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The People v. John Anthony Gonzales and

July 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN ANTHONY GONZALES AND MICHAEL SOLIZ, DEFENDANTS AND APPELLANTS.



Court: Superior County: Los Angeles Judge: Robert W. Armstrong

The opinion of the court was delivered by: Werdegar, J.

Los Angeles County Super. Ct. No. KA033736

A Los Angeles County jury found defendants John Anthony Gonzales and Michael Soliz guilty of the first degree murder of Lester Eaton (count 1), Elijah Skyles (count 4) and Gary Price (count 5). (Pen. Code, §§ 187, 189.)*fn1 The jury found true the special circumstance allegations of multiple murder and murder during the commission of robbery. (§ 190.2, subd. (a)(3) & (17)(A).)*fn2 At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales on counts 4 and 5 and hung on all other penalty phase verdicts. At the penalty phase retrial, a new jury returned a verdict of death for Gonzales on count 1, a verdict of life without the possibility of parole for Soliz on count 1, and a verdict of death for Soliz on counts 4 and 5. The trial court denied defendants' motions for a new trial (§ 1181) and for modification of the penalty (§ 190.4, subd. (e)), and sentenced them to death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).)

We affirm the judgments.

INTRODUCTION

Defendants were members of the Puente gang, a Hispanic street gang in the City of La Puente. They were charged with two separate sets of murders. In the first, Lester Eaton was killed while defendants robbed the small neighborhood store he owned, the Hillgrove Market. Gonzales's fingerprints were found on items in the getaway vehicle. The testimony of witnesses to defendants' actions before and after the robbery-murder linked both defendants to the crime. Additionally, in separate, taped conversations, each defendant admitted having participated in the robbery, and Gonzales admitted he was the shooter. The victims of the second set of murders were Elijah Skyles and Gary Price, African-American teenagers who were shot numerous times at a gas station. The prosecution theorized defendants killed Skyles and Price in retaliation for the murder of a member of the Puente gang two weeks earlier by members of the Neighborhood Crips gang. Several eyewitnesses identified Soliz as the shooter, with Gonzales providing backup. In a tape-recorded conversation, however, Gonzales said he had been the sole shooter and sole participant in the Skyles and Price murders. At the penalty phase, the jury returned a verdict of life without the possibility of parole for Gonzales for the Skyles and Price murders, but could not reach a verdict as to Gonzales for the Eaton murder or as to Soliz for either set of murders. At the penalty retrial, Gonzales took the stand for the first time in the proceedings, admitted he had shot Eaton during the Hillgrove Market robbery, and reiterated that he had been the shooter and sole participant in the Skyles and Price murders (as he stated in the taped conversation). The jury returned a verdict of death for Gonzales for the Eaton murder, a verdict of death for Soliz for the Skyles and Price murders, and a verdict of life without the possibility of parole for Soliz for the Eaton murder.

I. Facts A. Guilt Phase 1. Prosecution Case a. The Murder of Lester Eaton (1) Robbery and Murder at the Hillgrove Market

Lester and Betty Eaton, married for 43 years, owned and operated the Hillgrove Market on Clark Avenue in Hacienda Heights, an unincorporated part of Los Angeles County near the City of La Puente. As Betty Eaton testified, she and Lester were alone in the market about 7:30 on the evening of January 27, 1996. Lester was talking on the phone in a back room (the meat-cutting room) near the sink and Betty was up front behind the meat counter. Two young men entered the market; the first pointed a gun at Betty and asked, "Where do you keep your money?" He appeared to be Hispanic and between 18 and 20 years old. He wore a close-fitting cap that covered his hair and a bandanna that covered his face from the nose down. The second man pointed a gun at Lester, who said, "Put that thing down before someone gets hurt." The second man was also Hispanic, in his late teens or early 20's. He did not wear either a bandanna or a hair-covering. Betty saw the second man primarily from the back and testified that she would be unable to recognize either of the men if she ever saw them again.

The second man pinned Lester against the sink and struck him, causing blood to flow from his forehead. The next thing Betty saw was Lester lying on the floor in a fetal position behind the meat counter. She heard two gunshots and knew he had been shot. Betty panicked and ran out through the front door of the market. She saw a dark blue van parked in front. As she ran towards a neighbor's house, she heard the squealing of tires from a vehicle and thought the robbers were coming after her. She pounded on the neighbors' door until they opened it, ran in and dialed 911. She returned to the market as the first patrol car was pulling up. The blue van that she had seen parked in front was gone. When sheriff's deputies later drove her from the market to the sheriff's station, she saw what appeared to be the same blue van now parked at the corner of Clark Avenue and Turnbull Canyon Road.

