Metropolitan News-Enterprise


Wednesday, June 6, 2007


Page 3


C.A. Upholds Conviction in Cyclist’s Shooting of Man on Park Bench




A Los Angeles man was properly convicted of murdering a man who was sitting on a park bench after the man and his friends laughed at the defendant, the Court of Appeal for this district ruled yesterday.

In an unpublished opinion by Justice Richard Aldrich of Div. Three, the panel rejected several challenges to rulings by Los Angeles Superior Court Judge David Mintz at the trial of David A. Falcon.

Witnesses testified that Falcon and another man, one pedaling and the other on the handlebars, biked past a bench where Sean Allen and two others were sitting at Jesse Owens Park. After the front passenger fell of the bike, the three laughed.

Falcon and the other man left the scene, but returned, then dismounted, went up to the three on the bench. Falcon took out a gun and pointed it at one of the others, but when his companion said “no, not him,” Falcon shot Allen from about 15 feet way, then ran.

Allen bled to death. Police were called, spotted Falcon in an alley near the park, and pursued him when he ran.

Falcon was eventually identified by a police officer as the person who ran away, and by the two eyewitnesses as the shooter. The murder weapon was found when a search warrant was served at his house.

The defense claimed mistaken identity and presented two alibi witnesses. On rebuttal, prosecutors presented evidence that Falcon, in speaking to detectives after his arrest, admitted he was at the scene but blamed the shooting on his brother.

Jurors found the defendant guilty of first degree murder, with a special finding that he personally and intentionally shot the victim, causing death. He was sentenced to 50 years to life in prison under the “10-20-Life” law.

Aldrich, writing for the Court of Appeal, said the trial judge did not err in admitting the preliminary hearing testimony of eyewitness Jonathon Carroll.

Mintz made the ruling after a hearing at which a detective explained that the 18-year-old witness and his mother told him before the preliminary hearing that the young man would not testify because he was afraid, and refused the detective’s offer to relocate the family, and that the witness only testified after being brought to court in handcuffs pursuant to a bench warrant.

Carroll failed to appear for the trial setting conference, even though ordered to do so. The judge ordered him taken into custody, but the order was still outstanding at time of trial.

The detective said he had made numerous trips to the witness’ residence, but no one answered the door or telephoned in response to his leaving his business card. He also checked law enforcement databases and contacted hospitals as well as the victim’s relatives in an effort to find him.

The evidence was sufficient to establish that due diligence had been exercised in seeking to produce the witness for trial, Aldrich said. The prosecution is not obligated to monitor a witness’ whereabouts, or exhaust every possible investigative avenue in trying to find him, the justice explained.

The justice went on to reject the contention, raised in a petition for habeas corpus that was consolidated with the appeal, that the defendant’s trial lawyer rendered ineffective assistance by asserting an alibi defense despite knowing that the defendant had told police he was at the crime scene.

“Counsel was faced with a difficult factual situation not of his own making,” Aldrich said, and was entitled to make the strategic judgment that the alibi defense was more believable than the claim that the defendant was present but was not the shooter.

Even if the choice was unreasonable, the justice went on to say, it was not prejudicial given the strength of the prosecution’s case.

Attorneys on appeal were Diana M. Teran, by appointment, for the defendant and Deputy Attorneys General Robert Katz and Robert Snider for the state.

The case is People v. Falcon, B187200.


Copyright 2007, Metropolitan News Company