Filed 4/28/16 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
JORGE GONZALEZ et al.,
Defendants and Appellants.
(Los Angeles County
Super. Ct. No. YA076269)
ORDER MODIFYING OPINION
AND DENYING PETITIONS FOR
[NO CHANGE IN JUDGMENT]
It is ordered that the published opinion filed March 30, 2016, be modified as follows:
1. On page 5, the ninth sentence in the first full paragraph beginning with “Kalac did not want to give . . . .” is deleted. The remainder of the paragraph is deleted and the following two sentences are inserted in its place as follows:
He gave Estrada $30, but did so unwillingly. He did not intend to assist or facilitate the robbery.
2. On page 9, the first two sentences under section 4 beginning with “Inglewood Police Officer Fernando Vasquez . . . .” are deleted. The following sentence is inserted in their place as follows:
Inglewood Police Officer Fernando Vasquez responded to a 2:36 p.m. 911 call, arriving with his partner at Rosales’s house at 2:40 pm.
3. On page 10, the third sentence in the first paragraph, beginning with “Ahir also provided . . . .” is deleted. The following sentence is inserted in its place:
Ahir also provided police with video surveillance footage for October 6.
4. On page 10, the fifth sentence in the first paragraph, beginning with “At 2:17 p.m., the video . . . .” is deleted. The following is inserted in its place:
At 2:17 p.m., the video shows multiple individuals entering a black Cadillac and at 2:21 p.m., it shows them driving away from the hotel. Inglewood Police Detective Kevin Lane, who conducted two test drives, testified it took between three minutes, 44 seconds and five minutes, five seconds to drive from the Crystal Inn to the American Inn, due to traffic and signal lights.
5. On page 10, after the second sentence beginning with “The registration form . . . .” in the second paragraph, the following sentence is added:
Based on his test drive, Detective Lane testified it took approximately 30 seconds to drive from the American Inn to the laundromat, or two to three minutes to walk to the location.
6. On page 11, after the fifth sentence beginning with “When asked if she had used . . . .” in the first full paragraph, the following sentence is inserted:
In another call with Davalos, Estrada stated that Ruiz had misdescribed her clothing, as she had been wearing pajamas.
7. On page 14, the heading for section A is deleted and the following heading is inserted:
The Trial Court did not Err in Admitting Ruiz’s Out-Of-Court Statements.
8. On page 16, the second sentence beginning with “Ruiz was shot between ….” in the first full paragraph is deleted and the following sentence and footnote number 2 inserted in its place:
Rosales was shot between 2:28 p.m. -- the last time his cell phone was used -- and 2:36 p.m. -- the time of the 911 call.[insert footnote 2]
[Footnote 2] Estrada contends that Rosales might have been killed earlier, arguing that Ruiz could have used Rosales’s cell phone to call Jennifer’s cell phone after Rosales was killed. No evidence supports this contention.
9. On page 16, the third sentence beginning with “Officer Vasquez . . . .” in the first full paragraph is deleted and the following sentence is inserted in its place:
Officer Vasquez arrived at Rosales’s house four minutes later, and promptly spoke with Ruiz.
10. On page 30, the entire section F is deleted and the following section F is inserted in its place:
The jury was instructed that in order to return true findings on the robbery special circumstance allegation for a defendant who was not the actual killer, the prosecution was required to prove: (1) that the defendant’s participation in the crime began before or during the killing; (2) that the defendant was a major participant in the crime; and (3) that when the defendant participated in the crime, he or she acted with reckless indifference to human life. The jury returned true findings on the special circumstance as to all appellants.
Appellants Estrada and Garcia contend there was insufficient evidence to support the jury’s true findings on the robbery special circumstance. On this issue, we draw guidance from Banks, supra, 61 Cal.4th 788.5 Banks involved a defendant, Matthews, who was found guilty of first degree murder under a felony-murder theory, based on evidence that he was the getaway driver following an armed robbery. (Id. at p. 794.) As Matthews was not the actual killer, the court addressed whether he was liable for life imprisonment without the possibility of parole under section 190.2, subdivision (d). The section provides: “[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.” (§ 190.2, subd. (d).) “The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.” (Banks, supra, 61 Cal.4th at p. 798, fn. omitted.) These two requirements -- being a major participant and having a reckless disregard for human life -- will often overlap. (Tison v. Arizona (1987) 481 U.S. 137, 158 & fn. 12.)6
After stating that “Matthews’s culpability for first degree felony murder is not in dispute” (Banks, supra, 61 Cal.4th at p. 794), the court set forth nonexclusive factors relevant to determining whether an accomplice was statutorily eligible for life imprisonment without the possibility of parole under section 190.2, subdivision (d). These factors include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, at p. 803, fn. omitted.) The court reiterated that “[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.)