(2) The Crime Scene Investigation and Autopsy

Responding to a patrol dispatch, sheriff's deputies found Lester Eaton lying on the floor behind the Hillgrove Market's meat counter in a large pool of blood, with a bullet wound to his back. Five minutes later, paramedics arrived, examined Lester and pronounced him dead. His left front trouser pocket had been pulled inside out, and he was wearing an empty holster on his belt. Despite a thorough search, no expended shell casings were found at the crime scene, which led one of the investigating officers to infer that the weapon used was a revolver, not an automatic or a semiautomatic weapon, which eject their casings when fired. Lester's shotgun and his revolver, a Colt, which he wore in the holster on his hip, had been taken from the store, as had his wallet. Personal items from his wallet were later discovered nearby scattered along the road. The market's cash register was on the floor, and the money tray was missing, along with the day's proceeds (about $100 in cash plus food stamps). Weeks later, while cleaning up the market, Betty found an expended bullet, which she gave to investigators.

The medical examiner found five gunshot wounds to Lester's body: two to the head and three to the chest (of which one was significant and two were superficial). The two wounds to the head and the significant chest wound were consistent with the victim's having sat on the floor with the shooter standing over and behind him. One of the head wounds and the significant chest wound were fatal; the other head wound was serious and possibly fatal. One wound to the head had been caused by a bullet fired at close range, from between half an inch and 18 inches away; the other was a near-contact wound shot from within half an inch. There was a laceration to the head caused by blunt force trauma, consistent with having been struck by the barrel of a gun.

(3) Contents of the Getaway Vehicle

Patrol officers found the getaway vehicle, a blue 1993 Chevrolet Astro van, parked two to three blocks away from the market on the corner of Turnbull Canyon Road and Clark Avenue. The van had been reported stolen, and the passenger-side window was broken out. Inside, investigators found a cash register tray and food stamp coupons. At trial, Betty Eaton identified the cash register tray found in the van as the one taken from the market. She also identified three receipts (bearing her handwriting and that of a customer) found in the van as being from her cash register. Other items found in the van included an unexpended bullet, a Raiders jacket and various pieces of paperwork unconnected to the market. Fingerprints on two of the pieces of paperwork were identified as those of defendant Gonzales.

(4) Dorine Ramos and Events Before the Robbery Murder

Earlier on the day of the murder, Dorine Ramos was running errands with her friend Rosemary. Rosemary's boyfriend, Randy Irigoyen, was driving the two in Rosemary's car. As former gang member Salvador Berber later testified at trial, Irigoyen and defendants Gonzales and Soliz were members of the Perth Street gang, which was a "clique" (subgroup) of the Puente criminal street gang. Irigoyen suggested to Ramos that she should get her own car and took her to look at two vehicles he said she could have "for cheap." The second vehicle he showed her was a blue Astro van, which she later testified looked like the getaway vehicle later used for the Hillgrove Market robbery murder. Ramos told Irigoyen she was not interested in buying either vehicle, and he then drove them to a nearby house.

Ramos stayed in the car while Irigoyen joined a group of about 10 men gathered in front of the house. They ranged in age from 18 to 29 years old and all had similar, very short haircuts, which Ramos described as being "cholo" (gangster) style. Ramos saw defendants Gonzales and Soliz among the group. Defendants told Irigoyen that they needed a "cuete" (Spanish slang for a gun). They said they were going to do a "jale" (slang for a criminal job) with the "cuete." Soliz indicated that he and Gonzales were waiting for a ride to go pick up a van. A Honda Prelude drove up to the front of the house and Irigoyen handed the driver a gun. The driver said, as he drove away, that he had to get another gun. Irigoyen gave bandannas to Gonzales and Soliz, who wrapped them around the lower part of their faces. Gonzales was carrying a Raiders jacket, similar to the one later recovered from the van after the Hillgrove Market robbery-murder. When the Honda Prelude returned about 6:30 p.m., defendants got in and drove off. About five minutes later, Irigoyen drove Ramos home. They drove past the location where the blue van had earlier been parked, but it was gone. Later that night, Ramos saw a news broadcast about the Hillgrove Market robbery murder showing the same blue van she had seen earlier that evening. She contacted the police two or three days later.

