Opinion
No. CIV S-07-2435 GEB DAD P.
November 28, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition.
Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require."See Rule 8(c), Fed.R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's November 13, 2007 application to proceed in forma pauperis is granted;
2. Respondents are directed to file a response to petitioner's habeas petition within thirty days from the date of this order.See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter;
5. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General; and
6. Petitioner's November 13, 2007 request for appointment of counsel is denied.
Exhibit
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237.INTRODUCTION
Appellant appeals his conviction, following jury trial, of attempted murder, shooting at an inhabited motor vehicle, two counts of aggravated assault, street terrorism, and possession of a firearm by a felon.
Because substantial evidence was introduced tending to prove that, at most, the attempted homicide was an act in the heat of passion or prompted by a sudden quarrel, the court erred in failing to instruct the jury, sua sponte, on attempted voluntary manslaughter. (Argument I.)
Because the evidence tended to establish two discrete incidents of assault with a semiautomatic handgun upon the two victims, failure to give a unanimity instruction (CALJIC No. 17.01) was prejudicial error. (Argument II.)
Because the evidence failed to establish that appellant had suffered a prior felony conviction rather than merely a misdemeanor conviction, his conviction of possession of a firearm by a convicted felon must be reversed. (Argument III.)
STATEMENT OF THE CASE
By information filed on July 14, 2003, as amended by interlineation on October 29, 2003, and November 15, 2003, and the later striking of certain allegations on the People's motion (C.T. pp. 155, 196, 197), defendant and appellant Ricky GONZALES was charged with commission of the following offenses: Count 1 — attempted murder of Angel Roblero, in violation of Penal Code sections 664/187, subdivision (a), with the additional allegation that appellant personally used and discharged a handgun, within the meaning of Penal Code section 12022.53, subdivision (c); Count 2 — shooting at an occupied motor vehicle, in violation of Penal Code section 246; Count 3 — shooting at an inhabited dwelling, in violation of Penal Code section 246; Count 4 — assault with a semi-automatic firearm upon Angel Roblero, in violation of Penal Code section 245, subdivision (b); Count 5 — assault with a semi-automatic firearm upon Fabian Perez, in violation of Penal Code section 245, subdivision (b); Count 6 — street terrorism, in violation of Penal Code section 182.22, subdivision (a); and Count 7 — possession of a firearm by a felon, in violation of Penal Code section 12021, subdivision (a)(1).As to all counts but 6, it was alleged that the offense was committed for the benefit of, at the direction of, or in association with any criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1), and that the offenses were committed while appellant was released from custody on bail on another offense, within the meaning of Penal Code section 12022.1. As to counts 4 and 5, it was alleged that appellant personally used a firearm, within the meaning of Penal Code section 12022.5, subdivision (a). (C.T. pp. 23-30,155, 196, 197) Appellant was duly arraigned, pleaded not guilty, and denied the enhancing allegations.
Jury trial commenced on October 30, 2003. (C.T. p. 170.) Trial of the Penal Code section 12022.1 enhancement was bifurcated and jury waived thereon. (C.T. p. 155.) At the conclusion of the presentation of evidence, appellant's motion pursuant to Penal Code section 1118.1 was granted as to count 3, and denied as to the remaining counts. (R.T. p. 388; C.T. p. 196.) On December 3, 2003, the jury returned its verdicts, finding appellant guilty on all counts, and finding all charged enhancements submitted to the jury to be true. (C.T. pp. 201-202, 203-216.)
At the sentencing hearing on January 23, 2004, probation was denied. The "on bail" enhancement was stricken. Appellant's sentence in this matter was ordered to run consecutive to the sentence the court imposed in San Joaquin County Superior Court No. MF027267A (appeal currently pending in this Court as Case No. C046229).
Because of similarity of the issues, appellant's arguments I and III herein are essentially the same as in that appeal, although Argument I is based upon a different set of facts.
On counts 4 and 5, appellant was sentenced on each to consecutive terms of 2 years (1/3rd the midterm) plus 3 years, 4 months (1/3 the midterm on the gang enhancement), or five years and four months on each count, and on count 7, appellant was sentenced to 8 months (1/3rd the midterm), for a total determinate term of 11 years, 4 months. On count 2, appellant was sentenced to 15 years to life. (C.T. pp. 402-404.)
Sentence was imposed and stayed on counts 1 and 6, and on the use enhancement on counts 4 and 5.
STATEMENT OF FACTS
As the rules of appellate review require, where the prosecution prevailed, its evidence is presented as "the facts." As is required, any conflicts in the evidence have been resolved in favor of the prevailing party. (People v. Johnson (1980) 26 Cal.3d 557, 578; In re Pratt (1999) 69 Cal.App.4th 1294, 1315, fn. 17; In re Roark (1996) 48 Cal.App.4th 1946, 1948, fn. 3.)
Roblero, who was furious, wanted revenge. (R.T. p. 276.) He got into his car and started driving in a westerly direction, looking for the men. Perez put a sledge hammer head in the car. (R.T. pp. 300, 304, 339.) Roblero kept veering into the opposite lane to see ahead, and spotted the car, a Saturn, also heading west. The Saturn u-turned, headed eastbound, and collided with his car (R.T. pp. 278, 280, 340, 341.) The two cars were momentarily stuck together, when Roblero heard shots being fired and ducked. (R.T. p. 280.) He floored his car, which broke loose and careened into the yard of a residence, breaking the fence. (R.T. pp. 284-285.) As soon as he could get the car moving, he went after the Saturn/He spotted the men exiting the car on Poplar and saw two of them jump a fence. (R.T. pp. 286, 292, 305.) He figured they were trying to get to Rocko's Bar, so he was heading in that direction when he was stopped by the police. (R.T. pp. 293-294.)
James Carpenter, who lived on the 800 block of Poplar, was outside his residence when he saw Roblero, driving his car down the street, screeching his brakes and yelling "They got a gun." (R.T. pp. 226, 227.) Carpenter saw six men get out of a parked car which came from the opposite direction. Appellant was the driver of that vehicle, and was holding some clothing. The men wanted to go into his house, but he refused them entry. All then ran southbound down Poplar. (R.T. pp. 226, 229-231.)
Roblero was stopped by the police near Poplar and Argonaut. His car, a Chevy El Camino, had fresh damage on the driver's side front end, and gouge marks consistent with bullets. (R.T. pp. 50, 52-54) The other vehicle which Roblero indicated was involved, a silver Saturn 4-door, was found parked in front of 750 Poplar, a couple of hundred yards from Roblero's car, with fresh damage behind the driver's side rear door, and a flat left rear tire. (R.T. pp. 55, 56.) Paint on that vehicle matched the color of Roberlo's vehicle. (R.T. p. 58.)
Two .25 caliber silver shell casings were found in the eastbound traffic lane just east of the residence at 650 West Alameda, and a third casing was found on the south sidewalk. (R.T. p. 61.) The residence at that address had what appeared to be a bullet hole through the garage door. (R.T. pp. 61, 65-66.) Debris in the gutter in front of the residence matched the Saturn's color and included a piece of plastic from the Saturn and the head of a sledgehammer. (R.T. pp. 68, 69.)
Robert Jiminez resided at 720 Poplar in Manteca. At 5:00 p.m., he was in his backyard when Dwayne Harris jumped the fence into the yard, handed Jiminez a white shirt, and disappeared over the back fence. (R.T. pp. 210-211.) A few minutes later, appellant and another person attempted to jump the fence, and Jiminez told them not to. (R.T. p. 214, 221, 222.)
Because of a radio call that suspects were observed climbing fences, Officer Steve Schuler of the Manteca police department parked his car at the intersection of Argonaut and Main, and observed a male black adult run southbound from between two buildings into the street, and get into a black Cadillac. Officers stopped the Cadillac. The driver was Timothy Volk, a documented member of the Norteno gang, and the person Schuler had seen enter it was Harris. (R.T. pp. 98, 100.)
Police found a .25 caliber semiautomatic Ravens Arms pistol wrapped in a size 3X t-shirt in the backyard of 720 Poplar. It was placed there by Jiminez after the police told him they suspected he had the gun. (R.T. pp. 108, 111, 122, 218-219.) Jiminez testified he was given it by Harris. That weapon was tested and found to have fired the cartridge cases found at the scene of the incident. (R.T. pp. 137-138.)
Shortly after 5:00 p.m., appellant and another male came into Chubby's Restaurant on North Main. An off-duty Stockton Port police officer in the restaurant, noting that the two appeared nervous and agitated, and seeing a Manteca police unit head past, called the Manteca dispatch. (R.T. pp. 144-146, 151, 153.)
Appellant, in custody, denied any knowledge of or being in the area of the shooting, and said he did not know Roblero. (R.T. pp. 247-248.)
Shawn Cavin of the Manteca Police Department, qualified as a gang expert. (R.T. pp. 564-159.) He testified that Nortenos is the most predominant Northern California gang, having a common sign, symbol and color (red). (R.T. pp. 160-161.) Surenos, a primarily Southern California gang, is its rival. (R.T. p. 162.) Nortenos' primary purpose is the commission of a number of crimes, including assaults, auto theft, robbery, burglary, and drug sales. (R.T. p. 170.) Through Cavin, the police introduced evidence of the two predicate offenses upon which they relied: appellant's conviction of violation of Vehicle Code section 10851 (People's Exhibit 30; C.T. pp. 202.4-202.10; R.T. pp. 172-173) and another Norteno gang member's conviction of burglary. (R.T. pp. 170-171.)
In gang parlance, a shot caller is one who can get others to do things. (R.T. p. 179.) In Cavin's opinion, appellant was a shot caller in Nortenos, and Roblero was a shot caller in Surenos. (R.T. pp. 180, 181.) Cavin also identified Fabian Perez as a documented Sureno. (R.T. p. 182.) In Cavin's opinion, appellant was an active participant in a criminal street gang on May 14, 2003, committing a violent crime to enhance his reputation and respect by taking down a "shot-caller" of the rival gang, which was done for the benefit of, at the direction of, or in association with the criminal street gang. (R.T. pp. 180, 181-182.)
SECTION 1 ARGUMENS 1, 2, AND 3
TABLE OF AUTHORITIES Page Cases Carella California 491 U.S. 263 Chapman California 386 U.S. 18 25 College Hospital Inc Superior Court 8 Cal.4th 704 18 Hopkins Reeves 524 U.S. 88 In re Jose R. 137 Cal.App.3d 269 In re McCartney 64 Cal.2d 830 In re Pratt 69 Cal.App.4th 1294 6 In re Roark 48 Cal.App.4th 1946 6 In re Winship 397 U.S. 358 People Bacigalupo 1 Cal.4th 103 15 People Barton 12 Cal.4th 186 12 People Beardslee 53 Cal.3d 68 People Berry 18 Cal.3d 509 People Birks 19 Cal.4th 108 12 16People Borchers 50 Cal.2d 321 People Breverman 19 Cal.4th 142 11-17 People Brooks 185 Cal.App.3d 687 19-20 People Carrera 49 Cal.3d 291 People Ceja 26 Cal.App.4th 78 18 People Claborn 224 Cal.App.2d 38 People Coad 181 Cal.App.3d 1094 People Deletto 147 Cal.App.3d 458 People Diedrich 31 Cal.3d 263 People Edwards 39 Cal.3d 107 People Eilers 231 Cal.App.3d 288 People Flannel 25 Cal.3d 668 People Flood 18 Cal. 4th 470 16 23 24People Glee 82 Cal.App.4th 99 28 People Glenn 229 Cal.App.3d 1463People Guiuan 18 Cal.4th 558 28 People Hamilton 33 Cal.2d 45 People Haynes 61 Cal.App.4th 1282 23 People Herron 62 Cal.App.3d 643 People Hines 15 Cal.4th 997 14 People Hood 1 Cal.3d 444 People Iverson 26 Cal.App.3d 598 People Johnson 26 Cal.3d 557 People Koontz 27 Cal.4th 1041 16 18People Logan 175 Cal. 45 People Martinez 62 Cal.App.4th 1454 28 People Maury 30 Cal.4th 342 22 People Millwee 18 Cal.4th 96 18 People Montes 74 Cal.App.4th 1050 15 People Morrison 228 Cal.App.2d 707 People Municipal Court (Kong) 122 Cal.App.3d 176 People Nero 19 Cal.App.3d 904 People Nguyen 54 Cal.App.4th 705 28 People Ochoa 19 Cal.4th 353 11 12 16People Riel 22 Cal.4th 1153 23 People Russo 25 Cal.4th 1124 21-24 People Santamaria 8 Cal.4th 903 24 People Sedeno 10 Cal 3d 703 People Sullivan 215 Cal.App.3d 1446 People Sutherland 17 Cal.App.4th 602 22 People Thompson 193 Cal.App.2d 620 People Watson 46 Cal.2d 818 People Wickersham 32 Cal.3d 307 16-17 Richardson United States 526 U.S. 813 Robert L. Superior Court (People 30 Cal.4th 894 27 Rose Clark 478 U.S. 570 Schad Arizona 501 U.S. 624 Strickland Washington 466 U.S. 668 Sullivan Louisiana 508 U.S. 275 United States Gaudin 515 U.S. 506 United States Sayetsitty 107 F.3d 1405 Yates Evatt 500 U.S. 391 Constitutional Provisions I 15 24 I 16 24 6th 5th 14th Statutes Miscellaneous v. (1989) 24 v. (1967) 17, , . v. (1994) v. (1998) 17 (1982) 15 (1966) 12 (1999) (1996) (1970) 24 v. (1991) v. (1995) v. (1991) 22 v. (1976) 13 v. (1998) , v. (1958) 15 v. (1998) v. (1986) 16, v. (1989) 23 v. (1994) v. (1964) 15 v. (1986) 12 v. (1983) 23 v. (1982) 21, 25 v. (1985) 16, 19 v. (1991) 16 v. (1979) 11, 13, 15 v. (1998) , , v. (2000) v. (1991) 15, 17 v. (1998) v. (1948) 28 v. (1998) v. (1976) 27 v. (1997) v. (1969) 12 v. (1972) 11 v. (1980) 6 v. (2002) , v. (1917) 15 v. (1998) v. (2003) v. (1998) v. (1999) v. (1964) 12 v. (1981) 27 v. (1971) 15 v. (1997) v. (1998) , , v. (2000) v. (2001) v. (1994) , v. (1974) 12, 18, 23 v. (1989) 11 v. (1993) v. (1961) 12 v. (1956) 17, 25 v. (1982) 12, v. (1999) 23 v. ) (2003) v. (1986) 17 v. (1991) 23 v. (1984) 18 v. (1993) 17, 19 v. (1995) 17, 19 v. (9th Cir. 1997) 17 v. (1991) 24 California Constitution, art. , § California Constitution, art. , § United States Constitution, Amend. 17, 24 United States Constitution, Amend. 17 United States Constitution, Amend. 17, 23 Penal Code section 17 17 Penal Code section 17, subdivision (a) 17 Penal Code section 17, subdivision (b) 17 Penal Code section 182.22, subdivision (a) 3 Penal Code section 186.22, subdivision (b)(1) 3 Penal Code section 187, subdivision (a) 3 Penal Code section 192, subdivision (a) 12 Penal Code section 245, subdivision (b) 3 Penal Code section 246 3 Penal Code section 664 3 Penal Code section 1118.1 4 Penal Code section 1237 1 Penal Code section 12021, subdivision (a)(1) 3 Penal Code section 12022.1 4 Penal Code section 12022.5, subdivision (a) 4 Penal Code section 12022.53, subdivision (c) 3 Vehicle Code section 10851, subdivision (a) 26, 27 CALJIC No. 12.63 26 CALJIC No. 17.01 2, 22 1 Witkin Epstein, Cal. Crim. Law (3d ed. 2000), Crimes Against the Person, § 213, p. 824 12 ARGUMENT I FAILURE TO INSTRUCT THE JURY ON ATTEMPTED VOLUNTARY MANSLAUGHTER SUA SPONTE, AN OBLIGATION WHICH THE PARTIES CANNOT WAIVE, WAS REVERSIBLE ERROR DEPRIVING APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, DUE PROCESS, AND TO HAVE THE PROSECUTION PROVE EACH NECESSARY FACT BEYOND A REASONABLE DOUBT A. The court erred in failing to give instructions on attempted voluntary manslaughter sua sponte .The general rules in this area are well established, and need to be but briefly set forth. It is the duty of the trial court in a criminal case to instruct the jury on its own motion on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Ochoa (1998) 19 Cal.4th 353, 422.) "The general principles of law governing the case are those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury's proper consideration of the case." (People v. Iverson (1972) 26 Cal.App.3d 598,604; accord, People v. Flannel (1979) 25 Cal.3d 668, 681; People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) The obligation to instruct on the general principles of law relevant to the issues "has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present." (People v. Breverman, supra, 19 Cal.4th at p. 154.) Thus, where there is evidence which could absolve the defendant of guilt of a greater offense but would support a finding of guilt of a lesser offense, an instruction on a lesser included offense must be given sua sponte. (People v. Birks (1998) 19 Cal.4th 108, 118; People v.Hood (1969) 1 Cal.3d 444, 449; People v. Morrison (1964) 228 Cal.App.2d 707, 712.) Manslaughter is a lesser included offense under the charge of murder. (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Barton (1995) 12 Cal.4th 186, 200;People v. Ochoa, supra, 9 Cal.4th at p. 422; People v. Wickersham (1982) 32 Cal.3d 307, 326; In re McCartney (1966) 64 Cal.2d 830, 831; People v. Thompson (1961) 193 Cal.App.2d 620,627.)
Manslaughter is voluntary when the killing is upon a sudden quarrel or heat of passion, based upon adequate provocation to negate malice and reduce an intentional killing to manslaughter. (Pen. Code, § 192, subd. (a); People v. Coad (1986) 181 Cal.App.3d 1094, 1106.)
Provocation may be anything which arouses great anger, and can come from either acts or words. (1 Witkin Epstein, Cal. Crim. Law [3d ed. 2000], Crimes Against the Person, § 213, p. 824.) The only question is whether the provocation would arouse a heat of passion in a reasonable person. To satisfy the reasonable person element, the particular heat of passion must be due to "sufficient provocation." (People v. Sedeno (1974) 10 Cal 3d 703, 719, overruled on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, and People v. Breverman, supra, 19 Cal.4th p. 78, fn. 26.) However, "there is no specific type of provocation required by [Penal Code] section 192." (People v.Berry (1976) 18 Cal.3d 509,515.)
