California Court of Appeals, Second District, Eighth Division
Los Angeles County Super. Ct. No. GA070794
APPEAL from orders of the Superior Court of Los Angeles County. Kathleen Kennedy, Judge.
[Copyrighted Material Omitted]
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Jackie Lacey, District Attorney, Phyllis Asayama and Ann H. Park, Deputy District Attorneys, for Plaintiff and Appellant.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Respondent.
In November 1998, Donald Schubert was murdered. In April 2012, a jury convicted defendant Raul Pedroza of the first degree murder of Schubert and conspiracy to commit the murder. The jury also found true gang enhancement allegations. The prosecution’s case against defendant relied in large part on the testimony of an accomplice. Following the guilty verdict, the trial court granted defendant’s motion for a new trial, explaining the evidence corroborating the testimony of the accomplice was insufficient. Subsequently, the trial court granted defendant’s motion for dismissal, concluding double jeopardy barred retrial.
On appeal, the People contend the trial court erred in concluding the evidence corroborating the accomplice’s testimony was insufficient, and accordingly the trial court erred in granting the new trial motion. The People further contend the trial court erred in dismissing the case; the People assert the court reweighed the evidence and granted the motion for new trial under
Penal Code section 1181, rather than issuing an acquittal, thus double jeopardy did not bar retrial.
We affirm the trial court orders.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
A. Nonaccomplice Testimony
On the evening before Thanksgiving in November 1998, Margaret O. was at her apartment in Rosemead with her boyfriend, Donald Schubert, and other family members, including her daughter, Raquel S. Some time after 10:00 or 10:30 p.m., there was a knock on the door. After Raquel was unable to see anyone through the peephole, Schubert opened the door. Schubert stepped outside and spoke with someone. A minute or two later, Schubert reentered the apartment with Daniel Ahumada. Ahumada waited while Schubert put on a shirt, socks, and shoes, then the two men left. Neither Margaret nor Raquel saw any weapons on Ahumada. After the two men left, Margaret and Raquel heard multiple gunshots. Margaret and Raquel looked out a bedroom window. They saw one or two people running up a dirt hill to a brick wall, but could not recognize them. Margaret and Raquel then left the apartment and found Schubert’s body lying in a carport area. Schubert had suffered “multiple injuries.” According to a police officer who responded to a 10:50 p.m. radio call to report to the scene, the top portion of Schubert’s skull was missing; blood and brain matter could be seen behind his head.
At some point that same night, after 11:00 p.m., Lisa G. heard loud banging noises from the garage at her townhome in Ontario. Lisa lived with Joseph Garivay, who later became her husband. Garivay, defendant, and Ahumada were all members of the Las Lomas gang. When Lisa heard the banging noises, she realized Garivay was not in bed next to her. At some point between 2:00 and 3:00 a.m., Lisa went downstairs to the garage. She heard men talking. When she entered the garage she saw Garivay, defendant, Ahumada, and another Las Lomas gang member, Javier Renteria. The men were drinking and the conversation seemed “upbeat.” Lisa did not see any weapons in the garage. Later that day, Lisa gave Ahumada a ride to West Covina. Ahumada had something with him that looked like a gun. Lisa heard Ahumada talking on his cell phone during the ride. Ahumada said something to the effect of: “I remember blasting him and seeing beer come of out of his stomach, ” and that he had blasted “Pato, ” Schubert’s gang moniker.
According to a gang expert, Schubert was also a member of the Las Lomas gang. The gang had over 400 members. In the late 1990s, there were frequent “in-house murders” in the Las Lomas gang, in which a gang member would murder another member of the gang.
B. Accomplice Testimony
Ahumada testified at trial. He, defendant, Schubert, Garivay, and Renteria were all members of the Las Lomas gang. According to Ahumada, the night before Thanksgiving in November 1998, he was selling rock cocaine at the apartment complex where Schubert lived. He encountered defendant and Garivay and spoke with them. Garivay asked Ahumada to go to Schubert’s house and call him outside. Garivay said Schubert owed him money and he wanted to be repaid but Schubert had been avoiding him. Ahumada agreed to bring Schubert outside. Garivay told Ahumada to tell Schubert that Ahumada needed help with his car.