(5) Testimony of Richard F. Alvarez

Richard F. Alvarez knew defendants Gonzales and Soliz; Alvarez's brother was married to Gonzales's sister. On the night of the murder, between 7:00 and 8:00 p.m., Alvarez received a call from Gonzales, who asked Alvarez to pick him up from the corner of Seventh Street and Turnbull Canyon Road. Alvarez drove there and picked up Gonzales and Soliz, along with a third individual he knew as "Clumsy" (whose real name was Michael Gonzales). Alvarez dropped the three men off at the house of a woman named Jennifer, where Alvarez and defendants remained the rest of the night partying.

Deputy Woodrow West was a homicide investigator who testified about an interview he had with Alvarez some time after the Hillgrove Market robbery-murder. West testified that Alvarez initially denied any knowledge of the robbery murder, but eventually admitted that between 6:00 and 7:00 p.m. on the night of the crime he had received a phone call from defendant Gonzales, who asked to be picked up at Jennifer's house. Alvarez met defendants and "Clumsy" at Jennifer's house and followed them in his car while they drove a blue van to a location on Turnbull Canyon Road in Hacienda Heights. Alvarez was told to wait while the three men left in the blue van. They returned a short time later, parked the van, and got into Alvarez's car. Alvarez drove them back to Jennifer's house where they partied the rest of the evening. At trial, Alvarez denied he told Deputy West he had dropped the three men off before the robbery and waited for them. Alvarez insisted he had only picked the men up after the robbery.

On March 15, 1997, Alvarez visited defendant Gonzales, who was incarcerated in the county jail. Their conversation was secretly taped by the authorities and later played for the jury. In the tape, Alvarez alluded to the fact that at defendants' preliminary hearing, a witness named Kimberly had mentioned Alvarez by his nickname, "Richie Rich," as the person who had driven defendants and Clumsy to the intersection on Turnbull Canyon Road before the robbery of the Hillgrove Market. Gonzales told Alvarez not to worry because many people had the nickname "Richie Rich."

(6) Soliz's Taped Conversation with Luz Jauregui

On October 19, 1996, a local newspaper ran a story on the Hillgrove Market robbery murder, stating that Gonzales had been arrested and two more suspects were being sought. On December 15, 1996, Luz Jauregui, Soliz's fianceee, visited him in the county jail where he was incarcerated on an unrelated charge. Their conversation was secretly recorded by the authorities and played to the jury. Soliz told Jauregui that he was growing his moustache because "they said these fools are young that did this shit. I got some glasses. I'm gonna let my hair grow a little, comb it when I start to court, put on a suit and tie." Referring to the newspaper article on the robbery murder, Soliz stated: "It says . . . they got two more suspects. They haven't found 'em yet? Damn, they got one of 'em right here. 'But your honor, I'm a changed man.' "

b. The Murders of Elijah Skyles and Gary Price (1) Events Preceding the Murders

Vondell McGee was with Elijah Skyles and Gary Price just before they were killed around 12:40 a.m. on April 14, 1996. After finishing his work shift at a Chuck E. Cheese restaurant, McGee met Price, his cousin, and Skyles, his friend, and walked with them to a nearby Shell gas station located on the corner of San Bernardino Road and Azusa Avenue in the City of Covina, where they talked for a while. Skyles was 15 years old and Price was 18 years old. McGee saw a tan Honda Accord (1989-1991 model year) pull into the gas station. McGee later identified a photograph of Augustin Mejorado's car as depicting a car like the one he saw that night.*fn3 The car had about five people in it, who appeared to be Hispanic. The car stopped for a moment, and several people in the car stared at Skyles, Price and McGee; the car then turned and drove off. McGee talked with Skyles and Price for about another five minutes. He gave them some change for the pay phone, then left for home on his bike.

About a minute or two later, as McGee was bicycling through the parking lot of a nearby shopping center, he heard about 10 or 12 gunshots. McGee stopped, ran for cover, then made his way home, where he paged Price. Without waiting for a response, McGee bicycled back to the gas station and found Skyles and Price lying dead on the ground next to each other near the pay phone. About five minutes had elapsed from the time McGee first heard the gunshots; police officers were already at the scene. It was a clear night and the gas station was well lit, including the area around the pay phone.

(2) Eyewitness Carol Mateo

Between 12:40 and 12:45 a.m. on April 14, 1996, Carol Mateo was driving on San Bernardino Road near the intersection with Azusa Avenue. Her brother, Jeremy Robinson, was in the front passenger seat, and her husband Jose Mateo, was in the backseat. She heard a series of loud popping sounds (more than five and fewer than 12) and slowed down, thinking something was wrong with her car. Robinson then screamed, "Oh shit. Look over there at the gas station. That guy's shooting those guys." He pointed towards the gas station. She looked and saw a man shooting two African-American teenagers in the payphone area of the gas station. She estimated she saw this from a distance of 50 feet, while her car was either at a full stop or barely moving. The shooter, a Hispanic male, about 20 years old, five foot seven to five foot eight inches tall, of medium build, with a very short hair style, was standing about four to five feet away from his victims and had his arm extended at shoulder length. She identified the shooter in court as defendant Soliz.

