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People v. Lopez

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
No. B164596 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B164596.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LOPEZ, Defendant and Appellant.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.


Appellant Miguel Lopez was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187. The jury found true the allegations that appellant personally and intentionally discharged a firearm in the commission of the murder within the meaning of section 12022.53, subdivisions (b), (c), and (d). The jury also found true the allegation that appellant had suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "three strikes" law). The trial court sentenced appellant to a total term of 55 years to life in state prison.

All further statutory references are to the Penal Code unless otherwise stated.

Appellants term consisted of a 15 years to life sentence for the murder conviction, doubled to 30 years to life pursuant to the three strikes law, plus a consecutive enhancement term of 25 years to life for the firearm use.

Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to instruct the jury that the testimony of an accomplice should be viewed with caution. Respondent requests that we correct the abstract of judgment to show that the enhancement term for appellants section 12022.53, subdivision (d) enhancement is an indeterminate term of 25 years to life. We order the abstract corrected, as is set forth in more detail in our disposition, and affirm the judgment of conviction in all other respects.

Facts

On the night of December 21, 2001, Lazaro Montes, Eduardo Galvan and Marcos Calderon were drinking beer in an alley in South Los Angeles. Appellant, his brother Diego "Chato" Marquez and another man walked up to the group. Galvan recognized Marquez, who was a friend of Montes and who only had one eye. Marquez had had a quarrel with Montes a few days earlier. However, according to Montess sister, Montes had arranged to meet Marquez that night to drink beer. Appellant spoke briefly with Montes, then pulled out a gun and shot him in the head, killing him.

Sonia Calderon, Marcoss wife, saw appellant walking away from the scene. As he passed her, he said, "If you say anything, Im going to come back and kill you." Sonia recognized appellant as a former neighbor known as "Gadget." Sonia identified appellant from a photographic line-up and at trial.

Two weeks after the shooting, Marquez went to Galvans apartment. Galvan told police that Marquez told him not to tell the police what had happened. Galvan nevertheless spoke with police and selected appellant from a six-pack photographic line-up as the shooter. He also identified appellant at trial as the shooter. Galvan also identified Marquez as an accomplice.

Los Angeles Police Department Detective Mark Hahn interviewed Marquez about the murder. Marquez said that he met Montes on the night of the shooting to drink beer and that an unknown person came up to the group, took Montes aside and shot him. Several days after this initial interview, Hahn showed Marquez a six-pack photographic line-up. Marquez told Hahn that the shooter was either number three or number five. Marquez was aware that number three was appellant, his brother. When Hahn asked if Marquez was telling him that his brother was the shooter, Marquez replied that he did not want to talk about it anymore.

Marquez testified at trial under a grant of use immunity. He admitted having an argument with Montes a few days before the shooting and to being present at the time of the shooting. He denied that he had had plans to meet with Montes the evening of the murder, that he told police that appellant was the shooter or that he went to Galvans house to threaten him.

Appellants alibi defense was presented through his mother, who testified that appellant went to the emergency room on December 19 and 20 for stomach problems, then stayed at home with his mother until December 24.

Discussion

Appellant contends that the trial court erred in failing to instruct the jury that if it found that Marquez was an accomplice, it should view his testimony with caution. He claims that this error deprived him of his constitutional rights to due process and trial by jury. We do not agree.

Our Supreme Court has explained that the jury should be given the following instruction on the evaluation of accomplice testimony: "To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case." (People v. Guiuan (1998) 18 Cal.4th 558, 569; CALJIC No. 3.18.)

The trial court found that no accomplice instructions were necessary because "[t]here is really no evidence that Ive heard in the trial that would lead anybody to believe that [Marquez] was an accomplice."

While there is no direct evidence that Marquez was an accomplice, there is substantial circumstantial evidence that Marquez shared appellants intent, assisted him in the commission of the shooting and so was an accomplice. Marquez had a quarrel with Montes a few days before the shooting, and thus had a motive to cause harm to Montes. He arranged to meet Montes on the night of the shooting. When Marquez arrived for the meeting, he was accompanied by appellant and another man. Appellant immediately walked up to Montes, said something, pulled out a gun and shot Montes in the face. Thus, it would be reasonable to infer that Marquez brought appellant to the alley to seek revenge for the earlier quarrel.

In order for the jury to be instructed to view a witnesss testimony with caution, the defendant must prove that the witness is an accomplice by a preponderance of the evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 967-968.)

We find that any error in failing to instruct the jury to view Marquezs testimony with caution was harmless under any standard of review, however. Marquezs testimony contradicted almost all of his out-of-court statements to police, and so the jury was aware that Marquez was not being truthful about the shooting. Galvan positively identified appellant as the shooter. Galvan knew appellants brother who accompanied appellant into the alley. Sonia Calderon knew appellant and placed him at the scene of the shooting. Appellants alibi was the testimony of his mother that neither of them left the house between December 20 and 24, the week before Christmas. Thus, we see no reasonable probability or possibility that appellant would have received a more favorable verdict if the jury had been instructed to view Marquezs testimony with caution.

The jury was instructed that "[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others."

Disposition

The abstract of judgment is ordered corrected to show that appellants term for the section 12022.53, subdivision (d) enhancement is 25 years to life. The clerk of the superior court is directed to prepare an amended abstract of judgment showing this correction, and to deliver a copy of the amended abstract to the Department of Corrections. The judgment is affirmed in all other respects.

We concur: GRIGNON, Acting P.J., and MOSK, J.


Summaries of

People v. Lopez

Court of Appeals of California, Second District, Division Five.
Nov 6, 2003
No. B164596 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Lopez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LOPEZ, Defendant and…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 6, 2003

Citations

No. B164596 (Cal. Ct. App. Nov. 6, 2003)