9:30 p.m. Moreno called his friend Bryan Duran. Castro, Soto, Navarrette–Pacheco, and Gonzalez were all present and overheard the conversation. The accounts of this phone conversation are somewhat conflicting. Moreno reportedly inquired of Duran about the identity of those involved in the killing of Little Tony. Duran told him that the people responsible for Little Tony's murder had been arrested and incarcerated long ago. One version of the conversation is that Moreno told Duran he was involved in Little Tony's death. Another account is that he told Duran he was in Texas at the time of the murder. Toward the end of the conversation, Moreno began to cry and told Duran that he loved him. Duran could hear voices in the background and was concerned for Moreno. He offered to come over to Moreno's apartment, but Moreno declined his invitation.
The mood in the room soured after Moreno hung up with Duran. Soto stood up and pulled out a knife. Castro believed something bad was about to happen, and he made his way out the door and down the stairs. As he descended the stairs he heard Moreno say, “Why?”
While in the backyard of Moreno's apartment, Castro urinated and stood there for a little while. He then returned to the apartment where he saw Moreno's body on the floor, covered with blood. Castro, Gonzalez, Soto, and Navarrette–Pacheco gathered the items they had touched or which they believed might be used as evidence and placed them in a black trash bag. Castro asked the group, “Why did you guys do this?” Soto replied, “Because of Little Tony.”
Upon leaving the apartment, the black trash bag was placed in Gonzalez' truck. Castro, who had not been drinking, drove the three others in Gonzalez' truck to a site in the south part of Wichita. During the ride they inspected their shoes for blood. Upon arriving at the river, the group disposed of the trash bag and other items from the scene of the crime. When Gonzalez returned to his parents' home, he did not speak to his mother or girlfriend. Instead he went straight to the basement and took a shower. His girlfriend, who lived with him, was scared because she did not know what had happened to him.
Later that evening David Moreno arrived at the apartment he shared with his brother Moreno and discovered his brother's body. He reported the death to the police. Underwater divers from the Wichita Fire Department subsequently recovered chess pieces on the river bank, a DVD player, and a black trash bag containing a beer can and other items. They also recovered a paper bag containing a folding knife.
Police searched Gonzalez' home the next morning and found what appeared to be blood on his tennis shoes. At trial, a DNA analyst testified that the blood, which was consistent with Moreno's, had been absorbed into the tongue and interior part of the shoes. That same day, police officers brought the Tinoco sisters in for questioning. Aurora described Soto as a SUR 13 gang member and indicated that Gonzalez was wearing a jersey with the number 13 on it, denoting his affiliation with SUR 13. She told the detective that Gonzalez and his friends “think they're so gangster.” Gonzalez and his girlfriend were also brought in for questioning. Gonzalez made no incriminating statements.
An autopsy revealed that Moreno had been stabbed or slashed 79 times. The medical examiner, Dr. Dele Adeagbo, testified that the wounds on the front and back of Moreno's body could have been caused by more than one person. He was “very suspicious” of this possibility, but he could not say with certainty whether more than one person had inflicted the injuries. Tool mark examiner Gary Miller examined one of the wounds on Moreno's body, as well as the various knives and other instruments collected by investigators. He determined that the wound could not have been caused by the black folding knife collected from Gonzalez' bedroom or the black steak knife taken from Gonzalez' truck. But he could not exclude the folding knife found in the river or the multi-use tool found in Gonzalez' truck as having caused this injury.
The State charged Gonzalez, Soto, and Navarrette–Pacheco with premeditated first-degree murder. Castro pled guilty to aiding a felon and agreed to testify about Moreno's murder. The district court granted the State's motion to prosecute Gonzalez as an adult and tried him separately from the other defendants. A jury found Gonzalez guilty of the lesser included offense of second-degree murder. The trial judge sentenced him to 165 months in prison, the aggravated sentence for second-degree murder. He filed a timely appeal.
Standard of review.
State v. Raskie, 293 Kan. 906, Syl. ¶ 6, 269 P.3d 1268 (2012).
Analysis of the evidence.
K.S.A. 21–3402(a) defines second-degree murder as the intentional killing of a human being. The aiding and abetting statute, K.S.A. 21–3205(1), provides that a person is “criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Our Supreme Court has said that a “person may be convicted under the theory of aiding and abetting a crime if the person, either before or during its commission, aids or abets another to commit a crime with the intent to promote or assist in its commission.” (Emphasis added.) State v. DePriest, 258 Kan. 596, 602, 907 P.2d 868 (1995).
Because the jury convicted Gonzalez of second-degree murder rather than first-degree murder, he argues...
To continue reading
Request your trial