Opinion
D039623.
11-17-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BUTLER FRENCH, Defendant and Appellant.
A jury convicted Joseph Butler French of second-degree murder (Pen. Code, § 187, subd. (a)) and found true allegations that French (1) personally used a firearm in the commission of the crime (§ 12022.5, subd.(a)(1)) and (2) personally discharged a firearm proximately causing death to a non-accomplice (§ 12022.53, subd. (d)). The court sentenced French to 40 years to life in a state penitentiary, consisting of 15 years to life for second-degree murder and a consecutive 25-years-to-life term for the personal discharge causing death enhancement. The court stayed the sentence for the personal use enhancement. French appeals, contending (1) the eyewitnesses testimony does not constitute substantial evidence to support the verdict; (2) the prosecutor committed misconduct; and (3) the court erred by admitting evidence of Frenchs ownership of three guns. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF FACTS
On June 3, 2001, French shot and killed Jose Flores-Cabrera, known as Chato, on the grounds of the Carlsbad Hiring Center (CHC). The CHC is housed in a trailer. Immediately south of the trailer is a covered patio, with chairs and tables. There are two portable toilets north of the trailer.
Just before sunset that day, Victor Ramirez, Celso Sanchez, Jose Suarez and Chato were sitting and talking on the CHC patio. French was sitting in his truck, which was parked across the street from CHC, south of the CHC patio. French exited his truck carrying three plastic gallon containers of urine and walked towards the portable toilets. Chato stood up and walked quickly towards French. Ramirez stood up to watch Chato. Sanchez, who was sitting at the front of the patio, also watched Chato and French.
Chato and French stopped when they were about three to four feet apart and began to argue. French leaned down and put the plastic containers on the ground. He then stood up, pulled out a gun, and shot Chato, who was leaning slightly forward. During the argument, Chato, who had nothing in his hands, did not move toward or lunge at French.
When Suarez heard the shot, he ran towards Chato and French. He and Ramirez saw Chato put his hands over the center of his chest, fall to one side, and lay down. Sanchez saw Chato put his right arm to his chest, take a few steps, and sit down, hunched over. Ramirez and Sanchez heard Chato scream, "Aye." Sanchez heard Chato say, "Help me."
After shooting Chato, French lowered his gun and begin to walk towards the others. At that point, Ramirez and Suarez ran away to La Posada de Guadalupe (La Posada), a nearby housing center for migrant workers. Sanchez stayed where he was. He and French looked at each other. French then turned and went back to the portable toilets. Sanchez went to La Posada to get help. When he arrived at La Posada, the police had already been called.
Chato died from internal bleeding caused by a gunshot wound to his chest. The bullet entered his chest at a 30-degree downward angle. Death was not instantaneous. Chato had no cuts or scrapes indicating a fight. He had a blood alcohol level of 0.27 and had methamphetamine in his urine but not in his blood.
French was in his truck when Carlsbad police officer Edward Burke arrived at the scene. French was handcuffed and placed in a police car. He was taken to the police station by officers George Lee Hart, Jr. and George Zavala. During the trip, French was agitated, saying that he did not understand why he was being taken to the police station because he admitted he shot the "dirty Mexican." He said the shooting was justified because Chato was coming at him. Moreover, Chato deserved to be shot because he was drunk or high on cocaine. He said numerous times that he wanted to speak with the watch commander and told Hart that if Hart did not let him speak with the watch commander, Hart would suffer the same fate as Chato.
After arriving at the police station, French told Zavala he couldnt believe he was there for shooting a "goddamn Mexican." French told detective Derek Harvey more than once that (1) Chato angered him by walking towards him, so he shot Chato and (2) the police did not need to take physical evidence from him because he said he shot Chato. French also said he would shoot rather than be assaulted. When police wanted to photograph French in the nude to show he had not suffered any injuries, French was made statements like, "Why do I have to do this shit? I shot the motherfucker."
Officer J. Eppel searched Frenchs vehicle and found a .22-caliber semi-automatic Walther handgun, which the parties stipulated was the gun that fired the bullet found in Chato and which had fired the expended cartridge found at the scene. The Walther was wrapped in a plastic bag inside a closed case. Eppel also found two other .22-caliber handguns in cases, as well as a backpack full of different types of bullets.