Mateo saw both victims fall after they were shot. One of the victims wore a dark blue-and-black checkered flannel shirt. After he fell, he tried to crawl away, but Soliz walked up and shot him again. After Soliz stopped firing, he turned and looked in Mateo's direction for about three to five seconds, and she saw the front of his face. Soliz then turned around and ran to a car parked in the gas station, a beige-colored Honda Accord. Mateo testified that the car in a photograph of Augustin Mejorado's car looked like the car she saw. She also saw defendant Gonzales standing by the car, and identified him in court. At the time of trial, Gonzales had longer hair and was wearing glasses. Mateo testified that Gonzales's appearance in a photograph with short hair was similar to how he looked on the night of the murder.

Mateo drove to the Chuck E. Cheese restaurant on Azusa Avenue and called the police from an outside pay phone. As she was doing so, she saw the same car she had seen at the gas station pull in and then go immediately back out of the driveway. She saw defendants in the front seats of the car. When interviewed by investigators, she selected Soliz's photograph out of several shown to her. At defendants' preliminary hearing, she identified Soliz as the shooter.

(3) Eyewitness Jeremy Robinson

Carol Mateo's brother Jeremy Robinson, who was a passenger in her car that night, testified he heard shots and saw the shooter, whom he described as being Mexican, about 22 years old, five feet eight inches in height, and having a shaved head. In court, Robinson pointed to Soliz as looking familiar and like the shooter. The car the shooter entered at the gas station was an early 1990's beige Honda Accord, which Robertson testified looked like that in the photograph of Augustin Mejorado's car. During the investigation, Robinson was shown three sets of six photographs and identified a photograph of Soliz as looking like the shooter. Robinson was unable to identify Soliz at the preliminary hearing.

(4) Eyewitness Alejandro Garcia

On the night of the murder, Alejandro Garcia was working at the 24-hour Shell gas station on the corner of San Bernardino and Azusa in Covina. About 12:40 a.m., Garcia was inside the office area of the gas station talking on the phone when he heard more than five gunshots coming from the eastern side of the lot, where the bathrooms and phones were located. Garcia looked through the office windows towards the bathroom area and saw two people running toward a car. They both got into the backseat of the car, a four-door, gray 1990 Honda. The two men were Hispanic. One of the men, who appeared to be about 20 years of age, with very short shaved hair, used the driver's side rear door. He was carrying a small bag about the size of a handgun. The car was full of people, one of whom was a woman sitting in the back. Before the shooting, Garcia had seen the car drive by and saw two people in the front and three in back, including the woman. The car looked like that in the photograph of Augustin Mejorado's car. Before trial, Garcia was shown five sets of six photographs and identified a photograph of Soliz as looking like the shooter. At trial, Garcia was unable to identify anyone in the courtroom as the shooter.

(5) Eyewitness Judith Mejorado

Judith Mejorado was the sister of Augustin Mejorado, who was the owner of the Honda Accord identified as the car involved in the gas station shootings. At trial, Judith stated she did not recall any of the events at the gas station. The court declared her a hostile witness and found that she had feigned her failure of recollection. Consequently, her testimony about the shootings was presented through her preliminary hearing testimony and her pretrial interviews with investigators.

On the night of the murders, Judith arrived at the gas station with her brother Augustin in his car, a four-door, silver Honda Accord. "Clumsy" was driving the car; Judith was in the middle of the front seat, and her brother was in the front passenger seat. Gonzales and Soliz were in the backseat. Clumsy was driving because Augustin was too drunk to drive. Judith saw three young African-American men standing in the driveway in front of the gas station. Defendants indicated they knew those men and asked Clumsy to go back so they could talk to them. Clumsy drove the car into the gas station near the telephone where two of the men were now standing and stopped in front of the telephone. Gonzales and Soliz got out through the rear doors of the car and went to talk to the two men. Gonzales stayed closer to the car than Soliz. Judith heard Gonzales and Soliz and the two African-American men all talking loudly. Suddenly, loud gunshots interrupted the conversation. It sounded to her like just one gun. She could see the hand of the shooter and the sparks coming from the gun, but she could not see his face. However, she knew Soliz was the shooter because the shooter used the left side (driver's side) rear door to re-enter the car, and that was the side Soliz used. Gonzales used the right side (passenger side) rear door. Defendants then told Clumsy to "take off."