Applying those factors to the case, the court found that while there was substantial evidence Matthews acted as the getaway driver, “[n]o evidence was introduced establishing Matthews’s role, if any, in planning the robbery. No evidence was introduced establishing Matthews’s role, if any, in procuring weapons.” (Banks, supra, 61 Cal.4th at p. 805, fn. omitted.) “During the robbery and murder, Matthews was absent from the scene, sitting in a car and waiting. There was no evidence he saw or heard the shooting, that he could have seen or heard the shooting, or that he had any immediate role in instigating it or could have prevented it.” (Ibid.) The court concluded that on this record, “Matthews was, in short, no more than a getaway driver” and “cannot qualify as a major participant under section 190.2(d).” (Id. at pp. 805 & 807.) As to mens rea, the court noted that although there was evidence Matthews knew he was participating in an armed robbery, nothing suggested he knew his actions would involve a grave risk of death. “Because nothing in the record reflects that Matthews knew there would be a likelihood of resistance and the need to meet that resistance with lethal force,” the evidence failed to show Matthews acted with reckless indifference to human life. (Id. at pp. 807, 811.)
We also find instructive cases involving accomplices who were not mere getaway drivers. In People v. Smith (2005) 135 Cal.App.4th 914, three men (Smith, Taffolla, & Felix) planned to rob a woman. After going to the victim’s hotel room, Taffolla stayed outside to act as a lookout, while Smith went inside and Felix left to prepare the getaway vehicle. An altercation occurred in the room, during which the victim was stabbed multiple times, beaten in the face with a steam iron, and slammed into the wall. After Smith exited the room covered in blood, he and Taffolla ran to a nearby street, where Felix picked them up. (Id. at pp. 919-920 & 927.) The appellate court held the evidence supported the jury’s finding that Taffolla was a major participant, as he was one of only three perpetrators and served as the only lookout to a “violent attempted robbery-turned-murder.” (Id. at p. 928.) The court concluded the evidence also supported the finding that Taffolla acted with reckless indifference to human life, as he would have heard the victim being assaulted, and after seeing Smith leave the room covered in blood, he chose to flee with the assailant rather than come to the victim’s aid or summon help. (Id. at pp. 927-928.)
In People v. Lopez (2011) 198 Cal.App.4th 1106 (Lopez), overruled in part by Banks, supra, 61 Cal.4th at page 809, footnote 8, appellant Brousseau, a prostitute, along with several codefendants, planned to rob (“com[e] up on”) some of her prospective customers. (Lopez, at pp. 1110 & 1112.) During the encounter, the victim was shot and killed by codefendant Lopez. Brousseau did not challenge the jury’s finding that she was a major participant, but argued there was insufficient evidence to prove she acted with reckless indifference to human life. The appellate court disagreed. It found that “Brousseau’s act of luring the victim into the secluded alley was critical to the robbery’s success. After hearing what she knew was a gunshot, she failed to help the victim or call 911.” Instead, she spent the night with her codefendants and had sex with Lopez. The appellate court found Brousseau’s actions reflected an “utter indifference to the victim’s life.” (Id. at p. 1117.)7
Following Banks, in People v. Medina (2016) 245 Cal.App.4th 778, the appellate court found there was sufficient evidence to show an accomplice (Whitehead) who acted as armed backup for a robbery was a major participant and acted with reckless indifference to human life. Although Whitehead was not involved in planning the robbery, when he learned of the plan, he asked to go and participated fully. Whitehead left before the victim was shot, in order to drive the shooter’s girlfriend away from the scene. When he heard the shooting, he returned to aid the shooter while making no effort to determine if anyone was injured or to offer aid. (Id. at pp. 792-793.)
