STATEMENT OF THE CASE
Appellant Guy Jurado was found amenable to prosecution as an adult (Welf. & Inst. Code, § 707) and, by information, was charged with Dominic Jurado of murdering Ronald Hawkins (Pen. Code, § 187), of robbing Lovella Weibel (Pen. Code, § 211), and of burglarizing the residence of Burt McBride (Pen. Code, § 459). At his arraignment, appellant pled not guilty to all charges and his case was severed from that of Dominic Jurado.
On July 7, 1978, appellant filed a notice of motion for change of venue, complete with points and authorities, copies of the allegedly
A jury trial on the murder charge was held and appellant was found guilty of first degree murder. Subsequently, appellant was rearraigned on the robbery count and voluntarily entered a plea of nolo contendere which was accepted by the court. Appellant was sentenced to life imprisonment on the murder count and to the maximum four-year term on the robbery count. He filed a timely notice of appeal from the murder conviction.
STATEMENT OF THE FACTS
On the evening of Saturday, March 11, 1978, appellant and his brother Dominic Jurado visited Lonnie Slaughter in his cabin.
In the early afternoon on March 12, 1978, service station attendant Ronald Hawkins was fatally shot at the Dos Palos Y Chevron service station. At about 2 p.m., appellant and Dominic bought a bag of Dorito chips and some other grocery items at Don's Liquors, which was located near the Chevron station. Around 2:15 p.m., Serrino Enriquez, Jr., operator of an Exxon service station behind the victim's place of employment, observed appellant's vehicle driving through his station. About the same time, Joanna Danison entered the Chevron station as the Jurado vehicle was speeding away. She indicated that either appellant or Dominic was the driver.
Subsequent investigation by law enforcement officials revealed the presence of a credit invoice and credit card inside the Chevron service
Prosecution testimony established that Hawkins was killed by an aortal laceration attributable to a single bullet.
Between 3 and 5 p.m. on March 12, appellant and Dominic visited James Cortez at his house. Cortez testified that appellant and Dominic wanted to sell a .22 caliber pistol and a .32 caliber pistol. The three men drove to Misael Trevino's house for purposes of attempting to sell the two guns. The group then tested the pistols in the country; Trevino stated at trial that appellant was trying to sell the guns.
At 7:30 p.m., a Merced Police Department dispatcher received a phone call from a "David Garcia," who desired to know if any warrants had been issued for the arrest of Guy Jurado. Slaughter and appellant returned to Slaughter's residence at approximately 11:30 p.m. Upon their return, appellant got out of Slaughter's car and attempted to leave. A police detective asked for his name, and appellant identified himself as "David Garcia." Appellant was placed under arrest by the police and Slaughter gave a statement coinciding generally with his trial testimony. Appellant even admitted that he identified himself as "David Garcia" in his call to the police dispatcher.
Following an interview with a police detective on March 14, 1978, appellant took officers to the Cortez residence. The same two pistols identified by Trevino were found wrapped in a towel. Appellant told the detective that Dominic had hidden the guns after they jointly went inside the garage area.
The .22 caliber bullet was recovered from Hawkins' body. On the Friday following the shooting, an attendant found a .22 shell casing near one of the pumps at the Chevron station. A state ballistics expert testified that the short shell casing conclusively matched with the .22 caliber weapon which appellant attempted to sell to Trevino.
Appellant's principal defense was to depict his brother Dominic as the perpetrator of the shooting, independent of his complicity in the robbery. Appellant took the stand on his own behalf and testified to the following version of the facts.
Initially, he stated that Slaughter and Dominic had stolen the.22 caliber pistol during the commission of a residential burglary. Appellant indicated that the two men were bragging about the weapon, and that Dominic had the gun with him while at Slaughter's cabin on the evening of March 11.
Appellant acknowledged that he was at the Chevron station when Ronald Hawkins was shot. He testified that he left Merced with his brother between 12 and 1 o'clock on Sunday afternoon in order to visit his godparents in Los Banos. Appellant was driving his car at the time. He exited the freeway at the Dos Palos Y and went to a liquor store, where Dominic purchased some food. They drove back under the freeway
Appellant further testified that he pulled to the front pumps of the Chevron station, under the mistaken impression that the gasoline there was cheaper than at the self-service pumps. Appellant then went to the restroom. On his return, he unsuccessfully tried to phone his godparents, but the call was disconnected. From the phone booth, he said he saw his brother looking under the hood while the attendant was putting gas in the car. Appellant said that he then returned to the car and got in the driver's seat as Dominic walked to the rear of the car. Appellant heard a loud noise and, as he looked around, he saw the attendant grab his chest and fall. Appellant said that Dominic had a gun at his side, even though he did not know Dominic had a gun with him until this point in time.
Dominic jumped in the driver's seat of the car and sped out of the station. As the car left the station, it almost collided with a van. Appellant slipped to the floor of the car, but he could see the top portion of the van as it passed. As they drove back to Merced, appellant swore at Dominic about the shooting. Appellant's testimony at trial was consistent with a statement made to a police detective on March 14.
