People v. Barillas

49 Cal. App. 4th 1012, 96 Daily Journal DAR 11921, 96 Cal. Daily Op. Serv. 7297, 57 Cal. Rptr. 2d 166, 1996 Cal. App. LEXIS 916

Opinions

Opinion

LILLIE, P. J.

A jury convicted appellant of first degree murder (Pen. Code, § 189; count I; statutory references, unless otherwise noted, are to the Penal Code), attempted robbery (§§ 664/211; count II), residential burglary (§459; count IV), and two counts of robbery (§211; counts III and V). Personal gun use allegations—as to all counts except burglary—were found true (§ 12022.5) as was an attempted robbery special circumstance allegation (§ 190.2, subd. (a)(17)). No verdict was reached regarding an additional attempted robbery charge (§§664/211; count VI) and it was dismissed. Appellant was sentenced to state prison for life plus five years, without the possibility of parole.

We hold sufficient evidence corroborated the testimony of accomplice Michael Martinez, we find no instructional error, and we affirm the judgment.

Factual Background

Unlike the usual case, the trial evidence was almost without contradiction. Fifteen witnesses (one by stipulation) testified for the prosecution, none for the defense. The principal events occurred on two days, Thursday December 9, 1993, and Sunday December 12, 1993, all within a small area of Canoga Park near Roscoe and Topanga Canyon Boulevards. We summarize the evidence but, because of appellant’s insufficient corroboration contention, in more than usual detail.

In late November 1993, Michael Martinez (Martinez) met Timothy Petersen (Petersen) at the Austin-Healey restoration shop in Canoga Park where Petersen was head mechanic. Martinez, 23 years old and unemployed, was looking for a job. Petersen obtained a job for Martinez at a nearby shop and let Martinez share his apartment at 7810 Topanga Canyon Boulevard, apartment 120.

Almost immediately, two recent acquaintances of Martinez’s, appellant and appellant’s girlfriend Genessa Geddry (Genessa), began staying at the Petersen apartment. Genessa, 14 years old, tall with long brown hair, had recently been “kicked” out of her divorced father’s house. Appellant was eighteen, five feet five inches, slender, with short almost “shaved” hair, and had no permanent residence.

Sometime before December 9, Petersen noticed that appellant and Genessa were sleeping overnight in his apartment and he told them—or told Martinez—they could not do so.

On December 9, after Petersen had departed for work, appellant and Genessa visited Martinez at the Petersen apartment.¹ Genessa soon left to “scope out” apartment 233. She went up a short flight of stairs leading to apartment 233, broke a window, entered, and opened the front door for appellant. As the assistant manager (Rosella Higgins) watched from her office window, Genessa and appellant ransacked the apartment, and repeatedly carried loot to the Petersen apartment. Among the property they brought there was a shotgun, which Martinez hid under Petersen’s couch, and a .38-caliber dark-colored Smith and Wesson revolver with a box of .38-caliber Remington ammunition. Appellant was “ecstatic” over the revolver, loading and unloading it.

When Martinez exited the Petersen apartment to help appellant and Genessa with the burglary he saw the assistant manager on the phone, talking as she watched them. Martinez went downstairs and caught a bundle of loot appellant tossed him. The three of them quickly and separately left, before the police arrived.

Later that evening, the three of them got together at Topanga Canyon and Roscoe, a short distance from David Murth’s apartment. David Murth (Murth) was a 31-year-old electrician with a $500-a-week rock cocaine habit. Appellant was his street dealer. Genessa and Martinez often would buy rock cocaine for Murth from appellant. All of them smoked rock cocaine.

One of the places where appellant, Genessa and Martinez sometimes stayed was the Cafe Romantique, an abandoned restaurant near Roscoe and Topanga Canyon. Appellant, to test his newly acquired .38-Caliber revolver, fired a round at the restaurant ceiling.

On Sunday, December 12, 1993, appellant and Martinez were drinking with Murth in his apartment when appellant suggested they commit some robberies to get money for rock cocaine. Martinez and Murth agreed and the three of them left in Murth’s white pickup truck with Murth driving, Martinez in the middle, and appellant, wearing a black coat with a hood and with his loaded .38-caliber revolver, by the passenger door.

About a mile away, at a little mall where she had her Satin Nails shop, Erlinda Gibbons (Gibbons) was with her 65-year-old mother. It was about 7:30 p.m. and Gibbons slowly walked with her mother to her car. She opened the passenger door, let her mother enter, walked to the driver’s door and was about to enter when she saw a man in a long black coat with a hood run toward her. He said “Give me your money.” Gibbons quickly entered her car and locked the door. The man pointed a dark gun at her and Gibbons was so scared she dropped her car keys. As the man continued to point the gun at her she kept blowing her car horn.