Deputy Sheriff David Castillo investigated the Skyles and Price murders and interviewed Judith in November of 1996. Her account of the shootings in this interview was substantially the same as her preliminary hearing testimony, with the following additional details: Gonzales had a gun in his possession at the time of the shooting, although he did not fire it. Defendants were arguing near the pay phones with the two African-American men, one of whom she heard say, "No. I didn't mean to do you that way. I'm sorry. I didn't mean to do you that way." Soliz responded with some statements and the gunshots followed. When defendants got back in the car after the shooting, they told her: "You didn't see nothing. You don't know nothing."

(6) Crime Scene Investigation and Autopsy

An investigating officer arrived at 12:48 a.m. and found Skyles and Price lying dead on the ground. Skyles was wearing a long sleeve black and white checkered shirt, red pants, and a red belt with the letter "P." In the opinion of one of the investigating detectives, Skyles's clothing was consistent with that of a "Bloods" gang member. Bloods gang members commonly wore the letter "P," which stands for Piru, a street in the Compton/Willowbrook area of Southeast Los Angeles where the original Bloods gang members lived. Price wore a light blue windbreaker jacket and blue baggy pants. Blue baggy clothing was consistent with membership in the "Crips" gang. At the scene, investigators recovered 11 expended shell casings from a nine-millimeter weapon.

Skyles's autopsy showed nine gunshot wounds, eight of which were nonfatal. The fatal wound was a shot that entered on the left side of his back and travelled through his vital organs. The trajectory of the fatal wound was consistent with Skyles's having been shot from behind while kneeling on the ground with the shooter standing over him. Price had seven gunshot wounds, including two fatal wounds to the head and one to the abdomen.

(7) Taped Conversation Between Gonzales and Augustin Mejorado

On March 29, 1997, Augustin Mejorado visited defendant Gonzales who was incarcerated in the county jail. Authorities secretly recorded their conversation, which was played to the jury at trial. As recounted above, Augustin was the brother of Judith Mejorado. Judith had been a passenger in the car at the gas station and witnessed the shootings of Skyles and Price; she had testified at the preliminary hearing about the shootings and described defendants' involvement. Augustin asked Gonzales what he wanted Augustin to do about Judith, in light of her testimony at the preliminary hearing. Gonzales told Augustin he wanted Judith "to lie," "to change it around," or say that she had not even been present at the shooting.

(8) Defendants' Refusal to Stand in a Lineup

On March 4, 1997, Carol Mateo and Jeremy Robinson, the witnesses who had seen the shooting while driving by the gas station, went to the county jail to view a live lineup. Defendants were asked to stand in the lineup but refused to do so, and consequently neither witness saw a live lineup.

(9) Gonzales's Taped Conversation with Salvador Berber

Salvador Berber was a former member of the Puente gang. He had known defendant Gonzales for about 10 years, defendant Soliz for about eight years, and Augustin Mejorado for about two years. He knew all three as members of the Perth Street clique of the Puente gang. At some time before Berber's arrest for robbery in July 1996, Berber had talked to Gonzales about buying a .38-caliber gun from him. Berber asked Gonzales whether the gun was "dirty," that is, whether it had been used in a crime. Gonzales said that he had two .38-caliber guns, one that had been used to murder a man at the Hillgrove Market, and another that he took from the murdered man. Gonzales mentioned that Soliz had been with him during the robbery murder.

Berber was facing 10 to 17 years of imprisonment for the robbery charge against him because he had a prior robbery conviction. Hoping to receive leniency from the authorities, after his arrest Berber told a detective what Gonzales had said about the Hillgrove Market robbery murder. The detective made no promises to Berber, and Berber was transported to the county jail, where he ran into Gonzales, who was also incarcerated there. In the county jail, Gonzales made similar statements to Berber about the Hillgrove Market robbery murder. Berber again contacted homicide detectives and agreed to wear a "wire" (i.e., an audio recording device) to record his conversation with Gonzales when they were transported together in a sheriff's van.*fn4

On September 25, 1996, Berber, wearing the wire, rode with Gonzales in the sheriff's van from the Los Angeles County jail to the Pomona courthouse. The two prisoners were alone together in the back of the van. The trip lasted about one and a half to two hours, during which time Gonzales talked about the two sets of murders (the Eaton murder and the Skyles and Price murders), as well as matters unrelated to those crimes. An edited version of the conversation that included all of Gonzales's statements about the two sets of murders was played for the jury, and a transcript was provided.*fn5