French testified in his own defense. About 6:30 p.m. the night of the incident, Chato approached while French was sitting in his truck. Chato asked French what he was doing there; French told him he did not owe him an explanation. Chato rested his arm on the windowsill, placed his head on his arm, and looked around the truck. Chato asked French whether he had seen certain people who Chato named and described. French, who suspected Chato was either drunk or on drugs, asked Chato to leave. Chato did not respond to Frenchs requests until French told him he was trying to paint the truck. At that point, Chato walked towards a van, peered in and then joined the men on the CHC patio. French thought the men on the patio were drinking or using drugs because he heard periodic, loud outbursts.
About 8:00 p.m., French decided to take three containers of urine and empty them in one of the portable toilets. He took a loaded, Walther .22-caliber pistol out of its case and put it in his pants pocket or his jacket pocket because he thought the men on the patio might cause trouble. As he walked towards the portable toilets, French heard someone in the patio area yell, "Hey." When the person yelled "Hey" again in a loud and angry manner, French said, "Leave me alone." As he continued to walk, French heard footsteps in the gravel, turned to look, and saw someone, who he then recognized as Chato, approach him. He told Chato not to approach. When Chato kept walking towards him, French held out his hand and said, "Vamanos," but Chato did not stop.
When Chato was about two to four feet from French, he took his hands from his pockets, lunged at French and swatted towards Frenchs midsection. After staggering a little, Chato "re-cocked" his arms to swat at French again. At that point, French put the urine containers on the ground, yelled again, and held his hand out. He held the gun in his other hand at waist level. When Chato did not retreat, French shot him. Chato slowed down, stopped, and then collapsed face down on the ground. French then saw a two and one-half inch pocketknife blade in Chatos left hand.
French walked towards the men on the patio, holding his gun in the air, to ensure they would not attack him. After two of the witnesses ran away and French realized Sanchez did not pose a threat, French picked up the urine containers and emptied them in one of the portable toilets. As French walked back to the patio, Sanchez asked if he could go. French told him he could do anything he wanted as long as he did not approach French. Sanchez then walked to Chato, shook him, and left. French returned to his truck, put the containers away and put the gun back in its case. He moved his truck north, but remained in the immediate area.
A few minutes after French moved his truck, a white Mercedes Benz pulled up in front of the hiring center. Three men exited the car, walked towards Chato and "handle[d]" Chatos body. After seeing one of the men draw a handgun, French loaded one of the other handguns in the truck. The men then drove away and a red car pulled up. Four men got out of the red car and sat on the patio. Another man parked a van across the street and walked three or four small dogs on CHC grounds. Murillo Mago, who French recognized, appeared on the scene and walked towards Chatos body. When the police arrived, only Mago was still there.
French denied saying, "I shot the Mexican." He also denied referring to Chato as a "dirty Mexican" or "goddamn Mexican."
On rebuttal, Eppel testified that when he spoke with French in the police car, French did not mention that Chato had a knife.
DISCUSSION
I. Standard of Review
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
II. Eyewitnesses Testimony
French contends the eyewitnesses testimony does not constitute substantial evidence upon which to base his conviction because (1) the eyewitnesses could not have seen the shooting from where they were seated; (2) the physical evidence is inconsistent with the eyewitnesses testimony; and (3) the eyewitnesses were biased. Two of these contentions are based upon a diagram of the scene prepared by the police. Each of the eyewitnesses marked a copy of the diagram to show their location, the location of the confrontation, and the paths taken by Chato and French. The three diagrams, which were generally consistent with each other, placed the confrontation west of the location where police found Chatos body and the shell casing.
We do not agree that the diagrams conclusively show the eyewitnesses could not have seen the confrontation from their positions on the patio. We first note that the eyewitnesses are not skilled in diagram drawing. Even French, when asked to point out where the shooting took place, testified he was estimating the location and could be off by a considerable amount. For that reason, we view the eyewitnesses markings on the diagrams as estimates and not as exact locations.
Secondly, the diagrams of Ramirez and Sanchez do not conclusively show that the trailer blocked their view of the confrontation. Ramirezs diagram places him at the front of the patio right next to the stairs leading into the trailer. Ramirez testified he stood up to watch Chato, which implies Ramirez made sure he could see Chatos movements up to and including the confrontation with French. Sanchez was also sitting in the front of the patio farther away from the trailer, in a position where the trailer did not block much of his view. If, as French implores us to do, we take a ruler and draw a straight line from where Sanchez was sitting to the place where Sanchez placed the confrontation, Sanchez could see French and may have been able to see Chato. We reject Frenchs contention that Sanchez and Ramirez could not have seen the confrontation because Suarez, who was also sitting on the patio, testified he did not see the confrontation. Unlike Sanchez and Ramirez who sat in the front of the patio, Suarez sat in the back of the patio where the trailer completely blocked his view.
