The People v. Cook
| Decision Date | 22 August 2001 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 3 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. MATTHEW LOREN COOK et al., Defendants and Appellants. C030492 THIRD APPELLATE DISTRICT (Sacramento) Filed |
APPEAL from a judgment of the Superior Court of Sacramento County. Peter Mering, Judge. Affirmed in part and reversed in part.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Loren Cook.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Soloman Lozo.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Darrion Gains.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Shirley A. Nelson, Acting Supervising Deputy Attorney General, Maureen A. Daly, Deputy Attorney General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION
Defendants Matthew Loren Cook, Anthony Soloman Lozo, and Darrion Troy Gains appeal from their judgments of conviction finding them guilty of conspiracy to commit assault with a firearm, first degree murder, premeditated and deliberate attempted murder, and first degree burglary arising from the killing of Jimmie Fonseca and the wounding of Carl Kato.
They raise claims of Batson/Wheeler1 error, insufficiency of the evidence, evidentiary error, prosecutorial and juror misconduct, sentencing error and instructional error.
Relying on People v. Fenenbock (1996) 46 Cal.App.4th 1688, defendants contend the trial court violated their right to notice and due process by instructing the jury that if they had a reasonable doubt that defendant was guilty of conspiracy to commit murder, they could convict him of the lesser included offense of conspiracy to commit assault with a firearm. We disagree.
In the published portion of the opinion2 we hold the trial court may look to the overt acts pleaded in a charge of conspiracy to determine whether the charged offense includes the lesser included offense. Under the accusatory pleading test for determining lesser included offenses, we find that conspiracy to commit assault by means of a firearm is a lesser included offense of conspiracy to commit murder as that offense was pleaded in the accusatory pleading. The overt acts alleged in the information gave notice to defendants of the lesser included offense and the defendants do not claim the facts shown at the preliminary hearing failed to give them notice of the lesser offense or that they were surprised by the evidence presented at trial.
With the exception of sentencing error relating to the prior prison term enhancements imposed upon defendants Cook and Gains, which we vacate, we find no error and affirm the judgments and the sentences otherwise imposed.
The victims and the defendants had known each other for years. Defendant Cook, his brother Brian, and Brian's girlfriend, Kami Jonutz, shared an apartment in Sacramento. During that same time, Jimmy Fonseca, the murder victim, Carl Kato, the surviving victim, and Sara Beasley also shared an apartment in Sacramento.
In the first half of October, Kato, Fonseca, and one of Fonseca's friends went with Lozo to a Raley's grocery store where they saw defendants Cook and Gains. An altercation occurred and Fonseca struck Cook in the head a number of times with a gun, knocking him to the ground. Later that day, Kato had a telephone conversation with Cook, who was angry and ended the call by hanging up on Kato.
A day or so later, while defendants Cook, Lozo, and Gains were in Brian Cook's apartment, and while in the presence of defendants Lozo and Gains, defendant Cook told Jonutz he had been pistol-whipped by Kato. Defendant Cook also told Jonutz some money had been stolen from Lozo. Defendants all appeared to be angry. The group talked about the incident for almost an hour, and all three defendants made comments indicating they were going to take revenge on Kato.
On Monday, October 16th, Cook and Lozo met with Jose Gomez and told him about an occasion in which Kato and someone else took money from them. Cook and Lozo seemed angry and upset. Cook told Gomez they were looking for a gun so Gomez took them to see a friend of his who sold them a .38 caliber revolver for "a couple hundred dollars." The gun was in a black fabric case.
Gomez drove the group back downtown and the defendants and Gomez went to the Burger King where they met Gains and his girlfriend, Tomesia Hale. The group decided to take Hale home. In route, Cook told Hale that Kato had hit him in the head with a gun. He laughed along with the other men and said, "[t]hat's okay, I'm coming back." Along the way, Cook told Gains ". . . I got the mask" and told Hale he and Gomez had purchased a gun earlier.
Later, defendants went to a small store where they purchased some knit caps to use when they went to Kato's apartment. After purchasing the caps, Gomez and Cook bought two additional ski masks, with eye holes already in them, at another nearby store. The group returned to Gomez's car, where defendants retrieved the gun they had purchased and agreed to meet Gomez later.