An intentional, unlawful homicide is "upon a sudden quarrel or heat of passion" (citation), and is thus voluntary manslaughter , if the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an "`ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'" (Citations.) "`[N]o specific type of provocation [is] required . . .'" (Citations.) Moreover, the passion aroused need not be anger or rage, but can be any ""`[v]iolent, intense, high-wrought or enthusiastic emotion'"" (Citations) other than revenge. (Citation.) (People v. Breverman, supra, 19 Cal.4th at p. 163.)
There was substantial evidence in this case that two separate altercations were involved: the first, when Harris attempted to start a fight with Roblero, who had been taunting him in the past and who referred to him as "Nigger Dwayne" (R.T. pp. 266, 268), at which point appellant brandished a weapon, and after a futile attempt to get into the residence, left (R.T. pp. 271, 276); the second, when appellant and his companions were heading away from Roblero's home and Roblero gave chase and spotted them. Only then did the Saturn turn around and head in the direction of Roblero's vehicle. (R.T. pp. 339, 340.)
The location of debris in the gutter on the south side of the roadway (R.T. p. 75), the location of damage to both vehicles (the front end of Roblero's vehicle and the back side portion of the Saturn [R.T. pp. 50-54, 55-56]), Roblero's testimony that the collision occurred when he veered out (R.T. pp. 278, 280), his admission that he may have swerved "a little bit" (R.T. pp. 358-359) the location of the shell casings in the eastbound traffic lane and on the south sidewalk (R.T. p. 61), and the lack of any physical evidence to support Roblero's description of the accident as involving the Saturn swerving into his in the westbound lane (R.T. p. 369), all provides substantial evidence not that the Saturn drove into Roblero's car, but exactly the opposite, that Roblero veered his car into the eastbound traffic lane, causing the accident. Only when the two cars were stuck together, in an accident which substantial evidence indicated was Roblero's making, were shots fired.
With such evidence in the record that shots were fired in a sudden quarrel or heat of passion, an instruction on voluntary manslaughter is required. (People v. Hines (1997) 15 Cal.4th 997, 1052.) Whether appellant was acting under a heat of passion or sudden quarrel provocation, whether objectively that provocation would arouse the passion of the ordinary reasonable person and whether sufficient time had passed for reason to return, are all questions which it has long been recognized are for the jury to determine. (People v. Nero (1971) 19 Cal.App.3d 904, 912; People v. Borchers (1958) 50 Cal.2d 321, 329; People v. Logan (1917) 175 Cal. 45, 49.)
If there was evidence substantial enough to merit consideration. the delivery to the jury of instructions on voluntary manslaughter was required. (People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Bacigalupo (1991) 1 Cal.4th 103, 125; People v. Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12.) "Substantial evidence" in this context is "`evidence from which a jury composed of reasonable [persons] could . . . conclude'" that the lesser offense, but not the greater, was committed. (Citations.) (People v. Breverman, supra, 19 Cal.4th at p. 162; People v.Glenn (1991) 229 Cal.App.3d 1463, 1465.) In this case, such evidence exists in the form of Roblero's admission that he was chasing after appellant, that he veered out into the eastbound lane, and that it was he who caused the collision — admissions that he committed an assault upon appellant with a deadly weapon, his automobile (People v. Montes (1999) 74 Cal.App.4th 1050, 1054; In re Jose R. (1982) 137 Cal.App.3d 269, 276, fn. 3; People v. Claborn (1964) 224 Cal.App.2d 38, 41), which prompted the shooting.
B. Even if appellant tactically did not request lesser included offense instructions, attempted voluntary manslaughter instructions must be given sua sponte .
Appellant's counsel, for tactical reasons, did not request an instruction on attempted voluntary manslaughter. (R.T. p. 411.) That did not relieve the court of its obligation to instruct on lesser included offenses even over the defendant's objection.
[R]egardless of the tactics or objections of the parties, or the relative strength of the evidence on alternate offenses or theories, the rule requires sua sponte instruction on any and all lesser included offenses, or theories thereof, which are supported by the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 154; accord, People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Birks, supra, 19 Cal.4th at p. 127; People v. Ochoa, supra, 19 Cal.4th at p. 422; People v. Eilers (1991) 231 Cal.App.3d 288, 292-295.)
As the court indicated in People v. Breverman, supra, 19 Cal.4th at p. 155: "Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense."
C. The error cannot be deemed harmless and requires a reversal.
It is reversible error, under the circumstances present in this case, to fail to instruct the jury on attempted voluntary manslaughter. (People v. Edwards (1985) 39 Cal.3d 107, 116;People v. Brooks (1986) 185 Cal.App.3d 687, 696.) The failure to instruct on all necessarily included offenses deprives a defendant of the constitutional right to have the jury determine every material issue presented by the evidence. (People v. Birks,supra, 19 Cal.4th at pp. 118, 121; People v. Wickersham, supra, 32 Cal.3d at p. 335; People v. Glenn, supra, 229 Cal.App.3d at p. 1467; see also Hopkins v. Reeves (1998) 524 U.S. 88 [ 118 S.Ct. 1895, 1901, 141 L.Ed.2d 76].) The failure to instruct the jury that an attempted killing in the heat of passion is attempted voluntary manslaughter violated appellant's federal constitutional rights to due process and to a jury trial and the requirement that the prosecution prove each fact necessary to constitute the crime charged beyond a reasonable doubt. (U.S. Const., 5th, 6th and 14th Amends.; Sullivan v. Louisiana (1993) 508 U.S. 275, 277 [ 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182]; United States v. Gaudin (1995) 515 U.S. 506, 510 [ 115 S.Ct. 2310, 132 L.Ed.2d 44]; United States v. Sayetsitty (9th Cir. 1997) 107 F.3d 1405, 1414; People v. Flood (1998) 18 Cal. 4th 470.)
Such error should be tested by the standard of Chapman v.California (1967) 386 U.S. 18 [ 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710]: before the court can hold it harmless, "the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Rose v. Clark (1986) 478 U.S. 570 [ 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460, 469].)
However, according to Breverman, such misdirection of the jury requires reversal whenever an examination of the entire record establishes a reasonable probability that the error affected the outcome, under the test for harmless error set forth in People v.Watson (1956) 46 Cal.2d 818. (People v. Breverman, supra, 19 Cal.4th at p. 165.) The Watson test requires "merely a reasonable chance" that the error affected the outcome, something "more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, citing both Watson andStrickland v. Washington (1984) 466 U.S. 668, 6983, 694, 697, 698.) That such a reasonable probability exists in this case is clear. There was substantial evidence of provocation when appellant's vehicle may have been deliberately hit by Roblero. Appellant had left the scene of the original confrontation, and was heading away from it when Roblero gave chase and then deliberately swerved into appellant's vehicle. The failure to instruct on heat of passion attempted manslaughter gave the jury no opportunity to consider the issue of that provocation negating malice, an issue as to which there was substantial evidence. By failure to instruct on manslaughter, appellant was denied full jury consideration of that lesser alternative to murder.
While the California Supreme Court has held that erroneous failure to instruct on a lesser included offense is not prejudicial where "the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions" (People v. Millwee (1998) 18 Cal.4th 96, 157; accord, People v. Koontz, supra, 27 Cal.4th at p. 1086; People v. Sedeno, supra, 10 Cal.3d at p. 721), here the failure to instruct on heat of passion manslaughter gave the jury no opportunity to consider the issue of that provocation negating malice, an issue as to which there was substantial evidence. (See People v. Ceja (1994) 26 Cal.App.4th 78, 86.) The only choice given the jury was to determine if the attempted homicide was murder, denying appellant any consideration of a lesser alternative to murder. Thus, failure to instruct on heat of passion attempted voluntary manslaughter effectively omitted an element of the offense and removed the issue of provocation negating malice from the jury's consideration. It is for the jury to decide whether the evidence has proven beyond a reasonable doubt a particular element of a crime. (United States v. Gaudin, supra, 515 U.S. at p. 513 [ 115 S.Ct. at p. 2315].) No matter how overwhelming the evidence supporting the existence of a particular element may seem to a court, it is for the jury to decide whether the element has been proven sufficiently to dispel all reasonable doubt. (Sullivan v.Louisiana, supra, 508 U.S. at p. 277 [ 113 S.Ct. at p. 2080].)
As above indicated, when we deal with instructional error, the error is generally deemed harmless "when the factual question posed by the omitted instruction was resolved adversely to the defendant under other, properly given instructions." (People v.Brooks, supra, 185 Cal.App.3d at p. 697; People v. Edwards,supra, 39 Cal.3d at pp. 116-117.) In this case, as in Brooks, the jury was instructed only on attempted murder.
There was no instruction to the jury to consider evidence of provocation in order to determine whether appellant, as an ordinary man of average disposition, committed the [attempted] homicide while acting out of [sufficient provocation].
Therefore, the factual question posed by the omitted instruction was not necessarily resolved adversely to defendant under other, properly given instructions. (Citation.) That being so, it cannot be said that the failure to give . . . instructions on voluntary manslaughter was harmless error; thus, appellant's conviction . . . must be reversed. (Citation.) (People v. Brooks, supra, 185 Cal.App.3d at p. 697.)
In this case, as in Brooks, for exactly the same reasons, the error cannot be deemed harmless and appellant's count 1 conviction must be reversed.
II AS TWO DISCRETE ACTS TENDING TO ESTABLISH AGGRAVATED ASSAULT UPON THE TWO VICTIMS WERE SHOWN BY THE EVIDENCE, THE FAILURE OF THE COURT TO DELIVER A UNANIMITY INSTRUCTION TO THE JURY WAS PREJUDICIAL ERROR The evidence tended to show two different acts which might have constituted an aggravated assault upon the counts 4 and 5 victims, Roblero and Perez. The prosecutor argued that the initial assault occurred when appellant "pulled out a gun, [and] assaulted the victims." (R.T. p. 481.) However, a second assault occurred when the gun was pointed at Roblero's car, a car in which Perez, according to Roblero, had to be present as it was Perez who threw the sledgehammer at appellant's vehicle. (R.T. p. 305.) Thus, in this case, there were two discrete acts, either of which could form the basis of an aggravated assault conviction if established beyond a reasonable doubt.In a criminal case, a jury verdict must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. (Ibid.; People v. Diedrich (1982) 31 Cal.3d 263, 281.)
Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo, supra, 25 Cal.4th at p. 1132.)
The requirement of unanimity as to the criminal act "is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." (People v. Sutherland (1993) 17 Cal.App.4th 602.) In order to assure the defendant that all jurors agree upon the same acts which comprise the basis for a conviction, CALJIC No. 17.01 was drafted. As here pertinent, it reads as follows:
The defendant is accused of having committed the crime of ____ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty [to Count ___], all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict.
That instruction is required whenever "jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Maury (2003) 30 Cal.4th 342, 423;People v. Beardslee (1991) 53 Cal.3d 68, 92.)
It has long been recognized that the court must instruct sua sponte on those general principles of law which are closely and openly connected with the facts before the court and which are necessary for the jury's consideration of the case. (People v.Sedeno, supra, 10 Cal.3d at p. 715.) That obligation encompasses the duty to give CALJIC No. 17.01 sua sponte when appropriate under the evidence. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8;People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)
The court's failure to give a unanimity instruction, sua sponte, involves the violation of several federal constitutional rights. It constituted misdirection of the jury rendering the trial fundamentally unfair in violation of appellant's federal due process rights. (People v. Flood, supra, 18 Cal.4th at p. 491; U.S. Const., 14th Amend.) It allows for a conviction upon a charge so broadly defined that it is fundamentally unfair, which is precluded by the Due Process Clause of the Fourteenth Amendment. (Schad v. Arizona (1991) 501 U.S. 624, 632-633 [ 111 S.Ct. 2491, 2497-2498, 115 L.Ed.2d 555] (plur. opn.); Richardson v. United States (1999) 526 U.S. 813, 819-820 [ 119 S.Ct. 1707, 1710-1711, 143 L.Ed.2d 985].) Only when there is no unanimity requirement as to the theory of guilty does the failure of a unanimity instruction pass constitutional muster. (People v.Santamaria (1994) 8 Cal.4th 903, 918-919.)
Such failing also constitutes improper lessening of the People's burden of proof, which requires that the People establish, beyond a reasonable doubt, an act upon which the jury can unanimously agree. (Carella v. California (1989) 491 U.S. 263, 266 [ 109 S.Ct. 2419, 105 L.Ed.2d 218, 222]; In re Winship (1970) 397 U.S. 358, 364 [ 25 L.Ed.2d 368, 375, 90 S.Ct. 1068, 1072].)
The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. [Citation.] Jury instructions relieving States of this burden violate a defendant's due process rights. [Citations.] Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases. (Carella v. California, supra, 491 U.S. at p. 265 [ 105 L.Ed.2d at p. 221].)
Such instructional error, lessening the People's burden of proof, violates the Sixth Amendment right to trial by jury as well as due process, and violates similar provisions in the California Constitution. (Yates v. Evatt (1991) 500 U.S. 391, 403-406 [ 114 L.Ed.2d 432, 446-450, 111 S. Ct. 1884.]; People v.Flood, supra, 18 Cal.4th at p. 481; Cal. Const., art. I, §§ 15, 16.)
Reversal is required in the absence of a unanimity instruction whenever, without it, some of the jurors may have believed the defendant guilty of one of the act while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific assault. (People v. Russo, supra, 24 Cal.4th at p. 1132; People v. Diedrich, supra, 31 Cal.3d at pp. 280-283.) In this case, there were some inherent weaknesses in the People's case as to each discrete act, so that whether aChapman or a Watson test is applied for this instructional error (see Argument I, ante), reversal is required. As to the first incident, there is little evidence that appellant did more than merely brandish the weapon, and no evidence that he, in fact, pointed it at anyone. Perez did not testify. According to Roblero, the gun "wasn't pointed at us" (R.T. p. 271), and, later, although Roblero could see the gun in the window "pointed at someone," in a house with multiple occupants (R.T. p. 276), it wasn't pointed at him. (R.T. pp. 273-274.) As to the second incident, there is a major conflict in the evidence concerning Perez' presence. Roblero spent some time testifying that he was dismayed that Perez refused to go with him (R.T. pp. 277,279), specifically testified that Perez did not go with him (R.T. p. 279), and yet testified that, it was Perez who threw the sledgehammer head (found at the scene of the collision) at the Saturn. (R.T. p. 305.)
Under these circumstances, it is clear that a reversal of appellant's conviction on counts 4 and 5 is required.
III AS APPELLANT HAD ONLY A MISDEMEANOR PRIOR CONVICTION, HIS PRESENT CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON MUST BE REVERSED
Appellant's conviction on count 7 of violation of Penal Code section 12021, subdivision (a)(1), possession of a firearm by a convicted felon, rests upon a jury finding that appellant's conviction of violation of Vehicle Code section 10851, subdivision (a) was a felony. The jury was erroneously instructed that, as a matter of law, conviction of automobile theft is the conviction of a felony (C.T. p. 261; CALJIC No. 12.63, as modified), and no evidence of any other conviction was introduced. In fact, appellant suffered a misdemeanor conviction.
The evidence upon which the People relied to establish appellant's conviction of violation of Vehicle Code section 10851 was People's Exhibit 30, which consists of a felony complaint alleging, inter alia, two violations of Vehicle Code section 10851, subdivision (a), counts 1 and 2 (C.T. pp. 202.5-202.8), a minute order dated 1/10/02 indicating a conditional plea of nolo contendere, the condition being "no state prison," and a six month jail term "top/bottom," with a dismissal of count 1 (C.T. p. 202.9), and another minute order dated 2/5/02 reflecting the dismissal of count 1, a grant of formal probation for 3 years, and the imposition of a 6 month term in County Jail, with a "Total Term" of "6 mos." (C.T. p. 202.10.)
A violation of Vehicle Code section 10851, subdivision (a), is punishable "by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment." (Veh. Code, § 10851, subd. (a).) Such an offense is referred to as a "wobbler," meaning "those offenses punishable either as felonies or misdemeanors, in the discretion of the court." (People v. Municipal Court (Kong) (1981) 122 Cal.App.3d 176, 179, fn. 3, quoted with approval in Robert L. v. Superior Court (People) (2003) 30 Cal.4th 894, 902.) It is the sentence which determines whether it is a misdemeanor or felony. (People v. Herron (1976) 62 Cal.App.3d 643, 647, fn 3.)
Penal Code section 17 defines the terms "felony" and "misdemeanor." Subdivision (a) of that section reads as follows:
A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.
Subdivision (b) of Penal Code section 17 refers to some offenses which are "punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail." These offenses are the wobblers. That subdivision specifies the circumstances under which a wobbler becomes a misdemeanor, and specifically includes "when the court imposes a punishment other than imprisonment in the state prison." "Section 17 makes clear that it is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor." (People v. Nguyen (1997) 54 Cal.App.4th 705, 711.) "Under Penal Code section 17, subdivision (b)(1), a felony is automatically converted to a misdemeanor `[a]fter a judgment imposing a punishment other than imprisonment in the state prison.'" (People v. Glee (2000) 82 Cal.App.4th 99, 102.)
As the court noted in People v. Martinez (1998) 62 Cal.App.4th 1454, 1464,
The necessary inference to be drawn from the language of section 17 of the Penal Code [is] that when a crime [is] punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. . . ."
In this case, the court imposed a punishment other than imprisonment in the state prison, specifically, a 6 month jail term with a period of probation. He stands convicted of a misdemeanor. (See People v. Hamilton (1948) 33 Cal.2d 45, 49, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 569, fn. 4 [where a defendant had previously been convicted of burglary and the sentence imposed for that crime was six months in the county jail, he stood convicted of a misdemeanor, not a felony].) In light thereof, his conviction of possession of a firearm by a felon cannot stand.
CONCLUSION
Reversal of the judgment of conviction on counts 1, 4 and 5 is required, in light of the instructional errors committed by the court; and reversal of the conviction on count 7 is required for failure of the evidence to establish a prior felony conviction.
