P. v. Suarez

Filed 6/12/08 P. v. Suarez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Reversed.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT: *

A jury convicted Juan Lopez Suarez of accessory to a murder committed by his son. Suarez challenges the sufficiency of the evidence corroborating the accomplices testimony to support his conviction.

FACTS

On May 15, 2006, Manuel Rodriguez was murdered as he walked to an ice cream truck with a friend. According to Jesus Flores, that same day, he received a telephone call from his ex-girlfriend Ruby Suarez, asking him to help her find her brother, Jose Suarez, because he might be in trouble. About an hour after the telephone call, Flores arrived at the Suarez residence where appellant, Juan Suarez, (hereinafter Suarez) lived with his wife Luz Suarez, and their three children, Ruby, Jose[1], and an 11-year-old-minor. Although Jose Suarez was eventually arrested for the first degree murder of Manual Rodriguez, Flores testified that before he arrived at the Suarez house, he was only told that Jose, a known gang member, might have done something wrong. According to Flores, Suarez, Luz, and Ruby were present in the house when he agreed to help Ruby look for her brother. Flores testified that he and Ruby located Jose with his friend Kandace Ortega in Buena Park and he took them to his house in Long Beach where they spent the night.

Flores testified that on the following day, May 16th, he received a telephone call from Suarez asking him to return to the Suarezs house. According to Flores, by this time, he already knew that Jose may have been involved in a shooting. Flores testified at times that Suarez individually and at other times the Suarez family, stated they wanted to get Jose out of the area and were planning to send Jose to relatives in Arizona. According to Flores, Suarez asked him to drive Jose to El Dorado Park to meet Joses uncle, Hector Suarez, who would then drive Jose to Arizona. Flores complied and drove Jose and Kandace to El Dorado Park in Long Beach where he was met by Hector, who then drove away with Jose and Kandace.

Two days later on May 18th, Flores was interviewed at the Placentia Police Department where he provided officers with several different versions of his involvement in this case before eventually settling on the aforementioned facts. On the following day when police went to the Suarez home looking for Jose, Detective Butts asked Suarez when he had last seen Jose. Butts testified that Suarez said his wife told him that Jose came to the house on May 15th to take a shower, left, and he had not seen him since. When asked if he knew of Joses whereabouts, Suarez stated he did not know. On this same day, Jose, Hector, and Kandace were located and arrested in a motel in Arizona.

At the end of the prosecutions case, the court denied Suarezs motion for acquittal pursuant to Penal Code section 1118.1. At the conclusion of the testimony, the court correctly instructed the jury that [i]f the crime of Accessory to Murder was committed, then Jesus Flores was an accomplice to that crime. [] You may not convict the defendant of Accessory to Murder based on the statement or testimony of an accomplice alone. You may use the statements or testimony of an accomplice to convict the defendant only if: [] 1. The accomplices statement/or testimony is supported by other evidence that you believe; [] 2. That supporting evidence is independent of the accomplices (statement/or testimony); [] AND [] 3. That supporting evidence tends to connect the defendant to the commission of the crimes. [] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/or about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. []] Any (statement/or testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/or testimony) the weight you think it deserves after examining it with care and caution and in light of all of the other evidence. (Judicial Council of California Criminal Jury instructions (2006), CALCRIM No. 335.)

The jury convicted Suarez of being an accessory to murder and acquitted Suarez of being an accessory for the benefit of, direction of, or in association with Joses street gang. Suarez was sentenced to prison and he contends his conviction as an accessory must be reversed because there is insufficient evidence corroborating the accomplices testimony to support the conviction.

DISCUSSION

Penal Code[2] section 32 states, [e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony. In this case, Flores testified that Suarez knew that Jose had been involved in a shooting when he enlisted his help to transport Jose to Arizona to avoid arrest.

Section 1111 states an accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. In this case, Flores testified under a grant of immunity from the prosecution that at the time he transported Jose to El Dorado Park, he did so with the knowledge that Jose had been involved in a shooting, and with the understanding that Joses uncle would meet him at El Dorado Park and transport Jose to Arizona in order to avoid apprehension.

With respect to an accomplices testimony, section 1111 states, [a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Suarez relies primarily on People v. Falconer (1988) 201 Cal.App.3d 1540, which holds that [t]o determine if sufficient corroboration exists, we must eliminate the accomplices testimony from the case, and examine the evidence of other witnesses to determine if there is any inculpatory evidence tending to connect the defendant with the offense. (Id. at p. 1543.) In Falconer, five armed intruders conducted a raid in an attempt to steal marijuana plants from a grower. One of the intruders was wounded and later arrested at a hospital. When interviewed, one of the other intruders said Falconer helped plan and participated in the raid, and he was also the wounded intruders father. Although the victim was unable to identify any of the intruders, non-accomplice witnesses testified that eight or nine months before the raid, Falconer purchased marijuana from the grower. On review, the Court of Appeal reversed the conviction and explained that once it removed the accomplices testimony, the remaining evidence that Falconer knew the grower, had been at his residence eight or nine months before, and that he was the father of the wounded intruder, connected Falconer to one of the intruders and to the owner of the property, but not to the crime. According to Falconer, it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators. (Id. at p. 1543.) Suarez contends the facts in this case are similar to Falconer in that once all of Floress statements and testimony are eliminated from this case, there is no independently corroborated evidence that remains to connect Suarez to the commission of the offense.

