Tuesday, October 5, 2010
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C.A. Upholds Conviction in Paramount Gang Slaying
By KENNETH OFGANG, Staff Writer
The murder conviction and 50-year-to-life prison sentence of a Fresno man found guilty of killing a rival gang member in Paramount was affirmed yesterday by this district’s Court of Appeal.
Div. One rejected contentions that Los Angeles Superior Court Judge Ronald Skyers should have instructed jurors at Alejandro Ariza’s trial on the theories of self-defense and imperfect self-defense.
Ariza was convicted of the October 2007 murder of Luis Rodriguez, who was shot in the chest on the sidewalk of Orange Ave., near Rosecrans Blvd. Two witnesses who were shown photographs by police identified Ariza and Eduardo Velasco, who was not a party to the appeal, as the killers.
Ariza was also convicted of the attempted murder of Ivan Torres in the same incident. Testimony established that Ariza and Velasco belonged to the Paramount Locos and the victims to the Compton Barrios Segundos.
A security video from a liquor store near the shooting scene showed Rodriguez and Torres inside, with Torres in a verbal altercation with three men who could not be identified.
A search of the defendant’s home two months after the shooting resulted in seizure of a substantial amount of ammunition, as well as a black Los Angeles Dodgers hat with the letters “PM” embroidered on the side, and a belt with a “P” on the buckle, Testimony established that those letters are used as abbreviations for Paramount gangs, including the Paramount Locos, and that a man whose description indicated he might be Ariza was seen in the area just before the shooting, wearing a black Dodgers hat.
The witness said the car was a Dodge Intrepid. After searching his house in Fresno, police learned from Ariza that his mother owned a Dodge Intrepid, which he drove, and that it had been towed a few days earlier. A search of the car yielded more live ammunition.
Velasco, who unlike Ariza testified at the trial, gave statements to police implicating Ariza. Velasco said he was surprised when Ariza took out a rifle from under the seat of his car and started shooting at the men on the street.
Those statements were recorded and played at trial. Velasco testified that the statements were untrue, that he merely told police what they wanted to hear, and that he was not present at the shootings and had no personal knowledge of what happened.
Jurors found Ariza guilty of both murder and attempted murder and found that he had personally used a firearm. Prior to sentencing, he moved for a new trial.
At the hearing on the new trial motion, his attorney, Deputy Alternate Public Defender Robert Cortes, said that one of the grounds for a new trial was the defendant’s claim that Cortes committed ineffective assistance in advising him not to testify. Cortes told Skyers that he had indeed given that advice, that he believed at the time that such testimony would not be in the defendant’s interests, and that the defendant acquiesced.
The judge found that Cortes was not ineffective, and denied the motion on the other grounds asserted as well.
On appeal, his court-appointed attorney, Allen G. Weinberg, argued that the judge should have given a requested instruction on the imperfect self-defense theory of murder, and a sua sponte instruction on self-defense as a complete defense to the charge of homicide.
But Justice Victoria Chaney, in an unpublished opinion, said the evidence would not have supported either instruction. Even if Torres “flashed” a gun, as Velasco claimed in his statement to police, there was no evidence that Ariza saw the gun or was in imminent danger, the justice explained.
As for the defense argument that Skyers should have held a Marsden hearing in order to determine whether to appoint new counsel once he was apprised that the defendant believed Cortes to have been ineffective, Chaney acknowledged a recent split of authority as to whether such a claim automatically requires such a hearing.
The better rule, she concluded, is that of People v. Richardson (2009) 171 Cal.App.4th 479, which held that a Marsden hearing is not required unless the defendant actually makes some form of request for substitute counsel.
The justice did agree with the defense that Skyers erred in admitting the ammunition seized from the defendant’s residence, which Chaney said was irrelevant because it was was not of the type used to shoot the victims. But the error was harmless, she explained, because evidence the defendant was “ a member of a violent gang who drove around with a rifle under his seat,” along with Velasco’s identification of him as the shooter, consistent with other evidence, made it unlikely the jury would have reached a different verdict had the ammunition been excluded.
The case is People v. Ariza, B215199.
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