Martinez, who was urinating at a nearby comer, heard the honking and saw appellant mn toward him as restaurant customers, hearing the commotion, exited the restaurant. Appellant and Martinez ran to the nearby pickup tmck, jumped in, and Murth drove off.

Gibbons described the would-be-robber to the police: Hispanic, five feet four inches, thin build, about twenty years old.²

An hour and a half later, about 9 p.m., Murth parked his white pickup in front of a liquor store next to an Alpha Beta market, about a mile from Roscoe and Topanga Canyon Boulevards. Appellant got out.

Soon, Joel Bromley (Bromley) parked his tmck next to the white pickup, got out, and started toward the liquor store when someone approached and asked for money. Thinking the person was a panhandler, Bromley said “what?” The person pulled back his shirt and displayed what looked like a .38-caliber revolver tucked into his pants. Bromley attempted to hand a $20 bill to the person but he told Bromley to get between the two trucks. Bromley did and saw there were two people in the white pickup. Bromley then dropped the $20 bill, the person asked “Where is the money?” Bromley pointed to the ground, and heard the white pickup passenger say “shoot him, shoot him.”³ When the robber momentarily turned toward the white pickup, Bromley fled.

A month later Bromley identified appellant’s photograph and at trial, positively identified him despite appellant having gained weight and having let his hair grow out.

With the $20 appellant, Martinez, and Murth bought rock cocaine. But— with the three of them—it was soon gone.

About an hour later, Murth parked behind a 7-Eleven at Saticoy and Fallbrook. Appellant and Martinez exited.

Chief Petty Officer James Kluber (Kluber) parked under a light in front of the Saticoy-Fallbrook 7-Eleven, entered, bought cigarettes, and was returning to his car when he saw two young men walk toward him. One of them veered off and the other asked Kluber what time it was. Kluber ignored him, opened his car door, and was half inside when the man repeated the question. Kluber told him the time—it was about 10:30 p.m.—and the man demanded his money. Kluber looked up, saw a dark .3 8-caliber revolver tucked into the man’s pants, and froze. Then he got out, removed his wallet, and put five $1 bills on his car hood. The robber grabbed them and he and his companion ran off, disappearing into an alley.

Kluber called 9-1-1 from the 7-Eleven and described the robber as a five-foot, six-inch Latino with a shaved head wearing baggy clothes who looked sixteen years old. Kluber identified appellant from his photograph, at a live lineup, and at trial.

After robbing Kluber, appellant and Martinez ran through the alley, jumped into the pickup, and Murth “floored it”—leaving the scene. When Murth learned appellant had gotten only $4 or $5 he said “this is crazy” and drove back to his apartment. The alcohol had mostly worn off and Murth told appellant and Martinez that he was done for the evening. They said they wanted to continue so Murth gave them his truck keys and the two of them left.

Martinez drove east on Roscoe toward DeSoto.

Gerald McNally (McNally),⁴ a long-haired, 32-year-old film producer, had just arrived in the Canoga Park area and had not unpacked his suitcases. He left them in his apartment near Roscoe and DeSoto and walked to an automated teller machine (ATM). At 11:02 and 11:03 p.m. he made two withdrawals, $200 and $300. He put $100 in his coat pocket, walked to an apartment building at 20951 Roscoe, and approached Gerardo Acosta (Acosta) who was standing outside. He asked Acosta about buying cocaine and Acosta began walking with McNally west toward Variel where Acosta’s seller lived.

Appellant and Martinez saw the tall Caucasian man (McNally) approach Acosta and saw them walk off together. Appellant, who knew Acosta, told Martinez to let him out. Appellant joined Acosta and McNally as Martinez drove past them, turned on Variel and parked.

When Martinez saw the three men reach Variel he got out and asked appellant, “What’s going on?” Appellant replied, “Hold on . . .it will only be a minute.”

Acosta told McNally to wait at the comer. Acosta and appellant then crossed the street and went to an apartment building. Appellant remained outside while Acosta entered and started up the stairs.

Martinez saw appellant join McNally, talk to him briefly, and then jump back. When McNally tried to grab appellant, he jumped back again. Appellant then extended his arm toward McNally and Martinez heard one gunshot. No one else was near them. McNally started to run and then fell.

Acosta continued up the stairs and knocked on his seller’s door but was told to leave because someone had been shot. Acosta left the building, saw McNally’s body, remembered that McNally had money, found a $100 bill in McNally’s pocket, and walked away with it.

After appellant shot McNally he ran to the white pickup, jumped in, and explained—when Martinez asked him what had happened—that he was going to “jack” the dude.

As Martinez maneuvered the white pickup away from the curb he left the lights off. Ahead he saw a reddish Camaro. When it turned, Martinez turned his lights on.

