Monday, December 29, 2008
Page 3
Court of Appeal Upholds Conviction in Gang-Related Murder
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday affirmed the conviction of a San Fernando Valley gang member on charges he shot and killed a man he claimed had threatened to kill him days earlier.
Div. Four, in an unpublished opinion by Justice Nora Manella, rejected Rodolfo Leon’s contention that hearsay statements attributed to his alleged accomplices were unreliable and triggered a duty on the part of the trial judge to give accomplice instructions.
Leon, a member of the Radford Street gang, was convicted in December 2006 of the 2003 murder of Luis Espinoza Ochoa, who was shot and killed at Vanowen and Agnes Streets.
Prosecution witness Roxanna Cruz, Leon’s ex-girlfriend, testified that several days before the shooting, she and Leon were in a laundromat when Ochoa walked in and threatened to kill Leon unless he left. Cruz said Ochoa, whom she knew and had seen attack someone eight years earlier, appeared to have been drinking.
The incident was reported to police.
Cruz also testified that she and Leon had seen Ochoa walking in the area several days later, and that Leon told her he had a gun in the car and would not tell her why.
Another witness, Jenny Valdez, testified that the time of the shooting, she was living with Rafael Gonzalez, a Radford Street member. She said that Leon and Gonzalez had a conversation about the laundromat incident soon after it happened, and that on the night of the shooting, Gonzalez left the house to “back up” Leon, returning in less than an hour.
Ana Gonzalez, Rafael Gonzalez’s sister, testified that she lived in the same apartment building as her brother at the time of the shooting, that she saw Leon come to the building and call for her brother that night, and that he left with Leon and another gang member, Jonathan Hernandez.
She also testified that her brother told her that he shot Ochoa and that Hernandez told her “we shot somebody.”
The parties stipulated that if sisters Natalie and Brisa Gomez had testified, they would have told the jury that Rafael Gonzalez said he had killed Ochoa and would kill them if they told anyone.
A police officer testified that he interviewed Leon in custody, and that the defendant explained that he had told his friends Gonzalez and Hernandez about the laundromat incident, but that he told them he did not want to retaliate. He claimed that he watched from afar while they confronted Ochoa the night of the shooting, that he heard gunshots, and that Hernandez told him that Gonzalez was the shooter.
Jurors found Leon guilty of first degree murder with findings that the crime was gang-related and involved a firearm. Los Angeles Superior Court Judge Darlene Schempp, now retired, sentenced him to 50 years to life in prison under the “10-20-Life” law.
On appeal, the defense argued that the admission of statements by alleged accomplices Gonzalez and Hernandez to Ana Gonzalez and the Gomez sisters triggered a duty to instruct the jury that accomplice testimony must be corroborated and should be viewed with “care and caution.”
But Manella, writing for the Court of Appeal, noted that several cases hold that the duty to give accomplice instructions with regard to out-of-court statements by non-testifying accomplices arises only if there was a motive for the accomplice to lie or the statements were otherwise untrustworthy.
Nothing in the evidence, the justice wrote, shows any such motive. Gonzalez in particular had no reason to lie, since his statements to the Gomez sisters show he was actively trying to impede a police investigation, Manella reasoned.
In any event, she wrote, the lack of accomplice instructions did not prejudice the defendant, since his statements to the police corroborated the statements of Gonzalez and Hernandez.
Manella also rejected the argument that defense counsel rendered ineffective assistance by failing to object to Ana Gonzalez’ testimony about what her brother and Hernandez told him about Ochoa’s shooting, and in stipulating to the testimony of the Gomez sisters. The justice said that in view of the defense argument that Leon had told his friends not to retaliate and that he was not present during the shooting, it was tactically reasonable not to object to testimony that implicated the others and made no direct tie between the defendant and the crime.
Attorneys on appeal were Susan K. Keiser, by appointment, for the defendant and Deputy Attorneys General Jason C. Tran and Robert C. Schneider for the prosecution.
The case is People v. Leon, B197632.
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