Here, there was substantial evidence that Estrada and Garcia were major participants and acted with reckless indifference to human life. (See Banks, supra, 61 Cal.4th at p. 804 [in reviewing sufficiency of evidence supporting special circumstance allegation, appellate court considers the record in light most favorable to the judgment].) Estrada was identified as the person who first proposed robbing Rosales. When she did so, she informed Gonzalez and Garcia that Rosales was a drug dealer who had been physically violent in the past. Thus, unlike in Banks, there was a substantial probability the robbery would result in resistance and the need to meet that resistance with deadly force. Estrada then set up the robbery by calling Rosales and asking him to meet her at the laundromat. Her act of luring Rosales to the laundromat was “critical to the robbery’s success.” (Lopez, supra, 198 Cal.App.4th at p. 1117.) Estrada also was identified as being at the scene, and pointing Rosales out to the shooter.8 After a shot was fired, she neither called 911 to assist the victim, nor called the police to report the shooting.9 Rather, like Brousseau in Lopez, Estrada spent the afternoon with the shooter. She took Gonzalez to her home to introduce him to her son, and was arrested with him later that evening. On this record, there was sufficient evidence for the jury to find that Estrada was a major participant and acted with reckless indifference to human life.
Likewise, Garcia was present when Estrada proposed robbing Rosales and described his violent nature. There was evidence he participated in the planning of the robbery with Estrada and Gonzalez and volunteered to assist as a lookout. His phone records showed calls to Rosales shortly before the murder. Garcia was present at the scene, “in a position to facilitate or prevent the actual murder.” (Banks, supra, 61 Cal.4th at p. 803.) He made no attempt to prevent the shooting or to notify authorities after Rosales was shot. Like Taffolla in Smith, Garcia chose to flee with the shooter, rather than come to Rosales’s aid or summon help. He also accompanied Gonzalez when he disposed of the murder weapon. On this record, we find sufficient evidence to support the jury’s findings that Garcia was a major participant and acted with reckless indifference to human life.
The petitions for rehearing is denied. The modification does not change the judgment.
*EPSTEIN, P. J. WILLHITE, J. MANELLA, J.
Filed 3/30/16 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
JORGE GONZALEZ et al.,
Defendants and Appellants.
(Los Angeles County
Super. Ct. No. YA076269)
APPEAL from judgments of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Affirmed with directions.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Gonzalez.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Erica Michelle Estrada.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant Alfonso Garcia.
Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Jorge Gonzalez, Erica Michelle Estrada, and Alfonso Garcia appeal from judgments and sentences following their convictions for the murder of Victor Rosales under a felony-murder theory. Appellants challenge the trial court’s evidentiary rulings, its jury instructions and their sentences. They contend the trial court erred in admitting the statements of an unavailable percipient witness under the spontaneous statement exception to the hearsay rule. They also contend the court erred in instructing the jury to determine whether a prosecution witness was an accomplice, and argue that the purported accomplice’s testimony was not sufficiently corroborated. Appellants further argue that because the information charged them with malice murder, they were entitled to instructions on malice murder, its lesser included offenses and the defenses of accident and self-defense. Estrada and Garcia contend they were improperly sentenced to life imprisonment without the possibility of parole because the jury’s true findings on the robbery special circumstance enhancement were not supported by sufficient evidence. Finally, they contend the abstracts of judgment improperly reflect imposition of a parole revocation restitution fine.
With the exception of the claim regarding the parole revocation fines, we reject appellants’ contentions. The record supports the trial court’s admission of the percipient witness’s remarks as spontaneous statements, as they were made shortly after the shooting of Rosales, while the witness was under the influence of that startling event, and were not testimonial. As to the alleged accomplice, we conclude that he was not an accomplice as a matter of law, and that the trial court properly instructed the jury to determine the issue. Moreover, any error was harmless, as the alleged accomplice’s testimony was sufficiently corroborated.
With respect to the trial court’s failure to instruct, sua sponte, on malice murder, its lesser included offenses and defenses, we conclude that in light of the jury’s guilty verdicts on felony murder and its true findings on the robbery special circumstance allegations, any error was harmless. To the extent People v. Campbell (2015) 233 Cal.App.4th 148 (Campbell) suggests a different analysis, we respectfully disagree. Finally, we conclude that under People v. Banks (2015) 61 Cal.4th 788 (Banks), there was sufficient evidence to support the jury’s true findings as to all appellants on the robbery special circumstance allegation. Thus, appellants were statutorily eligible to be sentenced to life imprisonment without the possibility of parole. Accordingly, we affirm the convictions and modify the abstracts of judgment to delete the parole revocation fines. As amended, the judgments are affirmed.