SECTION 2 ARGUMENT 4
TABLE OF AUTHORITIES Page Cases Apprendi New Jersey 530 U.S. 466 Blakely Washington Chapman California 386 U.S. 18 9-10 Griffith Kentucky 479 U.S. 314 Neder United States 527 U.S. 1 10 O'Connor Ohio 385 U.S. 92 People Birks 19 Cal.4th 108 9 People Castellano 140 Cal.App.3d 608 4-5 People Chavez 26 Cal.3d 334 People DeSantiago 71 Cal.2d 18 People Saunders 5 Cal.4th 580 8 People Sengpadychith 26 Cal.4th 316 9 People Valladoli 13 Cal.4th 590 8 People Vera 15 Cal.4th 269 8 Ring Arizona 536 U.S. 584 3-4 Schiro Summerlin Sullivan Louisana 508 U.S. 275 Constitutional Provisions 6th Statutes Rules of Court v. (2000) 3, 5, 6, 9 v. (2004) 542 U.S. ___ 1-7, 9 v. (1967) v. (1987) 8 v. (1999) v. (1966) 9 v. (1998) v. (1983) v. (1980) 9 v. (1969) 9 v. (1993) v. (2001) v. (1996) v. (1997) v. (2002) v. (2004) 542 U.S. ___ 8 v (1993) 9 United States Constitution, Amend. 2, 6, 8 Penal Code section 1025 8 Penal Code section 1164 8 Penal Code section 1170 5 Penal Code section 1170, subdivision (b) 4 California Rules of Court, rule 4.420 5 California Rules of Court, rule 4.420, subd. (d) 5 California Rules of Court, rule 4.420, subd. (c) 5 California Rules of Court, rule 4.420, subd. (a) 4 California Rules of Court, rule 4.421 7 ARGUMENT 4 ARGUMENT IMPOSING THE UPPER TERM ON COUNT I VIOLATED APPELLANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTIONA. Introduction.
Appellant submits this ARGUMENT, which is limited to the effect of Blakely v. Washington (No. 02-1632 June 24, 2004) 542 U.S. ___ [ 124 S. Ct. 2531, 159 L.Ed. 2d 403, 2004 DJDAR 7581] (hereinafterBlakely) on this appeal.At the time of sentencing appellant herein, the lower court selected count I as the principal term and imposed the upper term of nine years. (C.T. p. 346; R.T. p. 692.) The reasons cited by the trial court for imposing the upper term were not factors found to be true beyond a reasonable doubt by the jury and are therefore impermissible because reliance on those factors deprived appellant of his right to a jury trial under the Sixth Amendment.
B. Blakely v. Washington.
In Blakely, the defendant pleaded guilty to kidnaping his estranged wife, and was subject to an absolute maximum term of 10 years. However, the standard range for his offense was 49 to 53 months. Washington law provided that a court could impose a sentence greater than the standard range (but still within the 10-year maximum) only if it found substantial and compelling reasons justifying an exceptional sentence. The statute provided a list of aggravating factors which could justify such a departure from the standard range and described the listed factors as illustrative rather than exhaustive. (Blakely, supra, 542 U.S. at p. ___ [2004 DJDAR at p. 7582.) The trial court imposed an exceptional sentence of 90 months — 37 months above the standard range — based upon the judge's finding that Blakely acted with deliberate cruelty, one of the enumerated aggravating factors.
The Supreme Court held that the trial court's use of that aggravating factor violated the rule explained in Apprendi v. NewJersey (2000) 530 U.S. 466 [ 120 S.Ct. 2348, 147 L.Ed.2d 435], entitling a defendant to jury determination of any fact that exposed a defendant to greater punishment than the maximum otherwise allowable for the underlying offense.
The Blakely majority (led by Justice Scalia) rejected the state's assertion that the relevant maximum was the 10-year cap for the offense involved in the case. Instead, the majority treated the top end of the standard range (53 months) as the relevant statutory maximum, because that was the greatest sentence Blakely could receive based solely on the facts admitted by his plea:
Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," [citation], and the judge exceeds his proper authority. (Blakely, supra, 542 U.S. at p. ___ [2004 DJDAR at p. 7582, emphasis in original.)
Drawing together the lessons of Apprendi, Ring v. Arizona (2002) 536 U.S. 584 [ 122 S.Ct. 2428, 153 L.Ed.2d 556] (which applied Apprendi to death-penalty aggravating factors), and Blakely itself, the majority commented:
Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact. (Blakely, supra, 542 U.S. at p. [2004 DJDAR at p. 7583], emphasis in original.)
Therefore, in essence, the only factors the judge is permitted to use to increase a sentence are those presented to the jury for its consideration and decision. If the jury does not find unanimously and beyond a reasonable doubt that those factors are true, the judge may not use them to increase a sentence.
C. The Application to California's Determinate Sentencing Law.
California statutes, court rules, and case law unequivocally provide that unless there is a finding of at least one aggravating circumstance, a court cannot impose the upper-term: When a judgment of imprisonment is to be imposed, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Penal Code section 1170, subdivision (b), emphasis added; see also, California Rules of Court, rule 4.420, subd. (a); cf., e.g.,People v. Castellano (1983) 140 Cal.App.3d 608, 614-615.) As with the standard range in Blakely, the mid-term is the presumptive sentence. And, as with the exceptional sentence in Blakely, a California court lacks statutory authority to impose an upper term unless it finds aggravating circumstances beyond the elements inherent in the offense itself.
The factors set forth in Penal Code section 1170 and rule 4.420 clearly violate the Apprendi mandate. The term of imprisonment that may be imposed based solely on the jury's verdict is the middle term. The court may not impose the upper term unless it finds that there are additional aggravating factors, and underApprendi and Blakely, those factors cannot be relied upon unless the jury has found them to be true beyond a reasonable doubt. However, under rule 4.420, subd. (d), the court is prohibited from relying on elements of the crime as factors in aggravation. Thus, the aggravating circumstances authorizing an upper term are almost necessarily facts beyond those determined by the jury's offense verdicts and enhancement findings (unless the court elects to strike an enhancement and instead use the enhancing facts to impose the upper term). (See rule 4.420, subd. (c).)
The Washington statute suffered the same fatal flaws as California's determinate sentencing law. Specifically, theBlakely court noted that under Washington law,
[a] judge may impose a sentence above the standard range [only] if he finds "substantial and compelling reasons justifying an exceptional sentence." (Citation.) The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. (Citation.) Nevertheless, "a reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." (Citation.) When a judge imposes an exceptional sentence, he must set forth findings of fact and conclusions of law supporting it. (Citation.) (Blakely, supra, 542 U.S. at p. ___ [2004 DJDAR at p. 7582].)
Thus in all pertinent respects, California's sentencing scheme suffers from the same defects as the Washington scheme that the Supreme Court struck down. In California, as in Washington, the trial court violates a defendant's Sixth Amendment rights when it imposes an aggravated sentence (the upper term) based on facts not found by a jury to be true beyond a reasonable doubt.
D. Appellant Was Deprived of His Sixth Amendments Rights.
Sentencing decisions typically involve two different kinds of determinations: findings of fact and the exercise of discretion or judgment as to the most appropriate sentence, often based on the findings of fact. Apprendi and Blakely appear to focus strictly on the right to jury determination of facts which expose a defendant to the possibility of a sentence greater than the maximum allowed by the jury's findings. The Apprendi/Blakely majority has no quarrel with judicial sentencing discretion, provided that jurors have made all the purely factual findings necessary to authorize a maximum sentence.
In appellant's case, the trial court relied on the criteria under California Rules of Court, rule 4.421, stating the following reasons to support imposition of the upper term (R.T. p. 692):
1. The crime involved great violence.
2. The victim, unarmed and alone, was particularly vulnerable.
3. Appellant induced others to participate in the commission of the crime and occupied a position of leadership or dominance of the other participants.
4. Appellant threatened witnesses and dissuaded a witness from testifying.
5. The manner in which the crime was carried out indicated planning and sophistication.
6. Appellant's record indicates he has engaged in violent conduct that indicates a serious danger to society.
7. Appellant's prior convictions are numerous and of increasing seriousness.
8. Appellant was on probation when the crime was committed, and his performance on probation was unsatisfactory.
None of the factors relied upon by the trial court to impose the upper term was found true beyond a reasonable doubt by the jury in appellant's case. It is not sufficient that the jury convicted of the offense; it must also find the aggravating facts to be true. As the Blakely opinion noted, "Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." (Blakely, supra, 542 U.S. at p. ___, fn. 8, emphasis in original.)
Blakely's application to appellant's case is unquestionable. Retroactivity is not an issue. When a decision of the Court results in a "new rule" the rule applies to all criminal cases still pending on direct review. (Griffith v. Kentucky (1987) 479 U.S. 314, 328 [ 107 S.Ct. 708, 93 L.Ed.2d 649]; in accord, Schiro v. Summerlin (June 24, 2004; 03-526) 542 U.S. ___, 04 DAR 7569, 2004 WL 1402732 at p. 3.)
Furthermore, no objection was required to preserve the issue for appeal. In several cases over the past decade, the California Supreme Court has held that a failure to object cannot waive certain fundamental constitutional rights, such as double jeopardy and the right to jury trial, even though that omission may forfeit appellate review of related state statutory claims. In People v. Saunders (1993) 5 Cal.4th 580, the court applied that distinction to a defendant's failure to object to the discharge of the jury before the adjudication of charged prior convictions. That omission forfeited the right to contest the premature discharge as a violation of the state statutory provisions requiring the same jury to determine both the currently charged crime and any alleged priors (Id. at pp. 589-592; Pen. Code, §§ 1025, 1164), but not the right to raise the more fundamental claims of double jeopardy and jury trial. (Accord, People v. Valladoli (1996) 13 Cal.4th 590, 606; People v. Vera (1997) 15 Cal.4th 269, 276-277.)
Because a Blakely claim contests the denial of the Sixth Amendment right to a jury trial on the aggravating factors necessary to expose a defendant to an upper term, it comes within the rule that lack of objection should not forfeit appellate review of a denial of this fundamental constitutional right.
Additionally, no objection was required because it would have been futile under the law in effect at the time of sentencing. (See, e.g., O'Connor v. Ohio (1966) 385 U.S. 92, 93 [ 87 S.Ct. 252, 17 L.Ed.2d 189] [failure to object in the state courts . . . to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court]; People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [citing other cases in which no objection was required due to futility];People v. DeSantiago (1969) 71 Cal.2d 18, 22-23; People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6 [no waiver where lower court was bound by higher court on issue].
E. The matter must be remanded for resentencing.
Deprivation of the right to a jury trial is structural error requiring reversal without regard to prejudice. The wrong entity, the judge rather than the jury, has adjudicated the aggravating factor and has applied the wrong standard of proof. (Sullivan vLouisana (1993) 508 U.S. 275 [ 113 S.Ct. 2078, 124 L.Ed.2d 182].)
Appellant acknowledges that the California Supreme Court has interpreted Apprendi error under the standard in Chapman v.California (1967) 386 U.S. 18 [ 87 S.Ct. 824, 17 L.Ed.2d 705]. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Even if the error is analogized to the failure to submit an element to the jury for decision (that is, the failure to instruct on an element) rather than structural error, the error here still requires reversal.
In context of instructional error affecting the elements of offenses and enhancements, the United States Supreme Court's cases actually demand a rigorous form of Chapman analysis, focusing on what facts the jurors necessarily found in rendering their verdict. In particular, Neder v. United States (1999) 527 U.S. 1 [ 119 S.Ct. 1827, 144 L.Ed.2d 35] which applied harmless error review of omission of an element, made clear that the error cannot be found harmless if the omitted element is susceptible to dispute:
If, at the end of that examination, the [reviewing] court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error — for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding — it should not find the error harmless. (Id. at p. 19.)
Here the factors relied upon by the trial court are susceptible to dispute. The fact that the victim was alone on the street does not necessarily render him more vulnerable. Appellant's "position of leadership," whether the crime involved "great" violence, whether appellant threatened and/or dissuaded a witness from testifying, whether the manner in which the crime was carried out indicated planning and sophistication, whether appellant is a serious danger to society, and whether his priors are of increasing seriousness are all open to serious dispute.
Because the factors considered by the court are susceptible to dispute, there is a reasonable doubt that the error was harmless. The judgment must be reversed and the matter remanded for a new sentencing hearing in which the court is limited to matters actually found to be true by the jury if the court intends to impose the upper term.
SECTION 3 ARGUMENTS 5, AND 6
Exhibit ARGUMENT 5 TRIAL COUNSEL'S REQUEST TO EXCLUDE ATTEMPTED VOLUNTARY MANSLAUGHTER INSTRUCTIONS FROM THE JURYS DETERMINATION OF THE FACTS, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOUR-TEENTH AMENDMENT TO THE STATE AND FEDERAL CONSTITUTION. FACTS: It was alleged in the information that petitioner committed an attempted murder on alleged victim Angel Roblero on or about July 14, 2003. And it was also alleged that he committed the offense for the benefit of a criminal street gang.On December 3, 2003, the jury returned it's verdicts, finding petitioner guilty on all counts, and finding all charged enhancements submitted to the jury to be true.
Petitioner contends that trial counsel rendered ineffective assistance under both the United States and California Constitutions for failure to include the lesser included offense of attempted voluntary manslaughter.
Petitioner does concede that he must demonstrate that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
The California rule requiring Sua Sponte instructions on all lesser included offenses, insofar as supported by the evidence, simply addresses concerns broader than those the people would identify to the contrary. As it is acknowledged, the rule protects both the defendant and the prosecution against a verdict contrary to the evidence, regardless of the parties own perceptions of their strongest lines of attack or defense. The rules purpose is not simply to guarantee some plausible third choice between conviction of the charged offense or acquittal, but to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.
In the present case, the evidence was overwhelming to support an instruction of attempted voluntary manslaughter as the lesser included offense of attempted murder.
However, during the jury instruction selections, the prosecution informed the trial Judge that defense counsel had chosen to exclude attempted voluntary manslaughter instructions from the juries determination. After the trial Judge conferred with counsel as to whether or not it was true, and trial counsel confirmed this conversation he had with the prosecution, and objected to the jury instruction for the lesser included offense of attempted voluntary manslaughter. (See exhibit 1, Pg. 411-12).
Prior to trial, counsel visited petitioner in the San Joaquin County jail to determine what took place between himself and the victim. Petitioner advised trial counsel that Dwayne Harris, himself, and two other acquaintance arrived on Alameda street whereby Angel Roblero and Fabian Perez was confronted by Dwayne Harris, who weeks prior to the incident of July 14, 2003, were involved in other verbal confrontations Allegingly, once Dwayne Harris and the other's exited the car and he (Mr. Harris) confronted Mr. Roblero about an argument that they had two weeks prior, Mr. Harris picked up a 2X4 and engaged Mr. Roblero in a verbal argument while approaching him.
Trial counsel was well aware of the details of the incident that occurred on July 14, 2003, through police reports as well as testimony by various witnesses, to have made such an unprofessional tactical decision to remove the lesser included offense of attempted voluntary manslaughter instruction.
Based on the circumstances surrounding the alleged incident, trial counsel presented a defense of self-defense to the jury. Petitioner assert that due to his ignorance of Judicial Jurisprudence, counsel never consulted with petitioner about his intentions to exclude the jury instruction of the lesser included offense of attempted voluntary manslaughter.
ERROR: Petitioner does concede that due to trial counsel's objections to the attempted voluntary manslaughter instruction being read to the jury, he invited the error by which the trial Court had a Sua Sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter.
"Attempted murder is the unlawful attempted killing of a human being with malice aforethought, Penal Code Section 664/187 Subd. (a).) A defendant who commits an intentional and unlawful attempted killing but lacks malice is guilty of voluntary manslaughter, Penal Code § 192." Generally, the intent to unlawfully kill constitutes malice. But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: eigther when the defendant acts in a sudden quarrel or heat of passion (§ 192, subd. (a)), or when the defendant kills in unreasonable self-defense — the unreasonable but good faith belief in having to act in self-defense. Because heat of passion and unreasonable self-defense reduce an intentional, unlawful attempted killing from attempted murder to voluntary manslaughter by negating the element of malice that otherwise inhere's in such an attempted murder, voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional attempted murder.
It was erroneous for trial counsel to exclude the lesser included offense of attempted voluntary manslaughter when the evidence supporting such an instruction was overwhelming, and petitioner believes that counsel's actions or inactions was the result of his belief that it was in petitioner's interest to give the jury two choices — attempted murder, and self-defense, this way according to counsel's actions the verdict would be an all-or-nothing determination.
The evidence support that such an instruction should have been presented to the jury, considering the Penal Consequences that petitioner was facing — "a substantial difference from receiving 25 years to life for attempted murder, to receiving 9 years for attempted voluntary manslaughter."
Petitioner finds that trial counsel's conduct with respect to the jury instructions was unreasonable and far below prevailing professional standards. To support the first prong of Strickland , this court only needs to review the testimony of Angel Roblero, who testified to the fact that petitioner pulled the gun out during the initial confrontation between Dwayne and himself before retreating inside the residence. Angel Roblero further testified that a friend Fabian Perez who was with Mr. Roblero during the incident, observed the alleged perpetrator's getting into a Saturn and was heading Westbound on Alameda street, in which Mr. Roblero out of straight rage got into his Chevy El Camino, and chased the alleged perpetrator's. According to Mr. Roblero's own testimony, while he followed the Silver 4-door Saturn, he observed the Saturn make a u-turn heading Eastbound, and suddenly the two cars collided with each other. Detectives Chris Mras andCheryl Erb, who done the initial investigation both testified to the fact that according to the debrey that was scattered in the Eastbound lane, suggest that Mr. Roblero vereered into the other lane and rammed the 4-door Saturn. It was only after this incident that petitioner fired two shots from his vehicle in self-defense, believing that his life was in immediate danger and in fear of great bodily injury. (Exhibit 1, Pg. 49-93)
To support the second prong of Strickland , petitioner assert that but for counsel's unprofessional errors, the results would have been different. Had counsel allowed petitioner to participate in the decision making that was so crucial in determining whether he received a substantial sentence of life or a determinate sentence of 9 years, was denied him.
As a result, trial counsel decided to consult with the prosecution to exclude the lesser included offense of attempted voluntary manslaughter. Had this error not occurred, it was a high probability that petitioner would have been found guilty of attempted voluntary manslaughter.
A. MEMORANDUM AND POINTS OF AUTHORITIES IN SUPPORT THEREOF
To establish ineffectiveness of counsel under Articl I, Section 16 of the california Constitution, a petitioner must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense. In particular, petitioner must show that counsel knew or should have known that further investigation was necessary and must establish the nature and relevance of the evidence that counsel failed to present or discover.
The defendant must demonstrate that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to under+ mine confidence in the outcome. ( Strickland V. Washington , (1984) 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674.)