Hovik Adamiyekteh (Adamiyekteh), driving his brownish red Camaro, had just dropped off a friend near Roscoe and Variel when he heard a gunshot, saw a Caucasian guy with long hair take a couple of steps and fall down. He then noticed a white pickup without lights. When Adamiyekteh turned a comer, the pickup’s lights went on.

Martinez drove to Murth’s apartment. Appellant handed him a bullet casing and told him to get rid of it. Martinez wiped it off and threw it into Murth’s dumpster.

When Martinez and appellant entered Murth’s apartment they seemed “frantic.” Appellant told Murth “he might have shot and killed somebody” and showed Murth that two bullets were missing from his revolver. After about 10 minutes appellant and Martinez left. Murth saw appellant discard the revolver in a garbage can by the apartment’s laundry room. Later, when Murth looked for the gun, it was gone.

When appellant and Martinez left Murth’s apartment they walked to the abandoned Cafe Romantique. Genessa was there, asleep. Appellant woke her and told her what had happened. He said, “Baby, I made a mistake.” He also told her he had shot “this white fool” at Variel and Roscoe after he had put up a fight.⁵

About a week later Acosta saw appellant and asked him what had happened “that night.” Appellant laughed.

Robbery-homicide Detective Pietrantoni and his partner, Detective Henry, investigated the murder of McNally. They arrived at the scene about 3 a.m., saw the deceased near a tree by the comer of Roscoe and Variel, recovered ATM receipts and $400 from his person, and went to his apartment. Although they interviewed scores of people, none admitted seeing the shooting. The detectives had no suspects.

Later in December 1993, some days after the murder, Martinez called Narcotics Detective Buscarino. Martinez had worked for Detective Buscarino as a narcotics informant and Martinez trusted him. In January 1994, when he returned from vacation, Detective Buscarino met with Martinez. Martinez told him he had “witnessed” a murder in December at Roscoe and Variel. Detective Buscarino did not attempt to elicit details from Martinez. Instead, he confirmed there had been such a murder, contacted the investigating officers, and told them of Martinez.

Detectives Pietrantoni and Henry interviewed Martinez. He told them the details of the December 9 burglary and the December 12 robberies, attempted robberies, and murder. He identified appellant, Murth, Genessa, and Petersen.

The detectives went to the abandoned restaurant and recovered a spent .38-caliber bullet.

A ballistics expert (George Stanley) determined that both the bullet that killed McNally and the bullet recovered from the abandoned restaurant could have been fired from a .38-caliber Smith and Wesson revolver. Although he could not state the bullets were fired from the same gun, the expert testified they had the same number of lands and grooves.

In early January 1994, appellant, Genessa, Murth, and Martinez were arrested.

Murth was charged with and pleaded guilty to the December 12 robberies. The district attorney made no deals with him.

A burglary petition was filed against Genessa and sustained.

Martinez was initially a codefendant of appellant’s. They were held to answer on the same charges and arraigned on the same charges in superior court. Prior to trial, Martinez, as part of a plea bargain, pleaded guilty to all charges (including the attempted robbery of Gibbons) except the murder of McNally, in exchange for a 10-year, 8-month maximum sentence. He was required, as part of the bargain, to testify truthfully at appellant’s trial and would be sentenced after that trial.

Discussion

I

Appellant Contends There Is Insufficient Evidence to Corroborate Accomplice Martinez’s Testimony Concerning the Murder and Attempted Robbery of Victim McNally

Although Martinez was an accomplice to all the charged offenses, appellant’s contention is limited to those involving the murder and attempted robbery of McNally. As to those charges only appellant argues the corroboration of Martinez’s testimony was insufficient.

The accomplice corroboration requirement is statutory. Section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

Corroborating evidence may be entirely circumstantial (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v. Zapien (1993) 4 Cal.4th 929, 982 [17 Cal.Rptr.2d 122, 846 P.2d 704]). “ ‘ “Such evidence ‘may be slight and entitled to little consideration when standing alone.’ ” ’ ” (People v. Rodrigues, supra, 8 Cal.4th at p. 1128; People v. Fauber (1992) 2 Cal.4th 792, 835 [9 Cal.Rptr.2d 24, 831 P.2d 249].) “It need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (Id. at p. 834; People v. Bunyard (1988) 45 Cal.3d 1189, 1206 [249 Cal.Rptr. 71, 756 P.2d 795].)