Sanchezs diagraph placed Ramirez in front of two adjacent chairs in the same location. Suarezs diagram placed Ramirez nearer the back of the patio, where the trailer would have blocked his view.
Sanchezs diagram and Ramirezs diagram show Sanchez sitting in the same spot. Suarezs diagram does not identify where Sanchez sat.
French also contends no reasonable juror could have believed the eyewitnesses testimony because it was inconsistent with the physical evidence in that Chatos body and the bullet casing were found east of the spot where the eyewitnesses placed the confrontation. However, Ramirez testified that Chato fell to one side. Sanchez testified that Chato took a few steps before he fell. This testimony provides substantial evidence Chato did not fall in the spot where the shooting took place. Further, French testified that a number of people approached and touched the body before the police arrived. Based upon Frenchs testimony, a reasonable juror could find Chatos body and the shell casing were moved from their original locations.
French also contends the physical evidence supports his self-defense theory that Chato was lunging at him at the time he fired the shot. French relies upon the following facts: (1) the bullet entered Chatos chest and traveled at a 30-degree downward angle; and (2) French is only one-half inch taller than Chato. However, a reasonable juror could believe Sanchezs testimony that Chato was leaning forward but not lunging at French, which would place Chato in a position that conforms to the physical evidence.
French also contends the eyewitnesses supposed bias prevented their testimony from constituting substantial evidence. This bias consisted of the district attorneys (1) arranging to have the eyewitnesses, who were in the country illegally, paroled by the Immigration and Naturalization Service (INS) to insure they would not be deported prior to trial and (2) housing the eyewitnesses in an hotel, feeding them and giving them $12 a day for each day they testified. To show that such treatment could produce bias, French relies upon cases that hold that a defendant has the right to discover and present evidence of witnesses bias. (People v. Mickle (1991) 54 Cal.3d 140, 168-169 [not allowing cross-examination of prosecution witness as to alleged threats against witnesses and not admitting letters showing bias of prosecution witnesses was harmless error]; People v. Rodriguez (1986) 42 Cal.3d 730, 751 [unduly restricting defense counsels ability to cross-examine prosecution witness as to a deal made in exchange for testimony was harmless error]; People v. Coyer (1983) 142 Cal.App.3d 839, 842-843 [defense entitled to discover criminal charges pending against prosecution witnesses].) Unlike the cases upon which French relies, the court in this case allowed Frenchs counsel to discover and to fully cross-examine the eyewitnesses, the police and the district attorney investigator as to these arrangements. For that reason, the jurors were fully informed as to the possible bias and could evaluate it in their role as fact finders.
III. Prosecutorial Misconduct
French contends the prosecutor committed misconduct by painting French as a "loathsome genocidal bigot," based on evidence that French referred to Chato as "a goddamn Mexican," "a dirty Mexican," or "the Mexican." In order to appeal prosecutorial misconduct, the defendant must timely object to the misconduct in the trial court. (People v. Clair (1992) 2 Cal.4th 629, 682.) French failed to object at trial and, therefore, waived this contention.
IV. Evidence of Three Handguns
French contends the court erred by admitting evidence that French owned three handguns because the evidence was inflammatory. We review for abuse of discretion the courts admission of evidence, as well as its determination that evidence is more probative than prejudicial. (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.) "[T]he term judicial discretion implies absence of arbitrary determination, capricious disposition or whimsical thinking. [Citation.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)
We first reject Frenchs contention that the court found evidence of the two other handguns not to be prejudicial "because the prosecutor had introduced so many more prejudicial matters." In making this contention, French seriously misstates the record, which shows the court decided to admit the evidence after the prosecutor showed it to be relevant. Prior to trial, the court found the prosecutors offer of proof deficient in that the court did not find the fact that French had to decide which of the three guns to use to be evidence of premeditation. Later in the trial, the prosecutor showed the court the three guns and argued that because the gun used to shoot Chato was significantly smaller than the other two, it was easier to conceal. The court then ruled the evidence admissible, finding the guns small size to be relevant and finding only minimal prejudice. The court correctly found that Frenchs ability to conceal a small weapon relevant to the issue of premeditation. In view of the totality of the evidence — especially Frenchs admission that he shot Chato — it is difficult to believe French was prejudiced by the testimony that he possessed three handguns. For these reasons, the court did not abuse its discretion by admitting the evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., and McINTYRE, J.