Strategic choices made among plausible options after thorough investigation of the facts and applicable law are virtually unchallengeable Strickland , 466 U.S. at 690, 104 S.Ct. at 2066. By contrast, strategic choices that follow an investigation that is less than complete are reasonable only if the decision to limit investigation is itself a reasonable professional judgment. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that make particular investigations unnecessary.
Under Strickland , trial counsel's reasonable investigations to make a reasonable decision to exclude the attempted voluntary manslaughter instruction was inadequate and unreasonable when considering the overwhelming evidence to support the attempted voluntary manslaughter instruction. This Constituted a violation of petitioner's 6th and 14th Amendment of the State and Federal Constitution.
Any reasonable trial Attorney whether appointed or retained would have known after a thorough investigation of the facts, that a reasonable decision to include the attempted voluntary manslaughter instruction was sufficient and in the interest of his/her client.
B. PREJUDICE
Petitioner believes that he has presented a Prima Facie case, and ask's this court to hold an evidentiary hearing to determine the facts of the claim.
The prejudice that resulted was enormeous to petitioner because had the jury been allowed to determine whether or not petitioner commited attempted voluntary manslaughter instead of attempted murder as the lesser included offense, they could have easily inferred from the evidence that petitioner had in fact commited attempted voluntary manslaughter. The evidence revealed that during the initail incident at the residence of Fabian Perez's father's house on Alameda.
Petitioner allegingly pulled out a firearm during the incident between Dwayne Harris and Angel Roblero.
The evidence through testimony by Angel Roblero himself reveals that; after Fabian Perez and himself retreated into the house to avoid further danger, they observed through a window in the residence, petitioner and his friends get into a 4-door Silver Saturn going West.
Mr. Roblero testified that the only reason he went after the occupants of the car, was out of revenage for what had happened just moments earlier.
In addition to that, two detectives testified that the investigation at the crime scene of the car collision revealed, that it was more likely then not that Angel Roblero veered into petitioner's lane, and caused the incident by ramming his El Camino vehicle into petitioner's car. The shooting incident occurred only after Mr. Roblero rammed his vehicle into petitioner's car out of revenage, and that petitioner fired three shots out of fear that his life was in immediate danger.
Trial counsel provided incompetent representation during this stage of the trial proceedings, for objecting to the lesser included offense of attempted voluntary manslaughter instruction. Absent this error petitioner not only believes that the outcome would have been different, but the actual prejudice to petitioner was the additional years of life imprisonment he received as a result of counsel's negligence. Therefore, petitioner believes that this court must grant the writ of Habeas Corpus, and hold an evidentiary hearing to determine the facts of his claim. Brecht V. Abrahamson , 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
ARGUMENT 6 THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT AN ATTEMPTED MURDER CONVICTION.
Petitioner contends that there was insufficient evidence to find him guilty of attempted murder. He asserts the evidence was insufficient as a matter of law to justify findings that petitioner committed the requisite "direct but ineffectual act" towards Angel Roblero, and that he had engaged in more than mere preparation, or that he would have committed a murder if the police had not arrested him at the restaurant.Under the Due Process Clauses of both the Fourteenth Amendment of the Federal Constitution and Article I, Section 15 of the California Constitution, the test of whether evidence is sufficient to support a conviction is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ( Jackson V. Virginia , (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; People V. Rowland , (1992) 4 Cal.4th 238, 269, 14 Cal.Rptr.2d 377, 841 P.2d 897; People V. Johnson , (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) FACTS : Petitioner was found guilty by jury on December 3, 2003, of attempted murder Pen. Code § 664/187(a), shooting at an occupied motor veicle Pen. Code § 246; assault with a semi-automatic firearm Pen. Code § 245(b); Street terrorism, Pen. Code § 182.22(a); and possession of a firearm by a felony, Pen. Code § 12021, (a)(1).
At the sentencing hearing that commenced on January 23, 2004, petitioner was sentenced to 53 years to life on count two, for shooting at an occupied motor veicle. All the other counts were either stayed, ran concurrent, or, added to the determinate sentence.
The defense sought out to prove to the jury that petitioner acted in self-defense against Mr. Roblero, only after the victim had chased petitioner out of an act of rage in his vehicle, and rammed petitioner causing him to fire three shots at the victim, believing that his life was in imminent danger.
The testimony of Angel Roblero was that petitioner and three of his friend's exited their vehicle, and confronted them in front of Mike Coffman's father's house.
Supposely, the incident stems from a gang rivalry between Southside Surenos and Nortenos, both residing in the City of Manteca. The victim was an acclaimed member of the Southside Surenos, who alleged that an on going dispute between himself and Dwayne had been brewing for weeks, that lead up to the incident in front of his friends father's home.
Angel Roblero testified that while he and Fabian Perez was in front of the residence of a friend's house drinking beer, Mr. Perez alerted him that he thought they would be in a confrontation with the individuals that was observed crossing the street.
He stated that he observed Dwayne and three to four individuals exit a white car, and begun approaching in their direction from across the street on Alameda. He further stated that him and Dwayne had been at odds with one another for pass few weeks, where he had confronted Dwayne by challenging him to a fight. (See Exhibt 1, Pg. 260-269)
Under direct-examination Mr. Roblero testified that, while the individuals was approaching them, Dwayne snatched a two-by-four from a truck that was parked nearby, and begun yelling profanity and other derogatory terms at him. He further stated that while this was occurring someone from their group, later identified as petitioner produced a weapon he claimed that was a small chrome Calibar handgun. Mr. Roblero testified that despite the weapon not being pointed at no particular person, he felt that it was being produced in order to intimidate him, so he and Fabian ran in the house to avoid further confrontation. (See Exhibit 1, Pg. 271-275.)
His testimony was that once they retreated inside the house, the perpetrators came onto the front pourch and the gun was pointed at the window, but there was no gun fire.
He stated that inside the house people had become so disoriented that it caused a sense of panic and fear. And that all he could think about was getting revenage. So, he told his friend to look out the window to see if they had left, and his friend responded in the affirmative. Mr. Roblero testified that he was so furious at what took place that he went after them out of revenage. So he got into his vehicle and drove Westbound on Alameda in an attempt to catch up with petitioner's car . . . Which he did.
A. Evidence supporting that petitioner acted in self-defense.
Petitioner allege that not only was there insufficient evidence to support the conviction of attempted murder, but the testimony of Mr. Roblero and Sergeant Greg Lassell support petitioner's claim that attempted voluntary manslaughter at the least he should have been found guilty of.
Under cross-examination Mr. Roblero testified that his car did in fact swerve into the Eastbound lane, and made contact with petitioner's vehicle causing the traffic collision and according to his testimony, was done in the first place out of revenage for what took place earlier. (See Exhibit 1, Pg. 343-347)
Next, officer Greg Lassell testified that Mr. Roblero during his initial interrogation, told him that not only did he not cause the two cars to collide, but that petitioner swerved into his lane causing the two cars to collide.
When officer Lassell was asked did he think that Mr. Roblero was telling the truth considering that his investigation revealed, he testified that Mr. Roblero version of the incident could not be accurate, and that after investigating the accident scene, it appeared that Mr. Roblero had in fact swerved his vehicle into the Eastbound lane and rammed petitioner's vehicle. (See Exhibit 1, Pg. 368-375.)
Points and Authority to support petitioner's conviction as erroneous and prejudicial, violating his 14th Amendment Due Process of the State and Federal constitution.
Petitioner contends that the evidence was insufficient to establish attewmpted murder in that there was no substantial evidence upon which to base a conclusion that the attempted killing was deliberate.
Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate attempted murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of Appellate review require this court to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonsable, credible, and of solid value — from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. See Jackson V. Virginia , (1979) 443 U.S. 307, 317-320, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560.)
Petitioner assert that his State and federal Constitutional rights under the 14th Amendment Due Process was violated under the sufficiency test required to find a defendant guilty of attempted murder.
The evidence at trial revealed that petitioner fired his weapon only after Mr. Roblero had rammed his vehicle, out of revenage against petitioner for the incident that took place earlier. The testimony by Mr. Roblero and officer Greg Lassell also showed that the alleged attempted murder of Mr. Roblero, didn't take place until petitioner and his friends left the residence of Perez friend's father's house.
Petitioner not only acted in self-defense when Mr. Roblero rammed his vehicle with the intent to cause harm, but at the least the evidence supported that petitioner in fact committed an attempted voluntary manslaughter.
PREJUDICE
In the crime charged in count 1, the attempted murder on Mr. Roblero in the information, must exist a union or joint operation of an act or conduct and a certain mental State in the mind of petitioner. And unless such mental state existed, then the crime to which it relates is not committed.
In the crime of attempted murder, the necessary mental state is malice aforethough. An attempt to commit a crime consists of two elements, namely a specific intent to commit the crime and a direct but ineffectual act done toward its commission. But, acts of a person who intends to commit a crime will constitute an attempt where they themselves clearly indicate a certainunambiguous intent to commit that specific crime and in themselves are an immediate step in the present execution which would be completed unless interrupted by some circumstances not intended in the original design.
Malice is implied when the attempted killing results from an intentional act involving a high degree of propability that it will result in a death, which act is done for a base antisocial purpose and with a wanton disregard for human life.
It is now well established that a specific intent to kill is a requisite element of attempted murder. In the case at bar, the necessary elements of attempted murder was totally absent and from the evidence as well as the the testimony of the people's witnesses, revealed that petitioner was only guilty of attempted voluntary manslaughter.
Petitioner was substantially prejudiced when he received a life sentence conviction on less than sufficient evidence to support attempted murder. The evidence clearly showed that only after petitioner left the residence where the initial conflict took place, and Mr. Roblero ramming petitioner's vehicle did he (out of self-defense) fire three shots at Mr. Roblero.
Petitioner believes that he has established a Prima Facie case of substantial prejudice, and asks this Court to grant petitioner the relief deemed necessary. Brecht V. Abrahamson , 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
SECTION 4
NOTICE OF MOTION AND REQUEST FOR AN EVIDENTIARY HEARING IN PURSUANT TO CRC, RULE 4,551(F)NOTICE OF MOTION AND REQUEST FOR AN EVIDENTIARY HEARING IN PURSUANT TO CRC, RULE 4.551(F)
I INTRODUCTION
1. Petitioner hereby, petitions this Court on motion for request to hold an evidentiary hearing to resolve the material facts in dispute, in pursuant to California Rules of Court, Rule 4.551(f). Accompanying this motion for an evidentiary hearing is the memorandum of points and authorities, and petitioner's declaration in support thereof.2. Petitioner request that an evidentiary hearing is necessary and required, in order to resolve the factual issues claimed in petitioner's writ of habeas corpus, and believes that the facts in dispute has been shown warranting a hearing on petitioner's ineffective assistance claims.
II
3. Petitioner Ricky GONZALES, is a prisoner of the State of California, presently incarcerated at Pelican Bay State Prison (PBSP).
4. Respondent Robert A. Horel, is warden of PBSP and is the legal custodian of said prisoner.
III
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER'S NOTICE OF MOTION FOR REQUEST TO HOLD AN EVIDENTIARY HEARING.
ISSUES PRESENTED :
Petitioner presents the following issues for an evidentiary hearing:
A. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE EXCLUDED ATTEMPTED VOLUNTARY MANSLAU-GHTER INTRUCTIONS, LEAVING THE JURY WITH AN ALL OR NOTHING VERDICT.
MEMORANDUM OF POINTS AND AUTHORITIES
A. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE EXCLUDED ATTEMPTED VOLUNTARY MANSLAUGHTER INTRUCTIONS, LEAVING THE JURY WITH AN ALL OR NOTHING VERDICT.An evidentiary hearing is needed as to this ground to fully develop the facts that are materially in dispute.
As petitioner alleged in Ground I of his petition, that trial counsel provided ineffective assistance when failed to include the lesser included offense instruction of attempted voluntary manslaughter, placing the fact finders determination in the position to either find petitioner guilty as charged, or, not guilty of attempted murder.
The California Rule requiring Sua Sponte instructions on all lesser included offenses, insofar as supported by the evidence, simply addresses concerns broader than those the people would identify to the contrary. As it is acknowledged, the rule protects both the defendant and the prosecution against a verdict contrary to the evidence, regardless of the parties own perceptions of their strongest lines of attack or defense.
The rules purpose is not simply to guarantee some plausible third chioce between conviction of the charged offense or acquittal, but to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.
In the case at bar, not only had there been sufficient evidence to support an attempted voluntary manslaughter instructions, the trial judge as well had indicated his Sua Sponte duty to give the instructions unless objected to, which petitioner's counsel had done. During the jury instruction selections, the prosecution informed the Court that defense counsel had chosen to exclude the attempted voluntary manslaughter instruction. The trial Court had confirmed this fact through counsel's further objections, causing the trial judge to exclude the instructions on counsel's request. (See Petition, Exhibit 1, Pg. 411-12 )
Athough petitioner concede that trial counsel's objection to giving the Sua Sponte attempted voluntary manslaughter instruction was an invited error; Nonetheless, counsel's unprofessional representation placed petitioner in a position to have the jury determine between acquittal or guilt, excluding any chance on the basis of the evidence presented of finding him guilty of a lesser included offense.
The evidence supported that such an instruction should have been presented to the jury, considering the penal consequences that petitioner was facing — "a substantial difference from receiving 25 years to life for attempted murder, to receiving a years for attempted voluntary manslaughter."
Petitioner finds that trial counsel's conduct with respect to the jury instructions was unreasonable and far below prevailing professional standards.
Reasons for evidentiary hearing :
To establish ineffectiveness of counsel under article I, Section 16, of the California Constitution, a petitioner must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense. In particular, petitioner must show that counsel knew or should have known that further investigation was necessary and must establish the nature and relevance of the evidence that counsel failed to present or discover. See Strickland V. Washington , 466 U.S. 669, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
Petitioner contend that an evidentiary hearing is necessary on the basis of the issues being in dispute, and for this Court to determine whether counsel's conduct fell below a reasonable standard of effective assistance.
The prejudice that resulted was enormeous to petitioner because had the jury been allowed to determine whether or not petitioner committed attempted voluntary manslaughter instead of attempted murder as the lesser included offense, they could have easily inferred from the evidence that petitioner had in fact committed attempted voluntary manslaughter.
Petitioner believes as set forth in the petition (Ground I) and is now reiterated herein, the petitioner have met the burden proved for to hold an evidentiary hearing of material facts that are in dispute, and of proving that defense counsel's acts/omissions were as a result of his failure to thoroughly assess petitioner's obtions at the least guilty of attempted voluntary manslaughter, if the jury determined that petitioner acted in self-defense but was guilty of the lesser included offense of attempted murder against Angel Roblero. Thus, trial counsel's failure to include the attempted voluntary manslaughter instruction fell outside the "wide range of professionally competence assistance," See Harris V. Reed , (1990) 894 F.2d 871, 878.
CONCLUSION
Petitioner contend that trial counsel provided deficient performance during the trial proceedings, when he failed to include the attempted voluntary manslaughter instruction; and as a result of his actions invited the error committed by the trial judge in his refusal to submit the instruction to the jury caused by counsel's objection.Petitioner further believe that this motion has addressed and pointed out the material facts in dispute, that warrants an evidentiary hearing to resolve whether or not counsel's performance undermined the confidence in the outcome of the proceedings.
California Rules of Court, Rule 4.551(f)., allows for the reviewing Court to hold an evidentiary hearing where factual issues are in dispute, and the petitioner has provided this Court with a colorable claim; (1) the allegations in his petition would if proved, entitle him to relief. (2) the Factual basis of the claim is in dispute.
Petitioner asks this Court to hold an evidentiary hearing after thorough review of petitioner's motion for hearing to resolve issues in dispute.
DECLARATION OF RICKY GONZALES, IN SUPPORT OF MOTION FOR AN EVIDENTIARY HEARING.
I Ricky GONZALES, do declare the following facts are based onmmy personal knowledgr and if called to testify, would say as follow:
1). Petitioner asserts that an evidentiary hearing is neede as to the "notice of motion to request an evidentiary hearing" to fully develop the material facts that are in dispute, in pursuant to California Rules of Court, Rule 4.551(f). 2). Petitioner contends that retained counsel (Mr. Marks) rendered his performance fundamentally inadequate during trial proceedings, that as a result petitioner was denied his 6th Amendment rights under the State and Federal Constitution to the effective assistance of counsel, and deprived him the right to a fair proceeding.
3). Trial counsel provided deficient performance when he objected during the jury instruction selection, to exclude the attempted voluntary manslaughter instruction that the trial judge was required to give.
Counsel's objections to the jury instruction was based on his mistaken belief that petitioner would be acquitted of the charges of attempted murder, and avoid even a prison sentence if found guilty of the lesser included offense.
4). Petitioner alleges that at no time did counsel consult with him about such an important decision as that as excluding an instruction, that eliminated from the jur ies dotermination the lesser included offense of attempted murder. 5). Petitioner contend that counsel's objection to exclude the attempted voluntary manslaughter jury instruction, undermined the juries determination to decide whether or not petitioner committed the lesser included offense. In addition, there was absolutely no reason for counsel to exclude attempted voluntary manslaughter instruction when there was overwhelming evidence that petitioner acted in self-defense, and at the least was guilty of the lesser inclided offense of attempted murder. Thus, petitioner believes that a evidentiary hearing is needed to develop the material facts in dispute.
I, declare under the penalty of perjury governed by the laws of the State of California and the United States of America that all of the foregoing is true and correct. Executed on this 25 day of Oct 2007, at the City of crescent City, California.
Exhibit 1
THE COURT: Mr. Hoyt, you may call your first witness.MR. HOYT: People would call Officer Mraz. Mraz. M-R-A-Z.
CHRIS MRAZ , a witness called by the People, having been duly and regularly sworn, testified as follows:
THE WITNESS: Yes, I do.
THE CLERK: Please be seated.
Please state your name and spell your last name for the record.
THE WITNESS: Officer Chris Mraz, M-R-A-Z.
THE COURT: You may proceed, counsel.
DIRECT EXAMINATION BY
MR. HOYT: Q. It's pronounced "Mraz"?
A. Yes.
Q. Good morning, Officer Mraz.
Can you please tell us where you're employed?