In the tape, Berber asked Gonzales if he thought Soliz's fingerprints were on the van used for the Hillgrove Market robbery murder. Gonzales replied that the police were trying to get Soliz for the murder of the two African-American teenagers (the "terrones"). Gonzales said that they had used Augustin Mejorado's car for that. Augustin and his sister, Judith, had been sitting in the front seat, and Gonzales, Soliz and "Clumsy" were also in the car. Gonzales described how he ran up to the African-American teenagers (the "tintos") by the telephone pole and shot them. When Berber mentioned that the police might have found Soliz's fingerprints on the telephone pole, Gonzales stated that Soliz "didn't get out" of the car, and that "It was just me -- the only one that got out." Gonzales said that when he got back in the car, he said, "Sorry, Judith, you had to see that." When she asked whether he had killed them, he said, "yeah."

Berber mentioned that he would have bought both of the .38-caliber guns that Gonzales had once offered for sale. Gonzales responded that he had sold both and that one of them was "what we killed the old man with." The other gun "was the old man's cuete [gun]" and had his initials on it, which they scratched off. Gonzales stated, "I done about three -- two niggers and that old man -- about four motherfuckers when I got out this time."*fn6 Gonzales referred to a "meat market" in Hacienda Heights by Turnbull and Seventh. They had worn hoods and sweatshirts during the robbery. They stole between $200 and $300 and took the cash tray. Gonzales said that the old man had tried to reach for his gun, and that Gonzales wrestled with him, grabbed his gun, and started hitting him with the other gun. Gonzales tried to shoot him, but the gun's cylinder had popped up and it would not fire. When the grocer was on the ground, Gonzales managed to shoot him in the face. Richard Alvarez had parked his car a half-block away and they switched from the van to Alvarez's car after the robbery.

Gonzales also mentioned a newspaper story he had read about the robbery murder: "They tried to make him [Lester Eaton] out to be, 'Oh, he's more, he's more than a butcher, more like a' -- motherfucker -- 'more than a father figure, too. He wasn't only a butcher, but a father figure, too.' Says in the paper. I don't want to hear that bullshit. Smoke the motherfucker."

(10) Ballistics Evidence

A firearms examiner for the Los Angeles County Sheriff's Department examined the 11 expended nine-millimeter shell casings found at the Skyles and Price murder scene and determined they were all fired by the same firearm. She then compared those 11 shell casings with the unexpended nine-millimeter bullet found in the getaway van used in the Hillgrove Market robbery murder. She determined that this unexpended nine-millimeter bullet was from the same gun magazine as the 11 shell casings found at the Skyles and Price murder scene.*fn7

The bullets recovered from the body of Lester Eaton all had markings consistent with having been fired from the same gun, the caliber of which would have been a .38 special or a .357 magnum, probably a revolver.

(11) The Murder of Billy Gallegos as Motive for the Murder of Skyles and Price

Gabriel Urena testified about a gang killing that occurred two weeks before the shooting of Skyles and Price that may have instigated the latter shooting. Urena was a passenger in a car driven by Billy Gallegos when Gallegos was shot and killed on March 31, 1996. According to Urena, Gallegos was a member of the Ballista clique of the Puente gang. Gallegos was driving in the City of La Puente when another car pulled up alongside him. Two African-American men were in the car, and they "threw a gang sign" of the letter N, which stands for "Neighborhood Crips." They then fired three shots at Gallegos, who crashed his car into a brick wall and later died of gunshot wounds to the head.

(12) Gang Expert Testimony

Detective Scott Lusk, a homicide detective from the Los Angeles County Sheriff's Department, testified as a gang expert. Lusk had eight years' experience as a police officer interacting with the Puente gang, which he described as being based in the City of La Puente with a primarily Hispanic membership. In Lusk's opinion, the Puente gang's primary purpose was to commit crimes and further its reputation on the streets. Cliques are subgroups within a gang. Among the Puente gang cliques were Perth, Dial and Ballista (named after streets in La Puente). Detective Lusk identified both defendants in court. He had had about 20 to 30 past encounters with defendant Gonzales and about five to 10 past encounters with defendant Soliz. In Lusk's opinion, both defendants were members of the Perth Street clique of the Puente gang and had been so continuously from at least 1990 to the time of the trial, which included the year 1996, when the Eaton and Skyles and Price murders were committed. Both defendants had several tattoos on their bodies indicating their Puente gang membership.