We find the following evidence more than sufficient to corroborate accomplice Martinez’s testimony that appellant murdered and attempted to rob McNally: (1) Acosta’s testimony that when he entered the apartment building moments before the victim was shot, appellant was only a short distance from the victim; (2) Acosta’s testimony that after the shooting appellant apparently fled (§ 1127c; CALJIC No. 2.52); Acosta’s testimony that, a week after the murder, when he asked appellant what happened that night, appellant “laughed”; (3) testimony the victim was killed by a .38-caliber bullet and appellant possessed a stolen .38-caliber weapon; (4) evidence the fatal bullet had the same markings as the bullet recovered from the abandoned restaurant; (5) Murth’s testimony⁶ appellant said “he might have shot and killed somebody”; (6) Murth’s testimony that appellant discarded the .38-caliber revolver in the trash can—and then it was missing; (7) Genessa’s testimony⁷—and extrajudicial statements admitted for their truth-—that appellant said he had shot “this white fool”; (8) Adamiyekteh’s testimony he saw a white pickup flee the murder scene; and (9) proof appellant committed three robberies or attempted robberies earlier that same evening using the same white pickup and having the same coperpetrator, Martinez. (People v. Haston (1968) 69 Cal.2d 233, 246 [70 Cal.Rptr. 419, 444 P.2d 91]; People v. Comstock (1956) 147 Cal.App.2d 287, 298 [305 P.2d 228] [“Proof that a defendant committed other recent and similar offenses tending to show a consistent plan or method of misconduct is admissible to prove the particular crime charged. [Citation.] Such evidence may corroborate the testimony of an accomplice.”].)

II

Instructional Error Claims

A. Reasonable Doubt

Appellant makes the familiar claim that omission of “moral certainty” from the reasonable doubt instruction (CALJIC No. 2.90) was prejudicial error. We disagree.

Even ««modified, with the antiquated and confusing phrase “moral certainty” retained, the Ünited States Supreme Court held our standard reasonable doubt instruction constitutional. (Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583, 114 S.Ct. 1239].)

Mindful of the high court’s criticism of the phrase “moral certainty,” our State Supreme Court made this pointed suggestion to trial courts: “It thus seems that trial courts might, in the future, safely delete the following phrases in the standard instruction: ‘and depending on moral evidence,’ and ‘to a moral certainty.’ ” (People v. Freeman (1994) 8 Cal.4th 450, 504 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.4th 888].)

We cannot say that by faithfully following the explicit direction of our Supreme Court, the trial court erred.

B. Omission of CALJIC No. 5.16 (Forcible and Atrocious Crime—Defined)

Almost entirely relying upon Martinez’s testimony that appellant had “jumped back” and then when McNally tried to grab him, appellant jumped back again—appellant claimed the shooting of McNally was in self-defense or in “unreasonable” self-defense.

The trial court instructed on both (CALJIC Nos. 5.10 [Resisting Attempt To Commit Felony], 5.12 (1989 rev.) [Justifiable Homicide In Self-Defense], 5.17 (1994 rev.) [Actual But Unreasonable Belief In Necessity To Defend—Manslaughter], 5.54 [Plea Of Self-Defense May Not Be Contrived]).

Appellant’s only contention concerning these instructions is one of them (CALJIC No. 5.10)⁸ used the terms “forcible and atrocious crime” and it was prejudicial error to omit the instruction (CALJIC No. 5.16)⁹ which defined these terms. The contention is meritless.

Instructions are judged in their entirety, not in isolation. (People v. Wilson (1992) 3 Cal.4th 926, 943 [13 Cal.Rptr.2d 259, 838 P.2d 1212].) The multiple self-defense instructions fully and correctly informed the jury about both self-defense and “unreasonable” self-defense. CALJIC No. 5.10 was surplusage, added nothing to the other instructions, and should not have been given. If appellant wanted its terms “forcible” and (the antiquated) “atrocious” clarified, he had a duty to request such clarification. (People v. Smith (1992) 7 Cal.App.4th 1184, 1188 [9 Cal.Rptr.2d 491].) He did not.

Disposition

The judgment is affirmed.

Johnson, J., and Woods, J., concurred.

1 Although Petersen testified he had earlier evicted Martinez, Martinez disagreed.

2 Gibbons was unable to identify appellant as the attempted robber. The jury hung on this count (count VI).

3 Martinez denied making the statement and was unsure whether or not Murth may have made the statement.

4 The amended information spells the victim’s name both McNally and McNalley. The reporter’s transcript spells it McNally. We adopt that spelling.

5 Genessa claimed she did not remember appellant making these statements or that she had told the police appellant had made them. A tape recording of her statements to the police was played to the jury.

Genessa admitted she loved appellant, had been pregrant by him, and would marry him if she could.

6 There is no claim that Murth was an accomplice to the murder and attempted robbery of McNally.

7 Genessa was an accomplice only to the December 9 burglary.

8 The instruction reads: “Homicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime.” (CALJIC No. 5.10.)

9 The instruction reads: “[A forcible and atrocious crime, as the term is used in these instructions, is any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to instill in [him] [her] a reasonable fear of death or great bodily injury.] [<1 [[Murder] [Mayhem] [Rape] [Robbery] is a forcible and atrocious crime.]” (CALJIC No. 5.16)