A. With the Manteca Police Department.
Q. And what are your duties there?
A. I'm a police officer, currently assigned to patrol division.
Q. And how long have you worked as a police officer?
A. In the City of Manteca, since January of `92.
Q. And did you work somewhere as a police officer prior to that?
A. Yes, in the Palo Alto Police Department, from May of 1984.
Q. Okay. And was that `84 until `92?
A. Yeah.
Q. I want to take you back and ask you a few questions about an incident that took place on May 14th of this year at approximately 5:00 p.m. Do you recall if you were working that particular day?
A. Yes, I was working beat 1, which is on the west side of town. I was in a fully marked police vehicle, in a uniform.
Q. Okay. And you were in uniform?
A. Yes.
Q. And were you dispatched or were you sent by your office to any particular location?
A. Yes. I was dispatched to the 600 block of West Alameda on a possible drive-by shooting which had just occurred.
Q. Okay. And did you actually make it to the 600 block of West Alameda?
A. Well, originally I was told there was no — everybody had left the scene and that there was no injuries on the scene. Other officers had contacted a possible person that was involved, so originally I responded to a different location which was actually on Argonaut Street in the area of Poplar Street where they had Mr. Roblero's vehicle.
Q. And let me ask you about that. So initially you went to the area of Poplar and Argonaut?
A. Yeah. Officer Mike Aguilar and Officer Garwood had contacted Roblero with his pickup at that location. Since that was actually the first person that we had located in regards to this particular incident, I went there first `cause I knew we had no injuries over on West Alameda.
Q. And you indicated that when you got there Officers Garwood and Aguilar were already there?
A. That's correct.
Q. I want to show you a couple of maps and also some photographs, just so we have an idea of where we're talking about.
First of all, showing you People's Exhibit Number 18, do you recognize what's in People's Exhibit Number 18?
A. Yes, that's a street map in part of Manteca.
Q. Okay. And specifically can you show us the area that you talked about that you went to and contacted Mr. Roblero, I believe you said Argonaut and Poplar?
A. Sure. Can I get down?
Q. Need a pen? Got one here.
A. Okay. Let's see. Argonaut . . . We actually contacted Mr. Roblero in his car right about here, it was near the area of Poplar, which is right here. And this is Argonaut.
Q. Okay. Can you put maybe "R-1" for "Roblero 1."
A. (Drawing.)
Q. Okay. Maybe just put a circle around it, if you could, so we can see it.
A. (Drawing.)
Q. Thank you very much. Or a square.
A. Yeah.
Q. Thank you very much.
So this is the area where you went and contacted Mr. —
A. Roblero.
Q. — Roblero.
Tell us about that contact. What did you observe?
A. Well, originally when I pulled up I noticed there was some fresh damage on the driver's front end of his car, which was the pickup.
Q. When you say "pickup," what kind of — what kind of pickup are we talking about?
A. It's an El Camino, a Chevy El Camino. It's not a real pickup, it's one of those extended kind of Ranchero pickups, which is a uni-frame.
Q. What exactly did you observe again?
A. There was fresh damage to the driver's front quarter panel.
Q. And what — how was Mr. Roblero acting at that point?
A. Um, Mr. Roblero was pretty upset. He had — he was sweating a little bit, he was agitated.
Q. Okay. Showing you People's Exhibit Number 17, do you recognize what's in People's Exhibit Number 17, first of all, starting with photograph -A?
A. Yeah, that is Mr. Roblero's pickup. The — on the driver's side front is the fresh damage that I saw.
Q. Okay. And looking at photographs -B, -C, and -D, what do those photographs show?
A. Those are pictures of the gouge marks which the bullets had left. Roblero had told us that he had been shot at. When we were checking over the car, I actually saw the damage. There's actually two — two gouge marks left by bullets. You can see them best in -B here, 1 and 2.
MR. MARKS: I'm going to object to "left by bullets." He hasn't established any expertise.
THE COURT: Lack of foundation?
MR. MARKS: Pardon me?
THE COURT: Lack of foundation?
MR. MARKS: Yes, sir, he hasn't —
THE COURT: Sustained.
MR. HOYT: Q. Okay. Do you have prior experience with looking at vehicles that have been struck by gunfire?
A. Yes.
Q. Okay. Approximately how many occasions have you viewed vehicles struck by gunfire?
A. It'd be hard to estimate, counselor. Almost 20 years in law enforcement.
Uh, uh, if I had to guesstimate, I would say no less than —
MR. MARKS: I'm objecting to any guess, Your Honor, as not being a proper response.
THE COURT: Well, he was intending to estimate. I took it to be an estimate.
THE WITNESS: Yes, Your Honor.
THE COURT: Which is proper.
THE WITNESS: I'd have to estimate no less than 10.
MR. HOYT: Q. Okay. And based on your prior experience and the information you had at that point, were these marks consistent with a gun having hit that car?
A. Yes.
Q. Okay.
Looking at photographs -E and -F, can you tell us what are in those two photographs?
A. Yes. That's pictures from the back end of Mr. Roblero's pickup.
-F is the license plate that's on his truck.
Q. Okay. And these photographs that — -A through -F in People's Exhibit Number 17, do those accurately show what you saw back on May 14th of this year in the location you've described?
A. Yes, they do.
Q. Okay.
Now, you've indicated where you saw marks on the car consistent with gunshots. Was there damage on the — on the front of the vehicle?
A. Yes, in the driver's front corner area you can see it best in picture -A, in front of the front tire.
Q. Okay. Was there anything about that damage that — that you observed any specifics?
A. It did look fresh. The — there was no rust over any of the — the crinkled marks in the metal or anything like that. There was fresh paint which was chipping away from the area.
Q. Okay. Thank you.
Once you spoke to Mr. Roblero and Officers Garwood and Aguilar and made these observations, what did you do next?
A. Well, Mr. Roblero had told me that he had located the other vehicle which was involved in this incident up on the 700 block of Poplar, so I went to look for that vehicle up there.
Q. Okay. And when you say you went to the 700 block of Poplar, did you go northbound on Poplar?
A. Yes, I did.
Q. Okay. What did you do when you got to that location?
A. I found the vehicle which matched the other vehicle description, roughly in front of 750 Poplar.
Q. Okay. And what kind of vehicle was it?
A. It was a newer Saturn four-door, which was silver in color. It also had fresh damage behind the driver's side rear door, and a flattened left rear tire.
Q. And specifically where in the 700 block of Poplar did you find that?
A. It was facing northbound, it was parked on the east side of the street, and it was generally in the area of 750 Poplar.
Q. I'm sorry, "750"?
A. Yes.
Q. Okay. And could you please — on People's Exhibit Number 18, could you write where exactly you found that vehicle, maybe with a "GS" for "gray Saturn."
A. Okay (drawing).
Q. And distance-wise, approximately — approximately how far away was Roblero's car from where you found this gray Saturn?
A. Oh, it's not very far at all. It's, uh — actually is this . . . We're going to be a little bit south of the street here.
Closer.
Q. You might have to speak up just a little bit.
A. I'm sorry. I'm just figuring out, this is Amador Circle right here, so we're actually going to be a little bit south of where I originally put it. So.
Q. Could you label that street, please?
A. Sure (drawing).
Q. Okay.
A. Um —
Q. No, I'm sorry, could you label Amador Circle for us.
A. Oh, sure. (Drawing.)
Q. Thank you.
A. Distance-wise, it's not very far at all. Guesstimating, I'd say couple hundred yards.
Q. Okay.
And distance-wise from the area of — at some point did you go to 658 West Alameda?
A. I did. Originally what happened was that when I located that car by the time the — that we knew the players involved, we had seen some — we'd seen Roblero involved, and we saw some red clothing that had been dumped in the area, we pretty much figured out this was potentially a gang incident; we know Roblero to be involved in the Surenos, the red clothing indicative of Nortenos. So I contacted Sergeant Cook on — when I was still on Poplar, briefed him, told him that I thought — I thought detectives need to get involved, as well as the gang unit, due to the nature of the case.
So after we had the scene secured I contacted CSO Erb, who came out and processed the actual vehicle for evidence. Once I left her with that vehicle and had briefed Sergeant Cook, that's when I went back over to West Alameda.
Q. Okay. And you indicated that you knew Roblero was a Sureno gang member?
A. That's correct.
Q. Okay. You had had dealings with him in the past?
A. Yes, I have.
Q. I want to show you — before we start to talk about the West Alameda location, I want to show you some photographs and ask you if you recognize them.
A. Uh-huh (affirmative).
Q. Showing you People's Exhibit Number 14, photographs -A and -B, do you recognize what's in those photographs?
A. Yeah, that's the newer Saturn that I located on the 700 block of Poplar.
Q. And, specifically, can you show us where the damage was located?
A. Certainly. This — the fresh damage that I found was on the driver's side rear door or rear quarter panel here, as well as the flattened left rear tire (indicating).
Q. And looking at photographs — first of all, photograph -C, what does that show?
A. That's the license — the front license plate on the vehicle.
Q. And photograph -D?
A. -D is paint transfer in the area of the damage, showing primer gray paint.
Q. Okay. And-that's — that's what you saw, there was primer gray paint?
A. That's correct. It was the same — same color as Mr. Roblero's pickup.
Q. And photographs -E and -F, what do those show?
A. Those are scaling pictures, showing the size of the damage on close-up view of the driver's side.
Q. And these photographs, -A through -F, in People's Exhibit Number 14, do those accurately show what you remember seeing back on May 14th of this year —
A. Yes, they do.
Q. — in Manteca?
A. Yes, they do.
Q. Okay. Thank you.
Was — was the gray Saturn searched?
A. Yes.
Q. Okay. Was there anything located in it?
A. I just did a cursory search because we still had outstanding suspects, that was our predominant focus right there, I was just checking for weapons, I didn't find any weapons inside that vehicle. Because I knew Officer Erb was coming over to process the vehicle for evidence, I really didn't go into it that much farther.
Q. Okay. Was there anything else that you did over at that location of 750 Poplar where the gray Saturn was located?
A. I did check a couple backyards. We had some people coming up to us — because we knew that we had had people that had bailed out of this car (indicating). Had some people coming up to us, "I saw him in this backyard at 750," so I went and checked the backyard at 750, contacted the people at 720. They said they had heard some noises going eastbound through their backyard, which would empty out into a commercial area on — it's actually on North Main Street. So we checked their backyard, didn't find anything there also.
Q. And when you said you checked those backyards, how — how thorough of a check did you do at that point?
A. Did a cursory check, we were mostly looking for suspects. Because we had — because of the type of call with gunfire and that type of thing, we're more concerned with our own safety at that point to make sure that — that we don't have to deal with suspects with guns as opposed to actually looking for evidence in a hei — heightened state at that point.
Q. Okay. Now, you had mentioned — you had mentioned about a red shirt. At some point were you aware that someone had located a red shirt?
A. Yeah, I do remember that one of the detectives I believe found a — found a red shirt.
Q. Okay. Now, once you finished in the area where the gray Saturn was located, 750 Poplar, what did you do?
A. That's when I went over to the address on West Alameda.
Q. Okay. And specifically what did you do when you went to West Alameda?
A. When I went to 650 West Alameda the first thing I did was check the — do a general overall check of the crime scene and make sure that we didn't have any bodies that someone had not seen before, or anything like that.
Then I contacted Mr. Hauser who actually — or Hauger, I believe it is, who actually told me that he had seen the incident.
Q. Okay. Let me ask you this: The — were you the first officer that responded on scene to 658 West Alameda?
A. I was.
Q. And do you know approximately about what time this was?
A. Um, it . . . It was probably a good 20 to 30 minutes after the original call for service.
Q. Okay. And the original call for service came out about what time?
A. Um, I'd have to refer to the report to get the exact call.
Q. If that would refresh your memory, please.
A. (Perusing document.) Original call came in at 5:03 in the afternoon.
Q. Okay.
And this is back in mid May —
A. Uh-huh (affirmative).
Q. — correct?
And so was it daylight hours?
A. It was daylight, yes.
Q. Was it dusk, or was it —
A. No, it was pretty well-lit.
Q. When you got to 658 West Alameda, you said that you interviewed Mr. Hauger, James Hauger, and did he actually live at 658 West Alameda?
A. Yes, he did.
Q. And following that interview, did he show you anything?
A. Yes. He showed me a fresh — what he described as a bullet mark in his garage door.
Q. Okay. And did you observe that?
A. I did.
Q. Did you make any other observations as far as any other physical evidence found?
A. Yeah. In the — in the eastbound traffic lanes right in front of — or actually just east of the residence, I located two shell casings which were silver in color, .25 caliber, semiautomatic shell casings.
I also located a third casing on the sidewalk which would be the southern sidewalk in that same area.
Q. And was there anything else other than the shell casings that you saw?
A. Yes. I also located damaged fence line, which Mr. Hauger had pointed out to me, that the cars had impacted during the actual incident, and I noticed on the — on the actual railing which had been hit there was a primer-gray paint transfer onto that railing. So I requested Officer Erb come over and process that particular crime scene also.
I secured the rounds that were in the street by placing orange pylon cones over them, and left the shell casing that was on the sidewalk in place and put a chalk circle around it.
Q. Okay. I want to show you some photographs and just try to get an idea of where this is all located.
A. Sure.
Q. I'm going to show you, first of all, People's Exhibit Number 19. Do you recognize what People's Number 19 is?
A. Yeah. That's an actual overhead picture of part of the city of Manteca in the area where this occurred.
Q. Okay. So kind of an aerial photograph?
A. Exactly.
Q. And you mentioned about being over on Poplar?
A. Uh-huh (affirmative).
Q. And you also mentioned that you went to the 6 — 658 West Alameda Street?
A. That's correct.
Q. Okay. And this map, does it accurately show where you remember 658 West Alameda Street being when you went there on May 14th?
A. Yes, it does.
Q. And obviously on the map it has like a red square and a label that says "658 West Alameda."
A. Uh-huh (affirmative).
Q. You had testified that you saw a bullet hole in that garage door —
A. Yes.
Q. Okay. And that you found some casings. Approximately where were the casings found in relation to 658 West Alameda?
A. They were, um . . . They were probably . . . Well, I'd have to say that they were about 30 feet, maybe, east of the residence.
Q. Okay.
A. They were — they were in the street, in the general area of the residence. They were actually just a little bit east of the general residence.
Q. Let me show you some other photographs.
First of all, looking at People's Exhibit Number 13, do you recognize, first of all, photographs -A and -B?
A. Yes, that's the front of 658 West Alameda.
Q. Okay. And photograph -B, does that also show the front, including the damaged fence you described?
A. Yes, it does. The fence that's knocked down right there is where Mr. Hauger said that the cars had impacted.
Q. And looking at photograph -B — and I think we have a photograph that shows it better — but where exactly did you see the paint transfer?
A. The — it's — it's right there.
It's actually right about here (indicating), you can see a small line there, lightened color. That's —
Q. Okay. You're — just for the record, you're pointing to the middle —
A. It's actually — it's actually towards the end of the railing here.
Q. Okay.
A. It's not really in the middle.
Q. I'm sorry, just for the record, you're pointing to the middle of photograph —
A. -B.
Q. — 13-B, kind of to the middle and a little bit to the right, and you're saying the end of this pole?
A. That's correct. There was some paint transfer along this horizontal pole, as well as this right here — this little piece that hangs off the end (indicating) is actually a piece that — that holds on and holds another pole in position. And there was some paint transfer on that piece also.
Q. Okay. Thank you.
Photographs -C and -D, do you recognize those?
A. Yes. Photograph -C is looking eastbound along West Alameda, and it's a picture of the overall scene in front of the residence. It — in the lower right-hand corner here, this is again the damaged fence line that was involved in the incident.
The two pylons that are seen in the roadway here are covering up two of the shell casings that I located.
And then just to the right of the — the station wagon which is here in the street, on the sidewalk is the third casing.
Photograph -D is a picture of the garage door which belonged to 658 West Alameda, which is Mr. Hauger's residence.
Q. And then looking at People's 13, photograph -F and -G, do those also show a closer view of the garage door where the bullet hole was located?
A. Yes, they do. They actually are increasingly closer-up views of the garage door, showing an actual scale of the hole that was made by Mr. — as Mr. Hauger described, by the bullet hitting his garage door.
Q. What about photograph -E, can you please describe what that shows?
A. Photograph -E is a — it's a scale marking as well as a skid that comes up to the area of impact along the — where the damage was done to the fence line. Comes across the sidewalk here and actually comes up and hits the — the chainlink fence.
Q. Okay. Thank you.
All of these photographs that you've identified and described their contents of People's Exhibit Number 13, do those accurately show everything that you observed back on May 14th of this year over in that area of 658 West Alameda?
A. Yes, they do.
Q. Let me ask you this: The — the mark that is shown in People's Exhibit 13-G of Mr. Hauger's garage, was there a bullet that was found in — in that mark?
A. No. We — we tried to trace the trajectory of where the slug would have gone through the door. We found an in-and-out mark that actually entered there and exited through the back of the garage door. We tried to trace the trajectory, but the garage was fairly full and we never found the actual slug.
Q. Can you describe to the jury what "trajectory" means?
A. Trajectory is an actual angle once the bullet is fired out of the gun, you can — you can find a line which is defined by many different things, including wind velocity, the weight of the bullet in relation to gravity. When the bullet comes out of the gun, it will follow a path. Now, like I said, that trajectory is actually changed by various different things.
When we saw this particular bullet mark and went back to where we located the casings, we pretty much figured the bullet had come westbound along the street, struck the garage here, so we were actually trying to follow the actual path of flight of the bullet into the garage to see if we could locate the actual slug, which is the actual bullet that comes out of the casing.
Q. Okay. And the slug or the bullet was not located?
A. We did not locate it.
Q. Showing you People's Exhibit Number 15, photographs -A and -B, do you recognize those photographs?
A. Yes. Those are again pictures of the pylons that I put over the casings which I found in the street, as well as photograph -B is a — is a picture of the casing on the sidewalk that I located and the circle that I put around that — that casing.
Q. And, again, in photograph -A — you talked about putting the pylons over those casings. Was that so cars wouldn't run them over?
A. That's exactly right. As you can see, this vehicle which was parked along the southern roadway edge of West Alameda Street, you can see that the casings are actually out in the street. So to prevent the casings being damaged any more than they already potentially had been, we put pylons there so oncoming eastbound traffic could see them as a traffic hazard and move around them.
Q. Looking at photographs -C and -D, do you recognize what's in those photographs?
A. -C and -D would — are the front of the duplex which is actually right next door. As you can see, this is the — the station wagon which is pictured here. So they're actually frontal views of this next duplex over, which I believe is 646, and I don't know what the other number is.