Appellant has asked us to take judicial notice of three items; we postponed ruling on this matter pending oral arguments on the propriety of such a request.
Respondent opposes appellant's request on the following grounds: (1) the items were not presented before the superior court; (2) no reasonable explanation for such an omission is offered by appellant; and (3) the request for judicial notice does not further a more sound administration of justice. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493 [138 Cal.Rptr. 828].)
DISCUSSION OF ISSUES
I. Did the trial court err in denying appellant's motion for a change of venue because Merced County had been saturated with adverse pretrial publicity which had a reasonable likelihood of prejudicing the selected jurors?
Before examining the pertinent factors set forth above, it is important to sketch the chronological sequence of the pretrial publicity. The news coverage connected with the Hawkins murder was reported in the Merced Sun Star. The following is the list of newspaper articles relied upon by appellant:
March 12, 1978 Homicide of Ronald Hawkins; arrest of Guy and Dominic Jurado. March 13, 1978 "Local Duo Held in Death Probe" (reports that Dominic Jurado and unidentified juvenile arrested for murder of Hawkins). March 14, 1978 "Investigation of DP [Dos Palos] Slaying Is Continuing" (reports that Dominic and a 16-year-old boy from Merced were arrested). March 17, 1978 "Murder Case To Consider Youth's Age" (reports that a Merced youth was arrested in connection with the Hawkins shooting).
March 27, 1978 "Merced Youth Will Be Tried as Adult" (reports that Guy Jurado will be tried on a murder charge along with his brother Dominic). April 6, 1978 "Three Jail Inmates Here [including Hector Gallegos and Dominic Jurado] Make Successful Escape" (last sentence of article says "The younger Jurado brother, Guy, remains in custody"). April 6, 1978 "Missing Prisoners [including Gallegos and Dominic Jurado] Seen as Dangerous." April 7, 1978 "One Of Three Escapees [Dominic Jurado] Gives Up in Bakersfield." April 8, 1978 "Second Merced Escapee [Jerry Jensen] Caught in Bakersfield." April 10, 1978 "Escapee [Dominic Jurado] Sent To Mariposa For Protection." April 12, 1978 "Jail Security Examined" (Dominic/Gallegos mentioned). April 13, 1978 "Innocent Pleas By Escape Duo [Dominic Jurado and Jerry Jensen]." April 17, 1978 "Innocent Plea Is Entered in Homicide Case [by Dominic Jurado]" (mentions that Guy accused of Hawkins killing). April 18, 1978 "Fugitive [Hector Gallegos] Thought To Be in Mexico." June 27, 1978 "Jury Selection Under Way [in Dominic's trial]" (mentions that Guy was arrested with Dominic and that his trial was pending). June 30, 1978 "Tape Recording OK'd As Homicide Evidence [in Dominic's trial]" (Guy mentioned several times and references made to a recorded conversation between Jurado and a police detective which "pointed the finger at Dominic's younger brother, Guy Jurado."). July 6, 1978 "Dominic Jurado Is Found to Be Guilty" (refers to Guy's trial; refers to taped interview between Dominic and police detective mentioned previously). July 10, 1978 Appellant's change-of-venue motion denied by superior court. July 11, 1978 "Murder Trial Venue Change Nixed [appellant's trial]." 12
With the above sequence of pretrial publicity as background, it is now pertinent to examine the factors indicating a reasonable likelihood of unfairness.
The Nature and Gravity of the Offense.
The Size of the Community.
Appellant then points to the fact that Merced County is fairly small in size, containing a population of 122,600 on July 1, 1977.
The following cases are representative of those in which venue changes have been granted: Frazier v. Superior Court, supra, 5 Cal.3d at page 293, footnote 5 (Santa Cruz County, population of 123,790; court noted that it was the state's smallest county in area and that the local newspaper characterized it as "tiny"); Fain v. Superior Court, supra, 2 Cal.3d at page 52, footnote 1, and Griffin v. Superior Court, supra, 26 Cal. App.3d at page 681 (Stanislaus County, population of about 184,600); Maine v. Superior Court, supra, 68 Cal.2d at page 385, footnote 10 (Mendocino County, population of 51,200); Corona v. Superior Court, supra, 24 Cal. App.3d at page 876 (Sutter County, population of 42,000). Contradistinguished, several opinions have indicated that certain communities were not so small as to vitiate an unbiased selection of jurors. (See, e.g., People v. Caldwell, supra, 102 Cal. App.3d at p. 471 (Contra Costa County, population in excess of 611,800);
As indicated by Griffin, we have deemed a county with a population in excess of 180,000 "as not being of such size as to disregard or be indifferent to a barrage of publicity detailing a serious crime." (Griffin v. Superior Court, supra, 26 Cal. App.3d at pp. 680-681.) Although Merced County is located near the large metropolitan area of Fresno, its size and close-knit nature would appear to be a factor supporting a change of venue. This consideration, however, is not overly compelling in the instant case, since the Merced Sun Star only had a daily circulation
Defendant's Status in the Community.
