P. v. Reynoso 12/3/01 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F034709

Case Date: 02/21/2002

Preview:Filed 12/3/01

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F034709 Plaintiff and Respondent, (Super. Ct. No. 42048) v. JULIAN JESUS REYNOSO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Julian Jesus Reynoso was convicted of first degree murder, assault with a firearm, knowingly and maliciously dissuading a witness, and with being an accessory after the fact. In addition, it was found that a principal in the murder was armed with a firearm; as to the other convictions, it was found that defendant was personally armed with a firearm. Defendant appeals, claiming improper denial of his Wheeler1 motion,
1

People v. Wheeler (1978) 22 Cal.3d 258.

insufficiency of the evidence that he aided and abetted his brother John in the murder,2 instructional error, error in the calculation of his conduct credits, and the erroneous imposition of an excessive restitution fine. We reverse for Wheeler error. FACTS Defendant and his brother John3 were at the home of Monica Perez on the evening of December 11, 1998. Also present were Mario Martinez (the victim), Mona Estrada (a friend of the victim), Marcela (Monica's daughter), Amador Estrada IV (a neighbor of Monica's), Elizeth Manjarez (Amador's girlfriend), and several others. Defendant and John were outside when Enrique Mayorga drove by and threw a bottle at Mario's car. Defendant and John went inside to tell Mario. Mario came out but ignored the incident. Defendant and John left in their car to try and find Enrique. They were unsuccessful and, when they returned, John asked Mario why he had not taken care of Enrique. Mario said he was not going to do anything about the incident. John and Mario argued. Later that evening, defendant and John went into the bedroom and closed the door. The only entrance to the one bathroom in the house was through this bedroom. Defendant and John had been in the bedroom approximately five minutes when Mario knocked on the door because he needed to use the bathroom. Defendant stuck his head out, and Mario told him he wanted to use the bathroom. Defendant said no and shut the door.

2

Defendant's brother John was a codefendant at trial. John was also convicted of first degree murder and has filed a separate appeal in F034873. Defendant has filed supplemental briefing asking to join in certain arguments raised by John in John's appeal. We have taken judicial notice of John's appeal and shall treat the issues raised in John's briefs, which defendant seeks to join, as if defendant personally raised them.
3

Defendant was tried with his brother John Reynoso. John has filed a separate appeal (F034873) in which we likewise reverse in a published opinion. 2.

Mario waited a while and then tried to open the door, again saying he needed to use the bathroom. John and defendant told him to wait. Mario stood by the door as defendant came out. Defendant grabbed Mario by the coat and asked him if he had a gun. Mario asked, "what are you doing?" Defendant patted Mario down for a gun and again asked Mario if he had a gun; he said no. Mario was not reaching for anything in his pockets. Defendant told John that Mario had a revolver. John came out of the bedroom, pointed a shotgun at Mario, and shot him. Mario fell to the floor mortally wounded by a gunshot wound to the left side of his chest. The gunshot left a large hole in Mario's chest and caused major destruction to his heart. The wound was a nonsurvivable wound. Defendant and John left. As they exited defendant pointed a gun at Juan and told him to shut up. John told Monica to not mess around with them or she would get it too. The shotgun and a handgun were found in a field several months later. On the evening of the shooting, before the shooting occurred, Amador Estrada Jr. (the father of Amador Estrada IV) met John and defendant. Defendant had something black tucked in his waistband. Defendant closed his coat when he saw Amador looking in that direction. Also earlier in the evening Amador Estrada IV saw a shotgun under a pillow in the bedroom. John claimed he shot Mario because he was in fear for defendant's life. Defendant's defense was he did not aid or abet John and had no knowledge that John was going to shoot Mario. DISCUSSION I. Wheeler Error During jury selection, the People challenged four prospective jurors. The last two challenges were to Hispanic jurors. After the jury and alternates had been selected but had not yet been sworn, John made a Wheeler motion, claiming the prosecutor had 3.

systematically excluded Hispanics from the jury. Defendant joined in the motion. Counsel for John noted that "the jury as it's constituted now has twelve whites as the twelve jurors and three white alternates." Initially the court stated it believed the motion was not timely,4 but it proceeded with the motion. The court noted the People had exercised three or four challenges and two of those were to Hispanics. The court asked the People to give their reasons why the two Hispanics were excused. The People questioned whether the court was finding a prima facie case. The court stated it was. The People then gave their reasons for excluding the two Hispanic prospective jurors. As their first challenge of a prospective juror of Hispanic background (exercising their third peremptory challenge), the People excused a Mrs. Lopez. The court had asked each juror to state his or her name, general address, occupation, length of occupation, marital status, spouse's occupation, prior jury service, involvement in a criminal case, and legal or medical training. Lopez gave the following response to the court's inquiry: "My name's [Mrs.] Lopez. I live in Earlimart, California. I've lived there most of my life. I'm a case manager for at risk youth. My husband is a foreman for farm labor. I've never been selected for jury. I've never been involved in a criminal charge or victim. I have no legal or medical training. Never been involved in law enforcement. And I do have relatives that are in law enforcement." The prosecutor's reasons for excluding Lopez were: "Your Honor, the People dismissed Miss Lopez based upon her being a counselor for at-risk youth. The People feel that Miss Lopez would have an undue sympathy for both defendants in this case because they are young and definitely if not at risk, past risk. [

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