Appellants were charged in a second amended information with the malice murder of Rosales (Pen. Code, §187, subd. (a); count 1).10 As to all appellants, it was alleged that a principal was armed with a firearm (§ 122022, subd. (a)(1)), and that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)). Gonzalez was also charged with shooting at an occupied vehicle. (§ 246; count 2.) As to both counts, it was alleged that Gonzalez personally and intentionally discharged a firearm which caused great bodily injury and death to Rosales (§ 12022.53, subds. (b), (c) & (d)).
A jury found appellants guilty on count 1, found true the robbery special-circumstance allegation, and found not true the firearm allegations. The jury acquitted Gonzalez of count 2. The trial court sentenced each appellant to life imprisonment without the possibility of parole.
Appellants filed timely notices of appeal.
A. The Prosecution Case
1. Anthony Stephen Kalac’s Testimony
After asserting his Fifth Amendment right against self-incrimination at trial, Anthony Stephen Kalac was granted use immunity.11 He testified that on October 6, 2009, he went to Garcia’s house to get high. He had known Garcia for several years. At the house, Garcia introduced Kalac to his girlfriend, Jennifer. Kalac, who already had taken 10 “hits” of heroin, began smoking several more.
Garcia announced they were going to a hotel down the street to celebrate “somebody’s girlfriend’s birthday.” Kalac left his heroin stash at Garcia’s house. Garcia, Kalac and Jennifer then walked to the Crystal Inn, which was nearby on Prairie and 112th Street.
At the Crystal Inn, Garcia knocked on a door of a second floor room. Gonzalez opened the door. Garcia introduced Kalac to Gonzalez and to the other occupant -- Gonzalez’s girlfriend, Estrada. Kalac entered and sat on a couch while the other occupants began speaking among themselves. Garcia told Gonzalez, “Let’s pack a bolt,” which referred to putting methamphetamine into a pipe to smoke. Gonzalez replied that there were no drugs in the room. Garcia, Gonzalez, and Estrada then discussed where they could obtain drugs. Kalac left the hotel to meet his heroin dealer at a nearby location. When the dealer did not show up, Kalac returned to the hotel room. Garcia, Gonzalez, Estrada and Jennifer were still present.
Estrada told Garcia and Gonzalez that she had someone they could “come up on.” Kalac understood “come up on” to mean “rob.” Estrada said the proposed robbery victim was a drug dealer. She also mentioned he was an ex-boyfriend who had been “physical” with her. At this point, Gonzalez became “agitated.” Estrada, Garcia, and Gonzalez began talking about robbing the person Estrada had mentioned. Because no one in the room had money, Erica asked Kalac for money to pay for a room at a hotel next door. She stated she would give Kalac heroin from the robbery in return for the money. Kalac did not want to give Estrada the money because he already had heroin stashed at Garcia’s house. He gave Estrada $30, but did so unwillingly. He also denied intending to assist or facilitate the robbery.
Estrada then told everyone to be quiet so she could call the drug dealer. She told the dealer to meet at the laundromat across the street in 30 minutes. After the conversation, Garcia and Gonzalez left for the laundromat. Garcia said he would act as a lookout. Kalac never saw a gun or heard guns discussed.
Estrada called the drug dealer again to find out when he would arrive at the laundromat. After this call, Estrada began packing to move out of the hotel. Kalac and Jennifer helped Estrada load the bags into her car, a black Cadillac. They drove to the American Inn, just south of the Crystal Inn. Responding to a phone call, Estrada said she would “be there in two minutes,” and left shortly thereafter with Jennifer, leaving Kalac in the hotel room.
After several minutes, Kalac decided to go home. He was walking south on Prairie Street when he saw Garcia and Gonzalez on the other side of the street. Garcia crossed the street and told Kalac that “shit went bad.” Kalac and Garcia then walked to the American Inn. Garcia changed his clothes, and the two men walked to Garcia’s house, where Kalac retrieved his heroin and left for home. He denied seeing or handling the gun used to shoot Rosales. In February or March 2010, Kalac encountered Jennifer. She told him the drug dealer had died.
2. Other Evidence Concerning Kalac
Inglewood Police Officer Michael Han testified that on February 1, 2010, an informant who requested anonymity came to the police station, stating she had information about a murder. Officer Han spoke with the informant and later sent out a group e-mail to all homicide detectives. The email stated: “‘For your information, on Monday, February 1, 2010, I met with an anonymous informant at the IPD Lobby. The informant said he/she heard the following story from a male white subject by the name of Anthony Kalac. The informant relayed that recently he/she heard Anthony Kalac talk about a robbery to a drug dealer. Anthony Kalac said a male subject by the name of “Ralph” or “Alf” was the mastermind in the robbery. On or about October, 2009, “Ralph,” Anthony Kalac, and two other subjects (one male and one female) executed the robbery. Anthony Kalac said “Ralph” shot and killed the drug dealer, who was in the car, in the area of 113th Street and Prairie Avenue. After the murder “Ralph” gave the gun to Anthony Kalac to get rid of it.’”