In Lusk's opinion, the Hillgrove robbery murder was a good example of a crime that enhanced both an individual gang member's reputation within the gang, and the gang's reputation within the gang hierarchy. Because this was a particularly violent crime, the person who committed it would be regarded as a "vato loco" (crazy guy), which would enhance his reputation.

In Lusk's opinion, the murders of Skyles and Price were probably a gang retaliation killing motivated by the earlier killing by Crips gang members of Billy Gallegos, a Puente gang member. According to Lusk, whether Skyles and Price had actually been involved in the Gallegos murder, or whether they were actually members of the Crips gang or any street gang was irrelevant. Victims of gang retaliation shootings are targeted for being found within the general area of the rival gang, for being of a certain race, and for wearing a certain style of clothing.

In Lusk's opinion, a gang member who only provided backup for a shooting might brag to another gang member and take credit for being the actual shooter. The gang member providing backup would consider himself part of the crime because he was there to provide aid and to make sure his partner did what he was supposed to do.

2. Defense Case

Neither defendant testified in his own defense. Gonzales rested without presenting any evidence on his behalf.

In an effort to cast doubt on the eyewitness identifications, counsel for Soliz called Sergeant Holmes, who had been an investigating officer in the case from the beginning. Sergeant Holmes testified that photographs of the crime scene, taken from the perspective of the various witnesses to the shooting, had been made several hours after the incident, no later than 4:00 a.m., while it was still dark. Sergeant Holmes further testified that when he prepared the photographic lineup pack that included Soliz's photograph, he selected individuals who had short hair like Soliz for the other photographs in the pack.

B. Penalty Phase

There were two penalty phases. In the first, as to Gonzales the jury returned a verdict of life without the possibility of parole for the murders of Skyles and Price (counts 4 and 5) and hung on penalty as to the murder of Lester Eaton (count 1). As to Soliz, the jury hung on penalty as to all of the murder counts. A new penalty retrial jury was empanelled, which returned a verdict of death for Gonzales for the Eaton murder and a verdict of death for Soliz for the Skyles and Price murders.

1. Prosecution Case

In the penalty retrial, the prosecution presented all the witnesses it had presented in the guilt phase in order to convey the circumstances of the crime to the new penalty jury. In addition, the prosecution presented the following evidence in aggravation.

a. Victim Impact Evidence

Betty Eaton, wife of murder victim Lester Eaton, testified about her husband's role in the community and the devastating effect his murder had on her and her family. Lester often gave credit to his customers who were short on cash, even though he was not repaid in many instances. He sponsored local youth sports teams and the local high school band. Betty Eaton struggled to keep the market going and was constantly tormented by memories of her husband and how he was killed.

b. Other-crimes Evidence as to Gonzales

On March 11, 1990, when Gonzales was 13 years old, he robbed a gas station with his cousin. Gonzales carried a knife and his cousin carried a gun. They took money from the gas station employees as they were preparing to count it at the end of the shift. Gonzales confessed to an officer investigating the crime, and his fingerprints matched those taken from the crime scene.

On January 4, 1998, while Gonzales was incarcerated at the Los Angeles County Men's Central Jail, a search of his cell revealed a sharpened four-inch metal shank inside an envelope addressed to Gonzales. The possession of a shank by an inmate is illegal.

The parties stipulated that Gonzales was convicted on October 5, 1995, of felony possession of a controlled substance.

c. Other-crimes Evidence as to Soliz

On October 16, 1997, in the Men's Central Jail, a deputy sheriff responded to a fire on one of the cellblock rows. The fire was fueled by a burning newspaper and a smoldering mattress in the back of the row, and had spread to four cells. Several inmates, including Soliz (whom the deputy identified in court), threw paper onto the fire to keep it going. When the deputy attempted to extinguish the fire using a fire extinguisher, these same inmates, including Soliz, pelted him with fruit and full milk cartons. Deputies eventually put out the fire with a fire hose.

On two separate occasions in 1998, while Soliz was incarcerated at the Men's Central Jail, sheriff's deputies discovered several razors and altered razors in his single-man cell. These items are contraband in the jail, as razors can be fastened to a toothbrush or pencil and used as a slashing device.

It was stipulated that on November 10, 1992, Soliz was convicted of the felony of the unlawful driving or taking of a vehicle.

2. Defense case a. Gonzales (1) Testimony of Gonzales

Against the advice of counsel, Gonzales testified on his own behalf. At the time he testified (in 1998), he was 22 years old. He had joined the Perth Street clique of the Puente gang when he was 13 or 14 years old and had been shot when he was almost 15. Gonzales had had a happy childhood with his family. Although several of the people he hung around with in the neighborhood belonged to gangs, no one forced him to join a gang.