Q. Okay. And actually in photograph -C, does that mailbox say "648"?
A. Yeah, "648," yeah. So that would have been — abuts to 646 and 648.
Q. Looking at photographs -E, -F and -G, can you describe what are in those photographs?
A. Yes. Those are the three shell casings that — that were located; -E and -F are the ones that are located in the street, -G is the one that was located on the sidewalk.
Q. Okay.
And last of all, photograph -H of People's 15, does that show the view basically from the station wagon where the casings were found in the street, back towards Mr. Hauger's residence?
A. Exactly. Whereas -A is a view more looking eastbound, H is more of a view looking westbound.
Q. Thank you.
And all these photographs in this particular exhibit, People's Exhibit Number 15, do those accurately show what you remember seeing back on May 14th of this year?
A. Yes, they do.
Q. Okay. Last set of photographs.
A. No problem.
Q. Showing you People's Exhibit Number 11, first of all, looking at photograph -A, do you recognize that photograph?
A. Yeah. That — that picture actually includes not only the eastbound view, but it also includes a view of a sledgehammer which we located on the scene.
Q. And talk about the sledgehammer that was located.
A. We found the sledgehammer originally, we didn't know if it was involved or not, quite frankly. We left it in view and secured it as potential evidence, CSO Erb did.
Um —
Q. And this — the — it's basically the — the head of a sledgehammer?
A. It's the head of a sledgehammer without the actual wooden handle, yeah.
Q. And was there also debris — I know it's kind of hard to see — debris that was found in People's -A?
A. Yeah. Yeah. When you get closer down to — you see some of the debris that's actually here in the gutter. Once we figured out that we had a little bit more than actual just gunfire, we actually had vehicles that were in contact with each other, we also figured out that, you know, the skid led up to the — led up to the fence line, and we found some debris from the Saturn which matched actual — the color and piece of plastic which was left from the Saturn in the roadway also, so those were later secured by Officer Erb also.
Q. Okay. And then photograph -C is that a close — 11-C is a close-up of the sledgehammer?
A. Yeah, the sledgehammer head which was left.
Q. And photograph 11-E, is that a close-up of the debris that matched — basically that matched the color of the Saturn?
A. Of the Saturn, yes.
Q. Okay. And then, please, if you could identify photograph 11-D?
A. 11-D is a paint transfer of primer-gray paint which was left on the horizontal chainlink fence railing that we saw in the earlier pictures, as well as the circular piece which is used as a mount for the upright or vertical mount. And this is a actual scale picture showing actual length of paint transfer, as well as paint transfer onto the vertical mount.
Q. And all these photographs, do they accurately show what you saw back on May 14th of this year?
A. Yes, they do.
Q. Now, you'd indicated earlier that the paint transfer that you saw on the fence, you described that as — as what kind of paint?
A. It looked like a primer-gray paint, which — which is a gray, but it's a flat gray as opposed to one of the shinier gray — or shinier colors that you would see as a finalized painted color on a car.
Q. Okay.
The shell casings you located, did you have a chance to look at those shell casings and did they have any type of caliber marked on the —
A. Yeah.
Q. — those casings?
A. They showed to be a .25 caliber.
MR. HOYT: I have no further questions, Your Honor.
THE COURT: All right then. Before we begin cross-examination, I'd like to call for the morning recess at this time.
Ladies and gentlemen, keep in mind you're not to discuss this case among yourselves, not allow anyone to discuss the case with you, nor form any opinions in this matter.
Since we only have one break in the morning and afternoon, I'd like to make that a 20-minute break. So if you return at ten minutes to 11:00. Ten to 11:00, ladies and gentlemen.
Let me remind to you keep your notes in your seats and Deputy Smith will keep an eye on them for you.
Ten minutes to 11:00.
(Whereupon a recess was taken)
THE COURT: Mr. Marks. Cross-examination.
MR. MARKS: Thank you, Your Honor.
CROSS-EXAMINATION BY
MR. MARKS: Q. Good morning, Officer.
A. Good morning, counsel.
Q. I just — I was somewhat confused by some of the things you said. If I understood you correctly, you were dispatched to the Alameda Street location at first, is that correct?
A. That's correct.
Q. But somebody — for some reason, it's not important, you went over to Poplar?
A. No. Originally what happened was I — we were told over the radio that all parties had left the scene and there were no injured parties on the scene, and then Officer Garwood and Aguilar located one of the potentially involved people.
Q. Oh, I —
A. So that's why I went over to where his car was located.
Q. So you went over on the Poplar Street and that's where you found Mr. Roblero, correct?
A. Correct.
Q. Then you were not instrumental in stopping — stopping Mr. Roblero —
A. I was not.
Q. — he was there when you got there?
A. I was not.
Q. Okay.
I wanted to talk to you a little bit about — a little bit about the damage to the car.
First, if I understood — if I understood — my notes are correct, the damage on the Saturn, which is the one alleged to be driven by Mr. — Mr. — my client, was on the driver's side, is that correct?
A. That is correct.
Q. And on the . . . near the rear. I think we have a picture.
A. The driver's side rear door and rear quarter panel; as well as the left rear tire, which would have been right in that area, was flat.
Q. Were you able to examine that car yourself?
A. Not at great length, no. I that I left to Officer Erb.
Q. But you did look at it?
A. I did.
Q. When you saw it — and I'm not trying to — when you saw it, could you tell whether or not it was — were there scrape marks before the large indentation on the car, or was this like a direct hit?
A. I don't — I don't remember, counsel.
Q. Okay.
Now, the damage to the El Camino, the one that Mr. Roblero was supposed to be driving, if I understand, was also on the driver's side, correct?
A. That's correct. It was the driver's front end which actually did move a little bit into the front end of the car.
Q. We have a picture, don't we?
A. Yes, counselor.
Q. What number is that?
Okay. I'll find it.
MR. HOYT: I'm sorry.
THE WITNESS: Do you need some help, counselor?
MR. MARKS: Q. I probably do, but I think I've got it, I think I've got it. I may be wrong.
A. That's Mr. Roblero's pickup, yes, sir.
Q. I guess this is Exhibit 17. This is the car that was allegedly driven by Mr. Roblero, correctly — right?
A. Yes.
Q. And I — I imagine Exhibit A indicates the damage on the El Camino, is that correct?
A. The damage caused by the collision, yes.
Q. Yeah. And that's right near the headlight, is that correct?
A. That's correct, counselor.
Q. The headlight broken?
A. Yes, sir.
Q. I can't tell from that. Do you know?
A. The — one of the outside headlights is, right there. It — actually on the front end there's actually four; two low and two high.
Q. So the collision wasn't one where there's a — entirely where both the front end connected with another car, it's just on the left side — left side of the —
A. Well, it did — it moved in a little bit into the front end, as you can see here.
Q. Yeah.
A. But not entirely, no, it would have been more from the front quarter panel.
Q. It wouldn't be what we call a head-on collision?
A. No, it would not.
Q. All right. Now I have a picture — I've got Exhibit 14, which I believe is a — is the car which Mr. — my client was supposed to be driving?
A. Uh-huh (affirmative).
Q. And the damage here (indicating) is right on the left back door?
A. That is correct.
Q. That's passenger's side.
A. That's the driver's side, counsel.
Q. So for those — for those two cars to have contacted — strike that.
I don't think you're qualified to answer, and I'm not trying to pin you down. Thank you.
Oh, now while we have . . . I'm looking now, Officer, at Exhibit 19.
A. Yes, sir.
Q. And if I understand this right, correctly, that over here the 658 West Alameda is where you later found debris in front of it, correct?
A. Correct.
Q. Now, the question I had is, one, could you point out where the debris — the debris was found?
A. Yeah, the debris was actually in front of the residence, in the street. It was actually in the gutter which is right where the sidewalk meets the roadway, on the south side of the street, and it was actually just a little bit — if I could point to another picture, is that okay?
Q. Oh, please, if you'd help me I'd appreciate it. The problem is I don't understand it; if I don't, maybe the jury doesn't.
A. No problem.
Okay. This again —
Q. This is Exhibit 11.
A. Okay. And if we're looking at photograph -A in Exhibit 11, this again is looking eastbound in the 6 — right in front of 648 West Alameda, okay, and you can actually see the debris that was located right here in the gutter, in front of the residence.
Q. Now, I'm really confused. Assuming for the sake of argument that the Saturn was traveling eastbound —
A. Uh-huh (affirmative).
Q. — the damage would have been over here, would it not?
A. Depends on its position in the roadway.
Q. My point is that the damage was on the — if it was traveling eastbound —
A. Uh-huh (affirmative).
Q. — the damage was on the left rear door —
A. That's correct.
Q. — of the Saturn. Which indicated something came at it from over there (indicating), from — from the — from the left, from the south side.
A. From the north side, you mean?
Q. Yeah.
A. Okay.
Q. Thank gosh you're here.
Yeah. Something came at from this side, the north side?
A. Uh-huh (affirmative).
Q. Yet the debris was over here, there was no damage — if I'm not correct, if I am on the passenger's side of the Saturn there was no visible damage —
A. That's correct.
Q. — is that correct?
But the debris was up near the gutter?
A. That's correct.
Q. Okay.
You came there a little later.
A. That's correct.
Q. So . . . Okay.
Now —
A. It would — if you're asking me how the debris got there, counselor?
Q. Yeah, if you know.
A. It's not possible for me to tell. It could have been a number of factors. Because I did arrive there later, it's possible another vehicle — if the debris was out in the roadway, another vehicle could have swept it to the side. So, you know, it's not possible for me to tell you how the debris — if the accident actually occurred over here where the skid marks are, then the debris would be consistent. It's not possible for me to tell you without being there.
Q. Thank you, Officer. I wasn't going to ask you that question `cause I can understand.
A. Okay.
Q. But I appreciate your answer.
Now, there were skid marks over here on A-11 [sic], is that correct?
A. Actually, the skid marks are better marked I believe — can I grab another one?
Q. I'd love you to.
Okay. So this is Exhibit —
A. 13.
Q. — 13.
A. The skid marks are best pictured right here in picture -E —
Q. Uh-huh (affirmative).
A. — where you see the skid marks coming across the, uh — the sidewalk here and impacting the fence. And, again, this is the debris right here.
Q. Were you able to determine which vehicle impacted the fence?
A. Well, the paint transfer that I saw on the fence was consistent with Mr. Roblero's car.
Q. All right.
Let me ask you a question — and I don't know if you can answer it — what experience, if any, have you had in accident investigations?
A. I've been through a full course in basic accident school, as well as 20 years in law enforcement.
Q. And during those 20 years, you investigated accidents?
A. Yes, many, many.
Q. Did you — and were you arriving at — did you arrive at conclusions as to what happened as — you know . . .?
A. Yes, I did.
Q. Can you tell the jury, in your opinion, what happened — based on what the skid marks — how this accident — I'm calling it an accident — but how this contact between those two cars occurred?
A. Well —
Q. I realize you don't know, but if you have an opinion. I'd appreciate guessing — giving it.
A. Well, if I had — if I had to reconstruct it — and, again, I don't know that I'm entirely qualified to do this, okay, so I'll be straight-up with you.
Q. Just do it on your own experience.
A. Okay. Based on my own experience, I think what happened was the El Camino was traveling westbound, the Saturn was traveling eastbound. I think that the — at some point they collided in the roadway area here (indicating). I think that the Saturn disengaged, coming around the sidewalk side and then turned up a lane. I think the Ranchero — I'm sorry, the El Camino, when it disengaged, it continued forward into the fence line.
Q. Thank you very much, Officer, I appreciate that testimony.
Print that up for me, will you?
Oh. I should . . . And where did you observe the shell — in any of these pictures can you tell the jury where you observed the shell casings?
A. Yes. The shell casings are best observed in picture -E here. One is under this pylon, one is under the second orange pylon. One is on the sidewalk directly to the rear of this station wagon on the southern sidewalk area.
Q. Now, if I — are you familiar with the weapon that — well . . .
A weapon that ejects shell casings, am I not correct in saying it's a — it's an automatic of some sort?
A. It's a semiautomatic.
Q. And when it's fired, the shell casings jump out — when it's fired, the shell casings — the empty casings jumps out and the bullet goes forward, is that correct?
A. Actually what happens is there's a small metallic pin inside of the gun case — or the gun housing itself. When the slide comes back, the casing which is empty hits that pin and is ejected, as opposed to jumping out; it's ejected to the side typically, out of a small hole.
Q. Does it go directly to the side, or does it go to the side and a little bit back?
A. It — there — it's — a ballistic expert would be much better qualified than that. I can tell you I've seen them go to the side, I've seen them go up, I think —
Q. I think we have an expert coming, so I won't burden you. I appreciate your candor, Officer.
I think I'm still going to review my notes.
A. Okay.
MR. MARKS: I have nothing further. Thanks, Officer, I appreciate it.
THE COURT: Mr. Hoyt?
MR. HOYT: I have no further questions, Your Honor.
THE COURT: Witness excused, gentlemen?
MR. HOYT: Yes.
MR. MARKS: Yes, Your Honor.
THE COURT: Free to go.
THE WITNESS: Thank you, Your Honor.
MR. HOYT: People would call Officer Erb.
CHERYL ERB , a witness called by the People, having been duly and regularly sworn, testified as follows:
THE WITNESS: I do.
THE CLERK: Please be seated.
Please state your name and spell your last name for the record.
THE WITNESS: Cheryl Erb. E-R-B.
THE COURT: Good morning.
THE WITNESS: Good morning.
THE COURT: You may proceed, counsel.
DIRECT EXAMINATION BY
MR. HOYT: Q. Good morning, Officer Erb.
A. Good morning.
Q. Can you please tell us where you work?
A. I work at the Manteca Police Department.
Q. And what are your duties there?
A. I am a community service officer, which entails collecting evidence at crime scenes, processing crime scenes, taking police reports.
Q. Okay. And how long have you worked for the Manteca police officer [sic] as a CSO?
A. Approximately 16 and a half years.
Q. And during that time approximately how many crime scenes have you processed?
A. Hundreds.
Q. In other jurisdictions sometimes agencies have what's called "field evidence technicians." In your jurisdiction are CSO's or community service officers, do they work as field evidence technicians?
A. Yes, we do.
Q. And have you been to school for training in that area of collecting evidence and those types of things?
A. Yes, I have.
Q. And you also received training from other officers when you first were — were hired by the Manteca Police Department?
A. Yes, I did.
Q. I want to take you back and ask you a few questions about an incident that you helped investigate back on May 14th of this — of this year, 2003, specifically a couple different areas, but specifically the 600 block of West Alameda, and also in the area of Poplar.
Do you recall being requested to go to a certain area following a call of shots fired back on May 14th?
A. Yes, I do.
Q. Okay. How did that come about? Where were you when you received the call and what did you do?
A. I was in my police vehicle, and I was requested to respond to the — I believe it was 700 block of North Poplar, to assist in evidence collection.
Q. Okay. Were you working by yourself that day, or with a partner?
A. I was by myself.
Q. And were you dressed that day as you are today?
A. Yes, I was.
Q. And about what time did you go to the area of Poplar, if you recall?
A. Uh, I believe it was . . . It was about 17 — past 5:00 o'clock. I don't have the exact time.
Q. So it was light outside?
A. Yes, it was still light outside. It was late afternoon.
Q. Okay. And specifically where on Poplar did you go?
A. 700 block.
Q. Okay. And what did you do when you arrived to that area?
A. I met with Sergeant Cook, and he requested that I process a vehicle there at the scene for fingerprints.
Q. Okay.
And this particular car that you processed, what kind of car was it?
A. Can I refer to my report?
Q. If that would refresh your memory, please.
A. (Perusing document.)
It was a 2003 Saturn L200, 4-door, silver in color.
Q. And you indicated that you processed it for latent fingerprints. How did you go about doing that?
A. I dusted for fingerprints with my field evidence kit.
Q. Okay. And what areas of the car did you dust?
A. I dusted the exterior and the interior.
Q. And approximately how many fingerprints did you lift?
A. I believe I lifted 14. 14 partial latents from the vehicle.
Q. And when you say "lift a fingerprint," can you explain to the jury how is it that you go about doing that?
A. When you lift a print you — you use a powder, we have a black powder, with a — a fine brush, and we dip the brush into the powder, and you lightly dust over a surface. The powder will adhere to the oils left by a fingerprint.
And you take a fingerprint tape, about this wide (indicating), and you lift — literally lift the powder lift right off of the surface. And then that's later transferred over to a card.
Q. And jumping ahead, later — at some point later on that night did you place some items in evidence back at the police department?
A. Yes, I did.
Q. Okay. And were some of those items, did they include those latent prints that you had recovered?
A. Yes. Those were later booked into Evidence.
Q. Now, you indicated that you took some — actually, maybe you didn't indicate.
Did you take photographs of this gray Saturn you talked about?
A. The silver Saturn, yes, I did.
Q. Okay. "Silver," sorry.
A. Some say "gray," some say "silver."
Q. And do you recall approximately how many photographs of that vehicle you took?
A. I'd have to refer to my notes to give you an exact number.
Q. Okay. Was it a number, or a few?
A. It was a — a few.
Q. Okay. Showing you People's Exhibit Number 14, photographs -A through -F, do you recognize what's contained in those photographs?
A. Yes, I do.
Q. And how do you recognize those?
A. Uh, I have the thumbnails here of my photos that I took, and they're also logged here.
Q. Okay. When you say "thumbnails," are you talking about smaller photographs that are taken from a computer?
A. Yes.
Q. Okay. And, actually, this is pretty cool; did you take those photographs with a digital camera?
A. Yes, I did.
Q. And then those are put on a CD-ROM, and actually when those are submitted to the DA's office they come on a CD-ROM?
A. Yes, they do.
Q. Okay. So the thumbnails is actually the smaller digital pictures of the larger ones we have?
A. Yes.
Q. If I was high-tech maybe we'd have them on Power Point or something.
A. That would be nice.
Q. After you took photographs of the Saturn at that scene, what else did you do?
A. I took photographs, I processed the vehicle, and I collected evidence.
Q. Okay. What evidence, if any, did you collect?
A. I collected a CD, and a scale I believe that was located near the vehicle.
Q. And did you also take photographs of those items?
A. I don't believe that I took photographs of those.
Q. Okay.
A. Um . . . I — after collecting that evidence, I was requested to take additional photos, a few home — a few houses down.
