Tuesday, August 7, 2001
Page 1
S.C. Upholds Death Sentence, Rejecting Contention That Joining It With Another Case Was Prejudicial
By a MetNews Staff Writer
The state Supreme Court yesterday affirmed the death sentence of an 18th Street gang member for the 1990 killing of a rival gang member and the murder of a driver a few weeks later in an abortive carjacking.
The high court rejected defendant Sergio Ochoa’s assertion that he was unfairly prejudiced by the Los Angeles Superior Court’s decision to join the case of the retaliation shooting with the prosecution of the other killing.
Ochoa, who asked that the jury in the carjack case not be given all the evidence of his gang affiliation, argued that the jury became inflamed against him because it became privy to gang evidence due to joinder.
But Justice Janice Rogers Brown called it doubtful that evidence from the first case was more inflammatory than the second. If anything, she suggested, it was just the opposite.
“The evidence supporting the former charge indicated defendant assisted [a fellow gang member] in shooting the individual who, in their minds, had shot [the gang member’s] brother three hours earlier, and had shot at defendant on several occasions a few weeks before,” Brown said. “By contrast, the evidence supporting the latter charge showed defendant was the instigator and perpetrator of a killing for which the only motive was punishing [the carjack target] for refusing to abandon his car on defendant’s demand.”
Ochoa joined with his fellow gang members on Jan. 3, 1990, in the midst of a “war” between their gang and the Crazy Riders in the city’s Pico-Union neighborhood. An 18th Street gang member had killed a Crazy Rider a day earlier, and the Crazy Riders retaliated shortly thereafter with the shooting of the brother of a 18th Street member.
The group then followed and killed Crazy Riders member Pedro Navarette.
He was involved in the attempted carjack on Jan. 20.
Ochoa was arrested on Jan. 21. Soon after, he had the number 187—referring to the California Penal Code section prohibiting murder—tattooed over his eye.
An LAPD detective with expertise in gang tattoos testified as to the meaning of the “187” marking.
Brown said Superior Court Judge Sandy Kriegler properly exercised discretion in allowing the testimony.
“We have observed the culture and habits of criminal street gangs are not matters within common knowledge for Evidence Code section 801 purposes...and have therefore approved expert testimony to describe the significance of gang graffiti and hand signs,” Brown said. “Just as [an] expert witness...could testify as to the significance of specific symbols of graffiti without ascertaining the subjective intent of the graffiti’s author, [an expert] could testify as to the significance of the ‘187’ tattoo without obtaining defendant’s statement on the subject. Furthermore, considering the tattoo itself was admissible, and the strength of the People’s overall case, we conclude any error in admitting the detective’s expert opinion was surely harmless.”
The court also rejected Ochoa’s assertion that his decade on death row violated the Eighth Amendment proscription against cruel and unusual punishment.
Comparing murder cases in general with those of Nazi war criminals and the 1963 bombers of the Birmingham church where four little girls were killed, where the alleged perpetrators were tried many years after the crimes, Brown said the delay in imposing punishment actually furthers the state’s goals—deterrence and retribution.
“Insofar as defendant complains of the extreme discomfort he suffers as a result of his uncertainty regarding execution, that discomfort would enhance the deterrent effect of the death penalty by increasing the penalty imposed for the commission of capital crimes,” the justice said. “By contrast, an announcement by this court that any defendant whose automatic appeal has been pending for many years is exempt from subsequent execution would eviscerate any possible deterrent effect of a death sentence, for it would probably never be imposed.”
Brown’s colleagues were unanimous in joining her opinion, with one exception. Justice Joyce Kennard said the court should simply hold that the delay between the sentence and the execution is reasonable.
“I would go no further,” she said.
The case is People v. Ochoa, 01 S.O.S. 3899.
Copyright 2001, Metropolitan News Company