The informant was later identified as Stefanie San Angelo. She testified she was dating Kalac in 2009. A few days before she talked with Detective Han, she had received information that Kalac might have been involved in a shooting. She could not recall whom she heard it from. She provided that information to the detective. After talking with the police, she spoke with Kalac. Kalac said he had gone to buy some drugs with “Alf and there was another guy and female there. They intended to jack somebody. It was either the girl’s boyfriend, ex-boyfriend. . . . They contacted him. He came out. They went down to meet with him. [Kalac] stayed in the room. . . . He [the victim] wasn’t giving it up. He either tried to run away or drive away. They shot at him, hit him, and that was it.” San Angelo was not sure how Kalac learned of the shooting. She had asked him, “Did you walk past a dead body and not say anything?” Kalac had responded, “Yeah, I didn’t care about it. I cared about my dope.” San Angelo also identified Garcia as “Alf.”
3. Testimony of the Victim’s Family Members
Liliana Rosales, the victim’s sister, testified that in October 2009, she was living in a house with her brother, sister, and mother. Liliana testified that her brother had been in a relationship with Estrada. On October 6, 2009, her brother told her he was going out, but would be “right back.” Shortly thereafter, Liliana was walking out to her car when another vehicle pulled up to the house. Alejandro Ruiz was driving the vehicle. He got out, looking nervous, and told Lilliana in a “broken” voice that her brother had been shot. Liliana ran to the passenger side of the vehicle and saw her brother. He was not moving and looked asleep. She asked Ruiz “who had done that” to her brother. Ruiz said, “Erica, Erica.” Some neighbors came over, and Liliana told them to call 911. She ran inside the house and got her mother. The neighbors, her mother, and Liliana pulled Rosales from the vehicle. Liliana noticed a bullet wound in Rosales’s stomach. Her mother performed CPR on Rosales until the ambulance arrived. Rosales was taken to the hospital where he was pronounced dead.
Maria Murillo, the victim’s mother, testified that on October 6, 2009, at around 2:10 p.m., she was coming home when she saw her son in their driveway. Rosales told her he was going to eat lunch with a friend. Murillo entered the house and began cooking. About 10 minutes later, her daughter Liliana entered and told her Rosales had been hurt. Murillo ran outside, and saw Rosales in the passenger side of a car. She also observed Rosales’s friend, Alejandro Ruiz, looking “frightened” and “in despair.” Ruiz was running around, saying, “the girlfriend, the girlfriend” in Spanish. Some neighbors then helped her pull Rosales out of the vehicle. She performed CPR until the ambulance arrived. Murillo was later interviewed, and told the detective that Rosales had said that Estrada would call him for drugs.
Mayra Gomez, the victim’s other sister, testified that she was very close to her brother. About three to four months before he died, she observed her brother with Estrada on multiple occasions, both at their house and at Estrada’s house. Rosales told Gomez that “he was fooling around with [Estrada], but it was nothing serious.” Gomez also stated that Rosales was “fooling around” with other people during that time. On October 6, at around 2:00 p.m., Rosales told Gomez he had to go “do something real quick and then I’m going to come back.” About an hour later, Gomez heard Liliana run into the house screaming Rosales’s name. Gomez ran outside and saw Ruiz standing next to a white vehicle. He looked scared and frightened, and he was stuttering. Gomez ran to the passenger side of the vehicle and saw her brother: his eyes were rolled back and there was a bloodstain on his stomach. Gomez heard Ruiz say, “It was Erica” in Spanish. When the police arrived, a detective asked Gomez if she knew “Erica.” Gomez said she did, and guided police officers to Estrada’s house. Gomez testified that her brother used crystal methamphetamine, and that she suspected he was a drug dealer.