Q. Okay. And where did you go to take additional photos?
A. The address there was 720 Poplar.
Q. Okay. And who directed you to take photographs at that location?
A. That would be Detective Beermann.
Q. And what, if anything, did you photograph at that location?
A. I believe photographs were taken of some clothing that was found in the front area of the home.
Q. And —
A. Side — front side, I'm sorry.
And a firearm.
Q. Okay.
Let me show you some other photographs and ask you if you recognize them.
Showing you first of all, what's been marked as People's Exhibit Number 16, photographs -A through -F, do you recognize those photographs?
A. Yes, I do.
Q. Okay. And how is it that you recognize them?
A. Uh, from my thumbnails, and also I listed on my report.
Q. And are these the items of clothing that you described that you took photographs of that were located at the address on Poplar?
A. I believe a portion of them. I'm not sure that all of them, or I did not collect them.
Q. Okay. Where did you photograph these items of evidence at?
A. These particular photos were taken I believe at the police department.
Q. Okay. And do these photographs accurately show the items of evidence you remember seeing at the police department back on May 14th of 2003?
A. Yes.
Q. Okay.
Okay showing you People's Exhibit Number 12, do you recognize what's in photographs 12-A and -B?
A. Yes.
Q. Okay. How do you recognize those photographs?
A. Those are also my thumbnails, and in my list on my report.
Q. And do you recognize what area this was —
A. Yes.
Q. — the location?
A. Yes, I do.
Q. Okay. Where was it?
A. That was at 720 Poplar.
Q. And showing you photograph -C and -D, did you photograph that area as well?
A. Yes, I believe that's where the clothing was located.
Q. Okay. You didn't actually see the clothing there, you took photographs of where it was located?
A. Correct.
Q. Okay.
And then photograph -E, do you recognize what's in that photograph?
A. Yes, I do.
Q. Okay. How do you recognize that?
A. That is in my thumbnails and in my report.
Q. Okay. And where was this photograph taken?
A. This was taken on the side yard area, on the north side of the home, I believe on Poplar.
Q. And photograph -F, do you recognize what's in that photo?
A. Yes, that's the side fenced area where the firearm was located.
Q. Was it — and, again, when you took the photographs, do you recall where exactly it was located? You didn't recover the gun, is that correct?
A. Right, I did not.
Q. Okay. Do you know where it was located?
A. On the side area here, as depicted in number -F.
Q. Uh-huh (affirmative).
A. That is where I meet with Detective Beermann.
Q. Okay. Okay. And do these photographs accurately show what you remember seeing and photographing back on May 14th of this year?
A. Yes.
Q. Okay. Thank you.
Okay. Once — once you finished over — well, let me ask you this: Did you do anything else over in the area of Poplar?
A. Uh, no, I did not.
Q. Okay. Did you go to a different location at that point?
A. Yes, I did.
Q. Okay. Where did you go?
A. I then went to the 600 block of West Alameda.
Q. Okay. And when you went to that location, what were your responsibilities there?
A. I met with Officer Mraz, and he requested I take photographs at the scene of some casings, damage to a fence, damage to a vehicle, debris that was left in the roadway, and some casings.
Q. Okay. And so all the photographs that were taken over in the area of 658 West Alameda, you took those photographs?
A. Yes, I did,
Q. Okay. Did you also collect any items of evidence?
A. Yes, I did.
Q. Okay. Specifically what did you collect?
A. I collected three shell casings;
A sledgehammer, the end of a sledgehammer;
And some vehicle debris.
Q. I want to show you some items of evidence and ask you some questions about them.
First of all, People's Exhibit Number 3, do you recognize what's in that exhibit? Or recognize that — that exhibit?
A. Yes, I do.
Q. And how do you recognize that?
A. It has my initials and the date on the package.
Q. Can I ask you to open that exhibit, please?
A. Sure.
Q. Thank you.
Can you please describe the contents of People's Exhibit — I believe it was Number 3, yes.
A. There are three white City of Manteca Police Department envelopes inside, each sealed with my initials and dated 5-14-03.
Q. Okay. And can you open those, please.
A. Sure.
Q. Okay. Can you please describe what was located inside People's Exhibit Number 3, which were located inside three white envelopes?
A. They contain three — each envelope contains one shell casing.
Q. Okay. And are these the .25 caliber shell casings that you located in the street near 658 West Alameda?
A. They appear to be, yes.
Q. Okay. And what's the reason for packaging them separately and placing them — it appears that they're placed in — I almost want to call these "dime bags." What are these called?
A. Just Ziploc baggies.
Q. Ziploc baggies.
A. Yeah.
Q. Okay.
What's the purpose for placing those in those baggies?
A. We don't want cross-contamination. But, actually, when I booked these in, they were originally in the envelopes. The Ziplocs were done by, I'm assuming, Department of Justice when they did their analysis.
Q. Okay. Thank you.
A. Do you want these back inside?
Q. Yeah, please.
Thank you.
A. You're welcome.
Q. Officer Erb, showing you People's Exhibit Number 10, do you recognize that exhibit?
A. Yes, I do.
Q. And how do you recognize it?
A. It's my tag number, my case number.
Q. Okay. And can you please describe what — what that is?
A. This is the vehicle debris that was collected at the West Alameda address.
Q. Showing you People's Exhibit Number 22, do you know what that is?
A. Yes, I do.
Q. Oh, I'm sorry.
A. This is the sledgehammer that was collected at the West Alameda address.
Q. Okay.
A. The — the end, I'm sorry, it's not hammer, it's just the end piece.
Q. Okay. And exactly where was that located, if you recall?
A. Uh, I believe it was in the — the street area.
Q. Okay.
What — do you know if — were these items photographed before they were moved and collected?
A. On my arrival, I took photographs where they were when I arrived. They were photographed prior to my collecting them, yes.
Q. Okay.
And then showing you People's Exhibit Number 21, can you describe what that is, please.
A. This is a CD, Keith Sweat CD, and a gram scale, electronic.
Q. And were these the items that you had talked about earlier that were found outside of the Saturn?
A. Yes, they were.
Q. Okay. The items that you had indicated that there were not photographs taken but they were collected?
A. Yes, they were.
Q. And then showing you People's Exhibit Number 20, can you tell us what People's Exhibit Number 20 is?
A. These are the 14 latents that were lifted from the Saturn, that I booked into Property.
Q. Okay.
And to your knowledge did you ever request that these latent fingerprints be sent anywhere for comparison?
A. I don't believe so. I booked them in, and usually that's detectives . . .
Q. That was done by someone else?
A. Yes.
MR. HOYT: I have no further questions, Your Honor.
THE COURT: Cross-examination?
CROSS-EXAMINATION BY
MR. MARKS: Q. Good morning, Officer.
A. Good morning.
Q. Did you find any glass around there that the — I didn't see it on your list, but . . .
A. I don't recall seeing any glass, no.
MR. MARKS: Okay. That's all I have. Thank you very much.
THE COURT: Any redirect?
MR. HOYT: No, Your Honor.
THE COURT: Witness excused, gentlemen?
MR. MARKS: Yes, Your Honor.
MR. HOYT: Yes.
THE COURT: Okay. Free to go.
A. Yeah.
Q. I want to take you back and ask you some questions about something that happened back on May 14th of this year, 2003. Do you remember drinking some beer with some friends at a certain house back on that day?
A. Yes.
Q. Okay. Whose house were you at?
A. I was at a friend of mine's house, named Mike Coffman.
Q. You're going to have speak up louder again, I'm sorry.
A. I was at a friend of mine's house, named Mike Coffman.
Q. Mike Coffman. Is Mike Coffman a Sureno gang member?
A. Yes.
Q. A couple years ago was he stabbed at the Chevron there in Manteca?
A. Yes.
Q. By some Nortenos?
A. Yes.
Q. And where does Mike Coffman live?
A. He moved out of town.
Q. Okay. But back on May 14th of this year, where did he live?
A. Out of town.
Q. Okay. Out of town?
A. I'm not saying the town because I don't want to get him involved in it.
Q. I'm not asking you to say the town.
Where were you guys drinking at?
A. In front of his father's house, in Manteca.
Q. Okay. And what street is that on?
A. Alameda.
Q. And specifically where on Alameda, if you know?
A. Um, maybe three, four houses from the corner of Alameda and Greenbrier. I can't remember the new street they just put in there.
Q. Is it across the street from a bunch of new homes that have been built?
A. Yes.
Q. And you said you were there — it was Mike Coffman's dad's house?
A. Yes.
Q. And — I'm sorry?
A. They're renting or something like that there.
Q. And you guys were drinking?
A. Yeah.
Q. Who — who was over there?
A. It was just me, Mike's dad, and the uncle and his wife, and a so-called friend of mine, you know, his name is Fabian Perez.
Q. And Fabian Perez, does he claim any gang membership?
A. Well, everyone in Manteca supposedly thought he was a southerner, just because he talked to us, but he was raised with my little brother. Neither my brother nor him are gang members.
Q. Okay.
A. They were just, you know, associated you know, by me being big brother.
Um, but he does have four dots on his hand.
Q. He does have four dots on his hand?
A. They were put on him, not by choice, they were made, put on him.
Q. I'm sorry?
A. They were put on him by his older brother.
Q. Is his older brother Norteno?
A. Yeah.
Q. Okay.
Is that something you've seen before where brothers — one may be a Norteno, one may be a Sureno?
A. Yeah.
Q. So you were there with — with Fabian Perez, yourself, Mike Coffman's dad, Mike Coffman's uncle?
A. Yeah.
Q. Does his uncle claim any gang affiliation?
A. Nah.
Q. What about Mike Coffman, was he there?
A. No.
Q. And how much did you drink?
A. I drank a 40 of Budweiser, and I just cracked open a brand-new bottle.
Q. And about what time of the day was this that you — that you —
A. Like 3:00 or 4:00 or something like that, a little after 4:00 or something.
Q. How long were you over there at that — at that house?
A. All day.
Q. All day?
A. (Nods head up and down.)
Q. And when did you first start drinking the 40?
A. Like an hour before I got there, and then like we were doing other things, messing around with the dad, you know, helping him out. And then I got to the second one. Maybe like an hour, a half an hour. You know, I was drinking it slow, I wasn't trying to get drunk, act stupid.
Q. Okay. Were you feeling drunk?
A. No. I was buzzing, not drunk.
Q. Okay. At some point when you were at the house drinking, are you drinking outside?
A. We were drinking outside all day.
Q. Out in front of the house?
A. Yeah — well, actually not all day. We just — right when shit started happening we just pulled out lawn chairs, sat down, getting ready to relax. We were like helping the dad moving around. We got a beer, started relax, end of the day.
Q. Okay. So you were doing some stuff and then you started to relax, pulled up some lawn chairs in front of the house?
A. (Nods head up and down.)
Q. Okay. What happened when you pulled up the lawn chairs and you were in front of the house?
A. I was sitting down, Fabian brought it to my attention that we were going to be approached by somebody. I looked up and I saw a black guy. I know who he was but I couldn't put a name to his face right away. And I seen these other guys, not even knowing anything about `em or who they are, where they're from, just there was three other guys. And —
Q. When you saw those guys, where did you first see them?
A. Across the street, there was a white car. I didn't know what — what make it was, it was a newer white car, and there was guys getting out of it. And I thought — I thought they were there for Mike's sister.
Q. How many guys got out of the car?
A. Four, I believe, or three or four, something like that.
Q. And you said that you saw a black guy who at first you didn't recognize?
A. (Nods head up and down.)
Q. And did you see where the black guy got out of the car, did you notice?
A. I think it was passenger or — it was passenger on either the front or backseat, but I know it was the passenger.
Q. Did you see who got out of the driver's seat of the car?
A. Yeah, but to tell you the truth, it doesn't look like him today, you know. I mean, it was different, it was a couple months ago, you know. But yeah.
Q. Well, describe — the person that got out of the — the driver's side of the car, describe how that person looked then.
A. To me?
Q. Yes.
A. Okay. Well . . . Like little darker skin color than mine, all I remember is that it was a tank-top, white tank-top — `cause everything happened so fast. I remember a white — he was wearing a white tank-top and one of his arms was sleeve down. I don't know if it was just one or it could have been both. But I was just looking like this `cause I was unaware (indicating).
And he was all bald-headed. He looked like a Mexican to me, full-blooded Mexican. I don't know if maybe he was a light-skinned Chicano or whatever, you know, got sunburned real bad that day or something.
Q. And was this person tall? Short? Skinny? Not skinny?
A. About my height — my height. Heavier than me, maybe at least 240.
Q. How tall are you?
A. I'm about five eight, five nine.
Q. And you said at least 240?
A. Yeah.
Q. And the other people that got out of the car, other than the black male, what did they look like?
A. One was light-skinned. They were trying to cover themself as much as they could, one of `em didn't really care. The other one, he was acting scary, like he covered his face with a hooded sweater or something, or hooded jacket.
That's all I could say. I didn't really get too much of a good look at the people in the back, just what was approaching me fast.
Q. So if I understand correctly, the person you've described as weighing 240 —
A. Probably more like —
Q. — got out where? From where?
A. The driver. Well, at least I'm thinking the driver. You know, everything happened — `cause like I was sitting down — like say this is the sidewalk, and I had to look over like a little Datsun truck with a camper. So when I stood up like this, all I seen was a black dude. After that I sat back down, and my friend told me, "Hey, that's that dude Nigger D." That's what they call him, it's just like a nickname.
I get up again, I look, he ain't bother nothing. Then I didn't realize the other guys that were with him, you know, I'm only focused about this one guy `cause that's what they're telling me about.
Q. Okay. You said that Fabian said that that was Nigger D.?
A. Yeah, that's what they call him, I guess it's a nickname he has.
Q. Did you know him from before?
A. Yeah.
Q. Okay. Did you know his name?
A. Yeah.
Q. What was his name?
A. I known him as "Nigger Dwayne."
Q. "Dwayne"?
And when these people got out of the car, what did they do?
A. Well, no one really did nothing. But the black guy, you know, he came up to me, he saw that I wasn't backing down, grabbed a two-by-four out of a truck `cause they approached us so fast, I said, "What, do you feel more of a man, you know, with more of your buddies." `cause I've been hitting him up the last week before that, about numerous times to fight, you know, because of something he threatened my brother in the past about.
Q. So you had had prior confrontations with Dwayne.
A. Yeah. And every time I confronted him, it would be one-on-one fight, and he didn't want to fight. You know. He threatened my brother, you know, I'm just there to back him up.
Q. So on this date did they park across the street from where you were at?
A. Yeah.
Q. And they came across the street?
A. (Nods head up and down.)
Q. And you said that Dwayne got something from the back of a truck?
A. Yeah.
Q. Where was the truck?
A. Like — there was — there was a little Datsun there — there was two of them, my — there was two trucks, they were like identical, they were taking the motor from one, putting it into the other —
Q. Taking the "mortar"?
A. Motor, to put into another similar.
But there was two; one without a camper and one with. And the one that didn't have a camper, he pulled a two-by-four out of it. I think it was the one without a camper.
Q. So Dwayne pulled out a two-by-four from the truck, and then what did Dwayne do?
A. He like tried to scare me with it, like, "Oh, what, what," you know, like trying to pump fear into me.
Q. Where were the other people at when — the other people with Dwayne, where were they when he grabbed that two-by-four?
A. None of `em were near Dwayne, they were on the front part of the truck, Dwayne was by the back of the truck. All the three were over here, and he was over here. It was basically . . .
Q. And once Dwayne grabbed this two-by-four and did what you've described, what did you do at that point?
A. Well, when he started coming at me with the two-by-four, I like backed up a little bit `cause I'm like unaware, I'm looking at everything, trying to catch everything, what's going on. And he started talking shit to me, and I told him, "Dude, do you feel more like a man `cause you're with four of your friends and with a weapon?" And I told him right there in front of his friends, I go, "I hit you up a week before numerous times and you couldn't fight me one on one, what kind of man are you?", and they got mad.
A. Almost all of them.
Q. — are southerners or from other countries or —
MR. MARKS: Your Honor, I'm going to object, there's no foundation.
THE COURT: Sustained. Next question.
MR. HOYT: Just asking to explain it. That's fine.
Q. Once you heard that language, "scraps," and you said you started to back up, why was it you started to back up?
A. I was — a pistol or a little handgun pulled out, but it wasn't pointed at us, it was just like, Dwayne, you know, to pump fear, you know, it was just like, "Oh, we got chrome" — you know, "We got a gun," you know, you know (indicating). Still, we were like "What, what," but we're backing up, you know.
And then when we started actually seeing the barrel come at us, that's when we just ran in the house.
Q. Okay. Who was it that had the gun?
A. Well . . . Man . . . It was the guy that I explained — that I described. `cause it doesn't look like him today. Seriously, I'm not saying anything, but it was the guy I described just a few minutes ago. And when all this happened, I didn't really know that person's name. I'm not trying to say it wasn't that person, but I didn't know what he looked like until that second, or his name. All I knew it was a nickname, and still not even knowing who the person was.
Q. When you saw that person that day with the gun — you've described a person getting out of the car. Did the person that got out of the — the driver's seat of the car, was that the person that had the gun?
A. Yes.
Q. And that person that had the gun, back then did you realize — did you make a connection with a nickname that you thought that that person had?
A. I didn't know his name even when he was there at the — I — they were telling me all he's from this gang, that he was from Hayward, some gang called DGF. And I'm not even knowing, you know, who the guy is or where he's from or what he's about, but people's are telling me, "Hey, that's fucked up what happened over here," they call him — you know, this is friends of his that, you know, were saying things about him.
Q. Okay. I'm not going to ask you anything that anybody else may have told you.
A. Well, I don't know — this is like part of the story, because I didn't really know this man myself.
Q. Okay.
A. You know. He's just like somebody they just picked out of a crowd and said, "Here, go fuck with him," at that point in time, you know.
Q. The person that had the — the person that was in the driver's seat of the car, and that had the gun, at some point later that night were you shown that person by the police?
A. Yeah.
Q. And the person that you were shown later on that night by the police, was that the same person that you saw get out of the driver's seat of the car and with the gun?
A. Well, to tell you the truth, there was two people that looked — I'm not saying — there was another guy there, they called him . . . by a nickname "Bud" as well, but you know, if you know the full — they looked identical. And I was like confused when we got there. And I left, and then my little friend, Fabian, he went back as well, `cause they took us, you know, separate at first and then they took us both again. And he goes, "No, that's the guy right there." `cause he had more — he seen him more, you know, `cause I was trying to do something, you know, to protect us, but he had the eye contact more on that person to identify him.