Ahumada went to Schubert’s apartment and knocked on the door. Schubert’s girlfriend’s daughter opened the door; Ahumada asked for Schubert. When Schubert came to the door, Ahumada asked for help with his car. Schubert put on his shoes and left the apartment with Ahumada. Ahumada led Schubert to the carport area. As they were walking, Ahumada heard two shots. Ahumada crouched and ran. When he looked over his shoulder he saw defendant standing with a revolver pointed toward Schubert. Garivay walked to Schubert and shot him twice more with a shotgun. Garivay yelled, “Let’s go.” The three men ran up a nearby hill and jumped over a wall. A car was waiting. Renteria was in the driver’s seat. The men drove to Garivay’s house, which was around 20 minutes away. Ahumada testified he stayed at the house for two days. He denied having a cell phone conversation while Lisa drove him “home, ” and denied saying that he shot or killed Schubert, or that he saw beer coming out of him. Ahumada denied having a gun with him; instead he testified defendant and Renteria left the Garivay house with guns.
At the time of trial, Ahumada was serving a 15-years-to-life sentence. He had pleaded guilty and was convicted as an aider and abettor in the murder.
II. Defense Evidence
On cross-examination, Lisa testified she went to bed around 11:00 p.m. the night before Thanksgiving, and Garivay was in bed with her. She testified that between 10:00 p.m. and 11:00 p.m. that night, Garivay was with her in Ontario. She also testified she was awakened by a noise between 2:00 and 3:00 a.m. the next morning, but she did not get out of bed immediately; she returned to sleep and, only hours later, went downstairs and saw the group of
men. She admitted she had previously testified that between 2:00 and 3:00 a.m. she heard a telephone call and a loud knocking noise, then Garivay went downstairs; she did not go downstairs until several hours later. She also admitted that she told police in an interview that she first went downstairs sometime between 7:00 a.m. and noon. Lisa admitted that at 2:00 or 3:00 a.m., when she heard the banging noise, she did not know who was in the house. She also testified that Ahumada did not stay at her house for two days; instead she drove him to West Covina the morning of Thanksgiving.
On cross-examination, Ahumada admitted that two years before the murder, he and Schubert had a fistfight. Ahumada asserted the dispute was between Schubert and Ahumada’s “homeboy”; Ahumada stepped into the dispute on his friend’s behalf and Schubert punched him.
Police recovered shoe prints from the hill near the apartment complex where Schubert was killed. None of the prints matched two pairs of shoes taken from defendant’s home.
III. Relevant Procedural History
After the prosecution rested its case, defendant moved for acquittal pursuant to section 1118.1. Defendant argued there was no evidence connecting him to the conspiracy, or of him participating in a homicide, or possessing a firearm, unless one believed Ahumada. Defendant then argued Ahumada’s accomplice testimony had to be corroborated, and it had not been. The trial court denied the motion.
The jury found defendant guilty of first degree murder (§ 187, subd. (a)) and conspiracy to commit murder (§ 182, subd. (a)(1)). With respect to both crimes, the jury found true allegations that a principal personally used and discharged a firearm and gang enhancements. (§§ 12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1).) The jury found defendant not guilty of possession of a firearm by a felon.
Defendant moved for a new trial, citing section 1181 as authority. In the motion, defendant argued there was insufficient evidence to corroborate Ahumada’s testimony, and, excluding Ahumada’s testimony, the evidence was insufficient to establish defendant’s participation in Schubert’s murder. The People opposed the motion, arguing there was legally sufficient corroboration of Ahumada’s testimony. In reply, defendant again argued there was no legally sufficient corroboration of Ahumada’s testimony, thus a new trial was required; defendant also urged the court had the discretion to independently reweigh the credibility of trial witnesses, and Ahumada’s testimony could not be believed. The court granted the motion for a new trial, noting: “I have
never granted a motion for new trial in 24 years on the bench. However, I do feel that in looking at everything, that the corroboration was insufficient.” The court set a date for the parties to return to court.
Defendant then filed a motion to dismiss the case based on double jeopardy. Defendant argued that since the trial court ruled the evidence at the first trial was insufficient as a matter of law to corroborate Ahumada’s testimony, under Hudson v. Louisiana (1981) 450 U.S. 40 [67 L.Ed.2d 30, 101 S.Ct. 970] (Hudson), and related cases, double jeopardy barred retrial. The People responded that the court could not acquit defendant pursuant to section 1181. Instead, the People asserted the court sat as a thirteenth juror when ruling on the new trial motion, and, as a result, retrial was permitted. The trial court granted the motion to dismiss. The court explained: “[I]n this case I do feel there was insufficient corroboration as a matter of law. [¶] The court did not make its ruling setting it as the 13th juror. I think the United States Supreme ...