4. Testimony of Officer Fernando Vasquez
Inglewood Police Officer Fernando Vasquez responded to the 911 call. He and his partner arrived at Rosales’s house at 2:40 p.m. Vasquez saw that Rosales had a single gunshot wound to his chest. When paramedics arrived and took over treatment, Vasquez noticed Ruiz, who appeared to be in shock and looked afraid. Ruiz was pacing back and forth, his eyes were wide open, and he spoke very rapidly in broken sentences with a high-pitched voice. The officer did not believe Ruiz was under the influence of any drug.
When asked about the shooting, Ruiz stated he had received a call from Rosales around 1:00 p.m., asking Ruiz for a ride. Ruiz picked up Rosales at approximately 2:16 p.m. While in the car, Rosales told Ruiz he had received a call from his girlfriend, Erica. Erica wanted to meet Rosales for lunch, and had asked him to meet her at a laundromat on Prairie and 112th Street. When Ruiz and Rosales arrived at the laundromat, Ruiz parked his vehicle at the curb. As he was parking, another vehicle arrived and parked in front of him. While parking, this vehicle lightly collided with Ruiz’s vehicle. Ruiz was shocked by the accident. He recognized Erica, accompanied by two male Hispanics, walking out from behind two palm trees. Erica pointed at Rosales, and one of the males walked up to the passenger side door, produced a small handgun, and fired a single shot at Rosales. The shooter then walked around the car to the driver’s side, and attempted to pull Ruiz out of the vehicle. Ruiz, fearing for his life, hit the accelerator and drove away from the scene.
At around 7:14 that evening, Officer Vasquez participated in the detention and arrest of Estrada and Gonzalez, who were together in a black Cadillac outside Estrada’s house. Neither Estrada nor Gonzalez showed signs of injuries.
5. Additional Evidence
Ramesh Ahir, the hotel manager at the Crystal Inn, testified that based on hotel records, Estrada registered for room 232 on October 5, 2009. She checked out the following day. Ahir also provided police with video surveillance footage. The video shows that at 2:06 p.m., an adult male walked past the camera towards Prairie, followed a minute later by another male. At 2:17 p.m., the video shows multiple individuals entering a black Cadillac and driving away.
Estrada then registered at the American Inn. The registration form showed $51 of the $58 room charge was paid.
Vadims Poukens, a medical examiner, testified he performed the autopsy on Rosales. A .22-caliber bullet was recovered from his body. Poukens opined that Rosales died from a gunshot wound to the chest. According to Poukens, when a gun is discharged, particles coming off the muzzle may strike the skin and leave small marks, called “stippling.” A person would have to be close to the discharging firearm -- around 2 feet -- to show stippling. Poukens observed stippling on Rosales’s right hand, in the wrist area. He observed no other signs of injuries, such as defensive wounds to the hands.
The white vehicle Ruiz had driven was impounded. A .22-caliber cartridge case was found in the vehicle. Rosales’s cellular phone was recovered between the center console and passenger side seat.
Phone records showed numerous calls between and among appellants and Rosales on October 6, 2009. At 2:12 p.m., a call was made from Garcia’s cell phone to Rosales’s phone. At 2:19 p.m. and 2:21 p.m., calls were made from Jennifer’s cell phone to Garcia’s phone. At 2:23 p.m., a call was made from Rosales’s phone to Garcia’s phone. At 2:23 p.m. and 2:26 p.m., two more calls were made from Jennifer’s phone to Garcia’s phone. At 2:27 p.m., a call was made from Garcia’s phone to Rosales’s phone. At 2:27 p.m. and 2:28 p.m., two more calls were made from Garcia’s phone to Jennifer’s phone. Finally, at 2:28 p.m., a call was made from Rosales’s phone to Jennifer’s phone. During this period, Garcia’s phone was using cell towers located within one mile of the Crystal Inn.
When Estrada and Gonzalez were arrested, no weapons were found on them. During Gonzalez’s booking, he had 25 cents on his person. While Estrada was in jail, she made eight calls to her aunt, Maria Davalos. During one of the recorded conversations, Estrada asked her aunt to get in touch with Jennifer, saying “[Jennifer] must have the cell phone, right[?]” When asked if she had used Jennifer’s cell phone to call Rosales, she said, “Yeah, I did but I called private though.”
Wayne Moorehead testified he performed gunshot residue tests on swabs taken from Estrada’s and Gonzalez’s hands. Gunshot residue was present in Gonzales’s samples, but not in Estrada’s.
Garcia was arrested on December 17, 2009. When police officers tried to serve the arrest warrant, Garcia attempted to run away, but was apprehended.