Meanwhile, around 5 p.m. that same day, Kami Jonutz returned home from work and found defendants Gains, Lozo, and Cook, and Brian Cook in her living room. Defendant Cook showed her a handgun which he removed from a leather zippered pouch. He described it as a .38 Special revolver and told her he had purchased it earlier that day. Defendants were talking about using the gun that night to get revenge on Kato, and spoke about it for almost an hour. Meanwhile, Brian brought three black knit caps into Jonutz's bedroom where he cut eye holes in them and then gave them to defendants. The three defendants left the apartment around 7 p.m.
Around 8 p.m., defendants and co-defendant Bolds met with Gomez and agreed to go to Kato's house that night. Around 9:45 p.m., the group drove to an area near Kato's apartment, and parked a short distance away. Around 9:45 p.m., the five men got out of Matt Cook's car, walked down an alley, and stood there for a while until Karen Gonzales spoke to Gomez. Karen and her partner lived in the apartment complex across the alleyway from the victims' apartment, and had seen the men standing in the alley near a dumpster. Karen thought something was suspicious because some of these men appeared to be hiding, so she approached the man near the dumpster, inquired what he was doing, and asked him to leave. Gomez, who was smoking, replied they were smoking a "joint" and told her they would be gone in a few minutes.
Gomez was armed with a small .380 automatic Glock which he had in his pocket and loaded while they were in the alley. Lozo had the .38 caliber revolver he had purchased from Garcia earlier that day. Before approaching Kato's apartment, Cook, Lozo, Gains, and Gomez pulled the ski caps down over their faces.
When Lozo and Gains approached Kato's apartment, Gomez saw someone inside pull back the curtain and look outside. The person appeared to panic and make a quick movement. Gomez thought he saw that person with a gun, whereupon he and Bolds fled toward the alleyway, running in different directions. As Gomez and Bolds left, Lozo forced the apartment door open.
Meanwhile, Kato had gone to bed and had locked his bedroom door. Beasley was in bed asleep while Fonseca sat in a chair in her bedroom listening to music and reading the newspaper near the window. Shortly before 10 p.m., Beasley was awakened by the sound of a gunshot and the sound of her bedroom door being kicked open. She saw a masked man standing in the doorway, holding a gun. The intruder was wearing dark, baggy clothing and a black ski mask with holes cut in it for his eyes and mouth. From a distance of only a few feet away, the intruder leaned over Fonseca and fired a second shot at him, stating in a deep voice, "[d]ie mother fucka, die." His voice sounded vengeful, angry and hateful. Fonseca fell to the floor and the gunman shot him again.
At the same time, Kato was awakened by loud noise and the sound of gunshots. His bedroom door was kicked opened and three men wearing dark clothing and ski masks entered. The largest of the three men was pointing a gun at him. All three of the men were about six feet tall.3 Thinking it was a joke, Kato said, "[s]top playing." Seconds later, he saw two flashes and heard two gunshots. He jumped out of bed after the first shot and was hit by the second shot as he rolled off the bed. He ran into the other bedroom where he saw Fonseca lying on the floor, bleeding.
Beasley ran outside for help. Fonseca asked a neighbor who was attempting to assist him, to pick up a gun that was lying a few inches from his right hand and give the weapon to Beasley. The neighbor refused, but Beasley picked up the gun and put it beneath her bed.
About 11:30 p.m., defendants Cook and Gains returned to the apartment where they told Brian they had gone to Kato's house, kicked down the door and started shooting. Forty-five minutes later, Lozo arrived and said he had kicked in the door and was shooting.
Around 11 p.m., that same night, defendant Gains went to visit 15-year old Latrice Patterson, who lived with her grandmother. He arrived by car and appeared to be alone. He spoke with her for about 30 minutes and left.
The next morning, when Jonutz awoke, defendants Lozo and Gains were still in her apartment along with co-defendant Bolds. Lozo was talking to Brian about the previous night. He said he had kicked down the door and was shooting and that Cook and Gains had been outside the apartment somewhere. He indicated that inside the apartment there were "two guys sitting on the couch, and one of...
To continue reading
Request your trial