He testified that he planned only to rob the Hillgrove Market, not to murder anybody there. He entered the market with a gun, walked straight to the back, and demanded money from Lester Eaton. He saw Eaton reach for his gun and the two started wrestling. They were both on the ground, each with a gun, and Gonzales's mind went "blank" and he "kept shooting." Afterwards, Gonzales "felt bad" about what happened. He acknowledged that he appeared to be bragging about the murder in his taped conversation with Salvador Berber, but stated that was because he could not look like a coward in front of Berber, a fellow gang member. He stated that he had not apologized personally to Eaton's family and friends, but that he would like to apologize because he felt bad and it was always on his conscience.

Gonzales testified he was the one who had shot Skyles and Price at the gas station. When he had first seen them as he was driving by, he thought he recognized them, and he wanted to talk to them about the gang-related killing of a friend that had occurred in the previous couple of weeks. Gonzales got out of the car to talk to Skyles and Price, but Soliz remained in the car. An argument started, and Gonzales thought one of them was reaching for a gun, so he shot both of them. He now felt bad about it.

On cross-examination by the prosecutor, Gonzales gave the following testimony: Soliz was with him at the Hillgrove Market robbery murder. Gonzales had a .38-caliber revolver and Soliz had a nine-millimeter handgun. "Clumsy" drove the van, a stolen vehicle abandoned after the robbery. Richard Alvarez waited for them down the street to drive them away after they abandoned the van. Gonzales acknowledged he had taken away Eaton's gun before shooting him. Gonzales maintained, however, that he had fired all the shots in the heat of the moment: "I just went blank and kept shooting." He acknowledged that after the murder he had "part[ied] for a couple of days" but maintained he felt bad about the killing at the time.

When Gonzales approached Skyles and Price at the gas station, he wanted to talk to them about the murder of Billy Gallegos, who had been a friend of Gonzales and a member of the Ballista clique of the Puente gang. The word on the street, which Gonzales had heard, was that Gallegos had been shot by two African-American gang members from the Neighborhood Crips gang. Gonzales shot Skyles and Price with a nine-millimeter gun, the same gun Soliz had carried at the Hillgrove Market robbery and murder but which Soliz had returned to him a couple of weeks before the murder of Skyles and Price.

Counsel for defendant Soliz cross-examined Gonzales further about the Skyles and Price shootings. Gonzales reiterated that he alone got out of the car and shot Skyles and Price with the nine-millimeter gun. When he approached Skyles and Price, Gonzales "knew" they were gang members, and he thought it likely they had heard something about the Billy Gallegos murder, although he did not necessarily think they had been involved. Gonzales took his gun with him for protection. The conversation started out civilly enough with each asking the other where they were from. Then they said, "Fuck Puente," and made a move that made him think they had a gun. He reacted by shooting both of them.

On recross-examination, the prosecutor asked Gonzales why he fired a total of 11 shots at Skyles and Price. Gonzales first stated the trigger of his semiautomatic gun had been rigged, turning it into an automatic weapon, and that one pull produced continuous shots. After the trial court took judicial notice that it was physically impossible to rig a semiautomatic weapon in the manner Gonzales described, Gonzales stated he had kept pulling the trigger, but did not remember how many times. He shot Skyles and Price while they were falling, but not after they hit the ground.

(2) Family and Friend Testimony

Several of Gonzales's family members and a neighbor testified about Gonzales's good side and expressed the hope that he would receive a life sentence.

Gonzales's mother, Edna Gonzales, testified that through junior high school, Gonzales received good grades and was close to her. During junior high school he joined a gang. She visited him every week in jail, and he wrote her letters, including a poem for Mother's Day.

Gonzales's sister, Valerie Gonzales, testified that when Gonzales was young he liked to play football. When he was 14 years old, he joined a gang and was later shot and taken to the hospital. She and her seven-year-old daughter visited him every week in jail and he wrote to them.

Gonzales's sister, Francis Ontiveros, testified that Gonzales would sometimes take care of her daughter, who had Down Syndrome, while Francis was at work. Her daughter loved him, and Francis took her to visit him in jail.

David Gonzales, Jr., Gonzales's nine-year-old nephew, expressed his love for his uncle and described how he frequently talked to him on the phone.

William Marmolejo, one of Gonzales's neighborhood friends, testified that he played sports with Gonzales while they were growing up together. Marmolejo's younger brother encouraged Gonzales to join a gang. Marmolejo believed ...


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