B. The Defense Case
Daren Blount, a private investigator working for Gonzalez’s defense, testified he interviewed Liliana Rosales. Liliana told him her brother sold drugs. Liliana also stated her brother had sold drugs to Estrada at a discount, and had even given drugs to Estrada for free.
Gonzalez testified that in 2009, he was living off approximately $46,000 in savings and money earned from a part-time job assisting a paralyzed person named Ernesto Corral. A few days before the incident, Corral had paid him $200. On October 6, 2009, Gonzalez had approximately $165 on his person.
Gonzalez testified that on October 5, 2009, Estrada had surprised him with a birthday party at the Crystal Inn. Jennifer also was present at the party. Gonzales testified he had met Estrada through Jennifer. He had known her for about a month and a half before the incident. Gonzalez stated that although they were intimate, they were never romantic or serious, and he did not consider her his girlfriend. He also knew she was dating Rosales. Gonzalez had met Rosales on two prior occasions. On both occasions, he purchased drugs from Rosales, using Estrada’s connection with Rosales.
After the October 5 birthday party, at around 10:00 p.m., Estrada left the hotel, saying she was going to go out with Rosales. Estrada returned to the hotel room around midnight.
The next morning, Garcia and Kalac came to the hotel room. Gonzalez knew Garcia because they went to the same high school. Kalac looked like he was on drugs. He came into the room and sat on the couch. Garcia asked Gonzalez to “pack a bowl,” and Gonzalez replied that they had no drugs. Gonzalez then asked Estrada if she wanted to call Rosales to order a “teena” -- a 1/16th of crystal methamphetamine. Kalac then indicated he wanted to purchase $50 worth of heroin, but had only $30. Estrada told Kalac she could get him $50 worth of heroin for $30. She then called Rosales.
Gonzalez denied that anyone spoke about robbing Rosales. He did not have a gun or see any guns, and there were no discussions about guns. Gonzalez also stated they planned to move to another hotel, explaining that the hotel manager had called and said they had to leave because too many people were coming in and out of the room.
After Estrada finished speaking with Rosales, Gonzalez left the hotel to meet Rosales at the laundromat across the street. Gonzalez asked Garcia to come with him, and Garcia agreed. There was no mention of being a lookout. Gonzalez identified himself in the hotel’s video surveillance footage as the first person shown exiting the hotel.
Gonzalez waited outside the laundromat for 20 to 30 minutes. He then began walking toward the corner of Prairie and 112th, where he noticed Rosales sitting in a car with the window down, looking at him. He walked over to Rosales, and said, “What’s up, Victor?” Rosales did not respond. Gonzalez repeated his greeting, but Rosales remained silent. Gonzalez then asked, “Do you want me to get Erica?” Rosales responded by raising a handgun in his right hand. In fear for his life, Gonzalez grabbed the gun, and was able to take it from Rosales. Rosales tried to retrieve the gun -- now in Gonzalez’s right hand -- and used both hands to grab Gonzalez’s right wrist. As Gonzalez pulled away and turned his body, the gun discharged. Gonzalez denied intentionally pulling the trigger or trying to kill Rosales.
Gonzalez ran from the scene and walked into the laundromat. He waited for Rosales’s car to drive away. He then left the laundromat and found Garcia standing nearby. Gonzalez testified he was unsure where Garcia was when the incident occurred. Gonzalez and Garcia walked along Prairie, where they encountered Kalac. Kalac said, “We’re at the American Inn. We got a room.” Gonzalez then gave Kalac the gun because he was scared of retaining possession of it. He did not tell Kalac to dispose of the gun. An acquaintance who happened to be driving by the location picked up Gonzalez but not Garcia, and dropped him off at 105th Street. Gonzalez gave the man $70 and told him to tell Estrada to get another hotel room.
Gonzalez called another acquaintance to give him a ride. While in the car, Gonzalez called the first acquaintance and learned that Estrada was staying at the Deluxe Inn. He was dropped off there, and joined her in the room. Gonzalez placed his cell phone, remaining money, and other belongings inside a drawer and went to sleep. He awoke at the sound of Estrada leaving the hotel room. She told him she wanted to see her son, and Gonzalez told her he would go with her. Estrada drove Gonzalez to her house, introduced him to her son, and took her son back inside. As Gonzalez and Estrada were driving away, the police arrived and arrested them.
Corral testified that in 2009, he had hired Gonzalez for $200 a month as a caregiver.
Neither Estrada nor Garcia testified.