Q. Okay.
Let me ask you this: Going back to the time where you saw this gun, and you started to retreat, where did you and Fabian retreat to?
A. In the doorway inside the house, `cause we were like in a little patio area. It's not even like a front yard. Like half a patio, and up his lawn.
Q. And once you retreated to this patio area, what did the other people that were confronting you do?
A. They went up to the door, tried to get in, tried to scare us with the pistol. You know. Basically tried to get in to shoot, get in the house to shoot.
Q. Did anyone point a gun at you?
A. Not at me, but like when they were trying to get in you could see the gun in the window, but it was pointed at somebody, but he moved I guess pretty quick because he should have been shot. If they were really intending to shoot, you know.
Q. Were any shots fired at that point?
A. Not at that point.
Q. And how long did — did that confrontation right there happen — or take place?
A. It seemed like forever, man, you know, when you're in a position like that it seemed like forever.
Q. Okay. What did the gun look like?
A. All I know is it was a small handgun, automatic, chrome.
Q. And you described the people that got out of the car, and you described the driver, you described knowing Dwayne, and the two people — I believe you described two — other people that got out of the back. What did they look like, as far as were they tall? Short? Skinny? Race?
A. Skinny, two skinny — um, they were light-skinned but, you know, I'm Mexican and I'm light-skinned. They were like the same color, you know, they look white or they don't look white or they could have been white, could have been Mexican, you know. It's just their colors and the way they were dressed. Like how you say, there's white guys out there that shave their head and try to be a Mexican. That's what I see a lot around here lately.
Q. And those two guys, how were they dressed, if you remember?
A. I think they were some like regular pants, and some khaki pants, like dickies, something like that. I know one of `em had shorts on, I can't remember which one it was.
Q. What kind of shirts, if you recall?
A. They were like trying to cover up, you know. Like if you were coming to do a robbery, throw a hood on, you know, come out, "What's up."
Q. And the person that had the gun, you described that person's weight as being approximately 240?
A. Had to be, `cause I just got off my job and I was like 200 at that time. I lost a little more weight `cause I was fucking around on the street, you know. But.
Q. And did that person have a bald head? A shaved head? Describe the person's hair.
A. It was shaved, like shorter than this (indicating) or probably the same length.
Q. And did you see if that person had any tattoos?
A. I just remember one arm being tatted down, because like when — I don't know if they were trying to get away, is when I saw that — I only seen one sleeve on and the other one like they were trying to get away but take the thing off because it was too hot or — I can't explain.
Q. Do you remember what — what arm had the tattoos on them?
A. I think it was — is the right. Alls I know, they were sleeve down the shoulder — I mean from the elbow, from the shoulder like this, to the elbow (indicating).
Q. Now, once — once the confrontation ended at the porch
Q. Now, you had mentioned some damage. There seems to be some damage in the right rear door near the back fender, on the driver's side.
A. (Nods head up and down.)
Q. Is that where your two cars came together?
A. Uh-huh (affirmative).
Q. And is it your testimony, sir, that this car crossed over the line toward your car and hit the front — and this part collided with the front of your car?
A. It — yes, but it's kind of hard to explain because the way of the angles of the car. And it's not to try to say he's a liar or I'm a liar. It's just the way how everything was tight in here, that's the way the cars hit.
Q. Uh-huh (affirmative). So, in other words, your car, the front fender of your car, came in contact with the back —
A. Yes.
Q. — rear door of their car?
And it's your testimony — is it your testimony that this car, the Saturn, swerved over directly to force a collision with you?
A. Maybe not to force a collision. Maybe I had said that at the time, because like I said, there was traffic and when I seen him — when I was trying to see him turn around, you can't see straight through cars. So I pulled to the side a bit so I could get a peek over, because I'm going to box car.
Q. Okay. Then we'll change my — my — I may — maybe I made a wrong statement —
A. Yes, sir.
Q. — I apologize to you if I said "force" a collision.
That the Saturn crossed the line into the area that your car was in, and as a result of that crossing your front left fender collided with the back part of this car, the Saturn that I show you right here (indicating).
You're smiling. How come?
A. `cause basically it's kind of the same question.
Q. Yeah. Well, I just — I remember — I removed the "forceful." That perhaps was the wrong question.
A. Maybe —
Q. The jury's going to decide that question.
What —
A. Yes.
Q. — I'm asking you is whether it's your testimony that your car collided with this Saturn after it crossed the line and it was — you know, and came in collision — came in contact with your — your front fender?
A. Yes.
Q. Okay.
Now, what happened — now, what happened to your car after that occurred?
A. Well —
Q. You can sit down.
A. I tried to drive it home from when they — from when they pulled me over, you know. But couldn't really go nowhere, so I ran and kicked my own fender so I can be able to drive, to push it in.
Q. Okay. I didn't — I apparently gave you the wrong question.
After the collision which you say occurred in the westbound lane, and that was the lane you were traveling in, what happened to your car? For example, did it stop? Did it come in contact with something else?
A. I couldn't really remember that much. I knew we were stuck together and my foot was still on the pedal. It — it could have been stopped, you know, because I laid down, I wasn't seeing anything where I was going.
Q. Well, did your car come in contact with the fence that's on the east side of that —
A. Yes.
Q. — property?
A. But I didn't realize that until I got back up from my seat.
Q. Okay. But it did come in contact with the fence —
A. Yes, it did.
Q. — is that correct?
What part of your car came in contact with the fence, sir?
A. Almost all the driver's side.
Q. All the driver's side?
A. Almost.
Q. And where — after this collision, what happened to the other car? I don't mean immediately after, I understand the testimony was that they drove — everybody drove away. But before everybody drove away, what happened to the Saturn?
A. I don't remember, sir, right there at the time.
Q. Okay. At what — at what time during this collision that you speak of did somebody — did the driver point a weapon at you which was no more than three and a half feet away from you?
A. When we collided we were stuck together, and we were door to door, and —
Q. And that was after shots that were fired, is that correct?
A. No.
Q. Oh, that's before the shots were fired?
A. No, like when we were stuck . . . My vehicle's made out of steel, that car's made out of aluminum, you know. So when my car hit, it got stuck into that tinfoil, you know, the metal in the car. And it was like — my car was still going `cause my foot was still on the pedal and we were stuck together dragging a little bit; not saying we drove for a long time, it was just for that moment. So we were door to door, and I was still up, I was looking. But then I see the gun and all I remember saying is — oh — I cussed like, "Shit, I'm getting shot at." And all I remember is just seeing a hand and a barrel and just — we were stuck, it was all happening so fast and pa-pa-pa, and the release. And when I had laid down — when I seen him start to point the gun I laid down, right. When I came back up, I looked around and I'm — the middle of my car is like going — it's a trip. The middle — the fence pole was in the middle under my car and I was just about to hit the Jeep.
Q. Okay. Now, I want to ask the question I asked you just a moment ago.
A. I'm sorry.
Q. I asked you a moment ago whether the shots that you had reported — on your testimony — you remember your testimony with the district attorney —
A. Yes, but I also I was buzzing.
Q. Let me finish, please.
A. Sorry.
Q. You told him that some shots were fired and that it hit your car?
A. Yes.
Q. Okay. What I want to know is were those shots fired before you saw that weapon three and a half feet away from you, or after?
A. It was right, same time as the impact. A little bit after.
Q. So the gun was pointed at you, correct?
A. (Nods head up and down).
Q. "Yes" or "no"?
A. "Yes."
Q. Okay.
And he fired directly at you.
A. Yes.
Q. Okay.
What did he hit? Three and a half feet away, what did he hit? Lassell.
MR. MARKS: I always thought detectives were higher than sergeants. I learned something today.
THE WITNESS: Yeah, it's confusing sometimes.
GREG LASSELL , a witness called by the Defendant, having been duly and regularly sworn previously, testified as follows:
DIRECT EXAMINATION BY
MR. MARKS: Q. Officer, I just had a few questions. You came — after this incident was called to your attention on the 14th of May, you had an opportunity to interview Mr. Roblero, did you not, sir?
A. Yes, I did.
Q. And when — during that interview he — did he tell you of the confrontation in front of his house with Mr. Harris and another man who had a gun?
A. Yes.
Q. Now, did you tell you that he used a shov — picked up a shovel and saved it — in more or less in self-defense, at that time?
A. What he told me was that when he saw Mr. Harris and the others approaching he was in the garage area or near the garage area of the home. And he grabbed a shovel and just kind of rested on top of it (indicating) because he had seen one of the gentleman had armed himself with a two-by-four.
Q. Thank you. Yeah. More or less in a self-defensive effort, correct?
A. Yes, in case something should transpire.
Q. You talked to him about what happened when the accident occurred on — on Alameda Street, did you not?
A. Yes.
Q. And did he tell you that the . . . The — one of the shots that were expended during the — from this Saturn in the case went through his window, his side — his passenger — excuse me, his driver door window?
A. No.
Q. He did — he did give you his version of that accident, did he not?
A. Yes, he did.
Q. And he told you that the Saturn swerved into his car and created the problems, is that correct?
A. Yes.
Q. Are you satisfied with — and did you examine the area in which the accident occurred after that?
A. Yes, I did.
Q. Did what you saw seem to jibe with his explanation of the accident?
A. I didn't see any significant evidence to support his statement. There was no physical evidence in the middle of the roadway to substantiate that.
Q. If I remember right — I don't know if I asked you or another officer — the shell casings were found on the eastbound lane, correct?
A. Yes.
Q. And was the fence upon which Mr. Roblero said he got hooked up also on the eastbound lane?
A. It was on the south side of the roadway.
Q. So that — excuse me. Yes. All right. I got to figure out — I'm going east — I'm real bright, give me about an hour, I'll figure it out. Uh, this is east, so that'd be south. Okay.
So what we're saying is that the — the debris that — the — the shell casings and other things were found on the right-hand side of the eastbound lane, which would be the south side —
A. Yes.
Q. — correct?
I don't have further. Thank you, Officer.
THE COURT: Mr. Hoyt.
MR. MARKS: Thank you, Sergeant.
CROSS-EXAMINATION BY
MR. HOYT: Q. What some stripes will do, huh?
MR. MARKS: You bet.
MR. HOYT: Q. Sergeant, the shell casings that were located, you don't have any idea if those shell casings were run over by any cars, or moved, do you?
A. It's — it's very hard to say. They could have very well been run over at the time, because after the shooting I know that the scene was not immediately secured, because we were dealing with the other issues involving the — the containment of the persons. So I know that area wasn't secured at the time, we didn't know exactly what we had at that point.
Q. When you interviewed Angel Roblero, did you notice any signs of intoxication?
A. No.
Q. And, again, approximately what time did you interview him?
A. I interviewed him about 7:30 p.m. that evening.
Q. Do you recall how he was dressed?
A. T-shirt, maybe wearing a pair of baggy pants or sweatpants.
Q. Do you recall if the T-shirt was blue?
A. Yes, light-colored blue with gray.
Q. And did he have a blue rag hanging out the side of his shirt or pants?
A. I believe he did.
Q. Did Mr. Roblero tell you that he himself had a gun?
A. No, he did not.
Q. Did you jam him up on that pretty hard?
A. Several times.
Q. How would you describe Mr. Roblero's demeanor during the interview?
A. Um, very cooperative. He provided as much information as he possibly could. I believe he was in the interview for a good 40, 45 minutes. So he was very detailed in his explanation of what had occurred.
MR. HOYT: If I could just have a moment, Your Honor.
I have no further questions.
THE COURT: Mr. Marks?
REDIRECT EXAMINATION BY
MR. MARKS: Q. Just one, Officer.
A. Quite all right.
Q. It's a lifetime habit I got to start changing, "Sergeant."
When you interviewed Mr. Roblero, had you had the opportunity to — and after — and before he gave you his version of how the accident happened, had you had the opportunity to view the scene, or did your — did your feelings that what he told you were inconsistent with what you observed come after you had gone out to see the scene?
A. I had gone out to the scene prior to coming in to interview him, so I did have an idea of what the scene looked like and possibly what had transpired.
Q. Did you call that inconsistency to his attention?
A. Yes, I did.
Q. Did he explain it?
A. He tried to explain it in more detail.
He's very talkative, and he's somewhat difficult to understand at points. But he was able to get I think most of the point of what he was trying to say across to me. So, yeah, I did understand what he was saying.
Q. Thank you, Sergeant.
I have nothing further.
RECROSS-EXAMINATION BY
MR. HOYT: Q. Sergeant, this accident scene, was this a difficult accident scene to evaluate?
A. Well, there wasn't any significant evidence to draw any conclusions from because other than a skid mark and maybe some — a small piece of debris on the roadway there was no physical evidence that you normally look for, like maybe some centrifugal skid marks or maybe some other tire marks that may have shown some type of deviation of vehicles in the roadway. And from what I saw there was none of that in the roadway, other than a single tire mark that was leading up to where the cyclone post was.
Q. Typically in accident scenes or accident reconstruction, is there usually more debris or physical evidence, or the cars themselves are still in place when that scene is evaluated?
A. At times, yes.
Q. I mean not always, obviously, in cases of hit and run.
A. Correct.
Q. Have there been differing opinions, even among the officers in the Manteca Police Department, about how this accident occurred?
A. Yes, there have.
Q. Okay.
Okay. I have no further questions.
THE COURT: Mr. Marks.
FURTHER REDIRECT EXAMINATION BY
MR. MARKS: Q. As far as the skid marks are concerned, Sergeant, they were also on the south side of the street, is that correct?
A. Yes, they were leading up to the —
Q. I gather you were unable — unable to determine which vehicle, whether it was the Saturn or the pickup, that created those skid marks.
A. It would be my opinion that, based on Mr. Roblero's statement and his explanation of the collision with the cyclone fence, that the tire mark was most conceivably came from his vehicle.
Q. From the —
A. From the El Camino.
Q. And those also were on the south side of the street?
A. Yes, sir.
Q. Which would be the place closest to the eastbound lane?
A. Yes, sir.
Q. Would that indicate to you — you've had some — you've had experience over the years in investigating accidents, and I'm not going to ask you what was the cause of this. But you have had great deal of experience in that, am I correct?
A. Yes.
Q. Those skid marks would indicate that the Mr. Roblero's vehicle — strike that.
If Mr. Roblero's vehicle prior to the accident was traveling in a westerly direction, those skid marks would indicate that he was over on the east side of the street, or the south side of the street, is that correct? Or am I being confusing?
A. No. I mean it's obvious, based on those skid marks, that at some point his vehicle did go onto the eastbound lanes.
MR. MARKS: Thank you, sir. I have nothing further.
THE COURT: Mr. Hoyt.
MR. HOYT: No further questions, Your Honor.
THE COURT: Witness excused, gentlemen?
MR. HOYT: Yes.
MR. MARKS: Yes, Your Honor.
THE COURT: Mr. Marks, anything else?
MR. MARKS: Your Honor, I have one more witness, but he will not be available till the afternoon and he will be a short witness.
THE COURT: So you had scheduled this person for later today.
MR. MARKS: Yes, Your Honor. He come in — he came in from out of town.
THE COURT: All right.
And you had scheduled him for 1:30?
THE COURT: Now this violation has the gang enhancement, correct?
MR. HOYT: Yes.
THE COURT: Charges a separate instruction or, no?
MR. HOYT: Yes.
THE COURT: Did you give me —
MR. HOYT: It's like in the 17's. Yeah, I didn't include it.
MR. MARKS: You did or did not?
MR. HOYT: I don't see it.
MR. MARKS: It's not here in mine.
MR. HOYT: 17.24.2.
I think I left that one out.
THE COURT: Hold on.
MR. HOYT: Your Honor, before I forget, there is something we could put on the record.
I talked to Mr. Marks and there is a lesser included offense for attempted murder, which is attempted voluntary manslaughter. And it's my understanding that the defense is making a strategical decision to not ask for that lesser included.
MR. MARKS: That's correct, Your Honor, I'm not asking for it.
THE COURT: I have a copy of 17.24.2. Did you want to —
MR. HOYT: I'm showing Mr. Marks my CALJIC that has that instruction.
THE COURT: So it is alleged in Count 7 that the crime charged was committed for the benefit of —
MR. HOYT: Actually, following the 12022.1 enhancement, there's a 969 allegation, so the gang enhancement applies to Counts 1 through — 1 through 5.
THE COURT: So one, two, four, five, six and seven?
MR. HOYT: Actually, I would ask it not apply to Count 6.
THE COURT: So one, two, four, five, seven?
MR. HOYT: Yes.
THE COURT: So these criminal acts again that must be defined, they include automobile theft and burglary?
MR. HOYT: Yes.
THE COURT: Pattern of criminal gang activity means conviction of two or more?
MR. HOYT: Yes.
THE COURT: And strike all the rest?
MR. HOYT: Yes.
THE COURT: Is that automobile theft and burglary or burglary?
MR. HOYT: And.
MR. MARKS: And.
THE COURT: Okay.
Okay. Very good.
Okay. Let's return to this.
I think we covered all of the charged offenses and the enhancements by the district attorney, am I correct?
PROOF OF SERVICE BY MAIL (C.C.P. Sec. 101a #2015-5, 28 U.S.C. Sec. 1746)
I, RICKY GONZALES, am a resident of Pelican Bay State Prison, in the County of Del Norte, State of California. I am over the age of eighteen (18) years and am a party to the above-entitled action.My State Prison address is: Post Office Box 7500, Crescent City, California, 95531.
On the 25 day of OCT, 2007, I served the following (set forth the exact title of document(s) served):
PETITION UNDER 28 USC 2254 FOR WRIT OF HABEAS CORPUS BY A PRISONER IN STATE CUSTODY
on the party(s) herein by placing a true copy(s) thereof, enclosed in a sealed envelope(s), with postage thereon fully paid, in the United States mail, in a deposit box so provided at Pelican Bay State Prison, Crescent City, California, 95531, addressed as follows:
UNITED STATES DISTRICT COURT _________________________________ FOR THE EASTERN DISTRICT _________________________________ SACRAMENTO OFFICE 501 "I" STREET, SUITE 4200 _________________________________ SACRAMENTO, CA, 95814 _________________________________ There is delivery service by United States mail to the place so addressed and/or there is regular communication by mail between the place of mailing and the place so addressedI declare under penalty of perjury that the foregoing is true and correct.
Dated this 25 day of OCT, 2007.
_____________________________ Declarant/Prisoner signature