Respondent argues this case is nothing like Falconer because there is a great deal of evidence to corroborate Floress testimony. According to respondent, the evidence showed appellant spoke repeatedly with Flores [ ] on the phone and at [Suarezs] house, lied to police about his knowledge of Joses whereabouts, and successfully persuaded his accomplice to take Jose to someone who could get him to Arizona, where Jose was subsequently found. We disagree with respondents characterization of a great deal of evidence to corroborate Floress testimony. The only evidence introduced at trial that Suarez spoke repeatedly with Flores came from Flores. And when asked about phone records to verify Floress testimony, Detective Perry testified that he had obtained Floress phone records and didnt recall any phone numbers coming from Suarezs phone. Likewise, evidence that Suarez persuaded Flores to take Jose to meet Hector, and lied to the police about Joses whereabouts are all based solely on Floress testimony and uncorroborated by independent evidence.

Respondent contends [t]he evidence of Jose being found in Arizona with [Kandace] and Hector corroborated Floress testimony and was therefore sufficient to convict appellant. However, corroboration for purposes of an accomplices testimony is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ( 1111.) True, Jose, Hector, and Kandace were all found in Arizona, but [t]o corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation omitted.] The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necesary (sic) that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citations omitted.] . . . [T]he corroborative evidence may be slight and entitled to little consideration when standing alone. [Citations omitted.] [Citation.] (People v. Bunyard (1988) 45 Cal.3d 1189, 1206; See also People v. Rodrigues (1994) 8 Cal.4th 1060, 1128; People v. McDermott (2002) 28 Cal.4th 946, 985-986.) After eliminating Floress testimony in this case, there is no evidence that Suarez was the family member responsible for Joses flight to Arizona.

Citing this courts opinion in People v. Vu (2006) 143 Cal.App.4th 1009, respondent argues that false or misleading statements made to authorities may constitute corroborating evidence, (Id. at p. 1022) and Suarezs lies to Detective Butts about the last time he had seen Jose and Joses whereabouts, constitutes sufficient independent corroborating evidence. However, the examples cited by respondent are not supported by evidence in the record, fail to connect Suarez to the commission of the offense, and cannot be explained independent of the Floress testimony.

Although respondent contends Suarez lied about the last time Jose had been to the house because [Suarez] had Flores bring Jose [to the house] on May 16, 2006, there is no evidence in the record to support respondents claim. Flores testified that Suarez asked him to return to the Suarez house on May 16th, and he complied. There was never any testimony or evidence in the record that Suarez asked Flores to bring Jose to the house with him. There was no testimony or evidence that Flores in fact transported Jose to the Suarez house on May 16th or at any time thereafter. There was no evidence that Jose was at the house on May 16th or at any time thereafter, and there was never a question by the prosecutor asking Flores if Jose returned to the house with him on May 16th or at any time thereafter.

With respect to Suarezs statement that he was unaware of Joses whereabouts when asked by Detective Butts on May 19th, the only basis for this being a false statement is the fact that it contradicts Floress testimony and therefore not independently corroborated.

Although respondent refers to substantial corroborating evidence and the great deal of corroborating evidence in this case, once Floress testimony is excised from the transcript, we are hard pressed to find even slight evidence connecting Suarez to the commission of the offense. When we exclude Floress testimony, we are left with Detective Buttss testimony that Suarez stated his wife told him that the last time Jose had been to the house was on May 15th, and that he did not know of Joses whereabouts on May 19th. Also remaining as evidence in the record is Detective Perrys testimony that he arrested Jose, Hector, and Kandace in Arizona, Hectors telephone number came up on Floress phone, and there are no phone records supporting Floress claim that Suarez called him on the phone numerous times.

The trier of facts determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citation.] (People v. McDermott, supra, 28 Cal.4th at p. 986.) In this case, after excluding Floress testimony, we find no independent evidence corroborating Floress testimony that connects Suarez to the commission of the offense. For these reasons, the judgment is reversed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

* Before Sills, P. J., Rylaarsdam, J., and Ikola, J.

[1] First names are used solely for ease of reference and clarity of familial relationships with the same surname. We do not intend this informality to reflect any lack of respect.

[2] All further references are to the Penal Code.