Although appellant was apparently a resident of Merced County, there is no indication that he was a the member of an unusual subcultural or unpopular group. (Frazier v. Superior Court, supra, 5 Cal.3d at pp. 290, 293-294 (defendant was a "hippie" and county felt deep-seated antagonism toward such individuals); People v. McKee (1968) 265 Cal.App.2d 53, 59 [71 Cal.Rptr. 26] (defendant was associated with Hell's Angels group).) Instead, appellant appears to have been relatively anonymous. (See People v. Caldwell, supra, 102 Cal. App.3d at p. 471.)
In order to rebut a finding of his anonymity, appellant points to publicity which allegedly established an implied association between himself and Hector Gallegos, a Mexican Mafia member.
Victim's Popularity and Prominence.
The victim was a resident of Dos Palos. Nonetheless, outside of the fact he was awarded a Bronze Star in the Vietnam war, the record is devoid of any indication that appellant was prominent in the community. (Cf. Frazier v. Superior Court, supra, 5 Cal.3d at p. 295 ("prominent" doctor and his family); People v. Tidwell, supra, 3 Cal.3d at p. 65 (members of one of the oldest and "well-known" families in
Appellant tries to heighten the victim's prominence by alleging that 24 percent of jury veniremen either knew the victim, trial witnesses, or attorneys associated with the case. An examination of the voir dire reveals that only two veniremen actually were acquainted with the victim. These prospective jurors conceded that they would be biased and both were dismissed for cause. Thus, contrary to appellant's assertion, familiarity by two veniremen does not indicate victim prominence in the community.
Nature and Extent of News Coverage.
The record does reveal an extensive amount of pretrial publicity relating to the trials of both Dominic and appellant. Nonetheless, only two articles before April 17, 1978, mentioned appellant's arrest or upcoming trial.
Whether Case Was Embroiled in Local Politics.
Appellant next argues that the case became embroiled in local politics because, during the pendency of his trial, there were contested elections in Merced County for sheriff, district attorney, and judge. This contention must be rejected, since appellant cannot show that the elections had a demonstrable effect on the community or trial participants. (Cf. People v. Tidwell, supra, 3 Cal.3d at p. 71 ("news items indicate that there was considerable political debate concerning the fiscal impact of the trial"); Maine v. Superior Court, supra, 68 Cal.2d at p. 387 (campaign election for judgeship between district attorney and counsel for one of the defendants "might [have] inadvertently intrude[d] during the course of a proceeding in which they [were] also trial adversaries.").)
Extent of Jurors' Exposure to Pretrial Publicity.
As noted earlier, appellate review is retrospective on appeal from a judgment of conviction and the fact that numerous jurors do not have strong recollection of news media coverage demonstrates the unlikelihood of undue publicity. (See People v. Hathcock (1973) 8 Cal.3d 599, 619-620 [105 Cal.Rptr. 540, 504 P.2d 476], criticized on another point in People v. Green (1980) 27 Cal.3d 1, 33, fn. 16 [164 Cal.Rptr. 1, 609 P.2d 468]); People v. Salas, supra, 7 Cal.3d at pp. 818-819; People v. Caldwell, supra, 102 Cal. App.3d at p. 472.) An examination of the voir dire proceeding negates appellant's claim of bias from the substantial news coverage described previously.
Similar cases have held that the voir dire transcript rebuts any claim that jurors were actually exposed to pretrial publicity. (See People v. Salas, supra, 7 Cal.3d at pp. 818-819 (eight jurors did not recall reading or hearing about the case; recollections of remaining four were negligible); People v. Caldwell, supra, 102 Cal. App.3d at p. 472 (ten jurors had no recollections of publicity exposure; only two remembered reading or hearing about the case although "they could recall no details").) As in Salas and Caldwell, the extent of jurors' exposure to pretrial publicity in this case was either nonexistent or very negligible. Since this lack of significant exposure is an important factor negating prejudice in an appeal from a judgment of conviction, it is highly unlikely that the substantial publicity in Merced County produced a biased jury.
II. Did the trial court err in refusing to instruct jurors that appellant was guilty under a second degree felony-murder theory?
For the foregoing reasons, appellant's claim of error from the failure to read second degree felony-murder instructions to jurors must be rejected.
III. Was appellant's requested reading of CALJIC No. 8.32 tantamount to a request that the court instruct jurors that the underlying robbery for first degree felony murder must be proven beyond a reasonable doubt?
It is settled that, in a first degree felony murder case, the defendant is entitled, upon request, to a specific instruction directing attention to the necessity of proving the underlying felony beyond a reasonable doubt. (See People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847]; People v. Whitehorn (1963) 60 Cal.2d 256, 264 [32 Cal.Rptr. 199, 383 P.2d 783].) Although defense counsel did ask the court to read CALJIC No. 8.32, this instruction related to second degree felony murder; there was no specific request that the court below proffer an additional instruction on the standard of proof relating to an underlying felony in this case, which involved first degree murder.
In summary, appellant's contention about first degree felony-murder instructions is flawed, since he never requested the specific instruction from the trial court. Moreover, even if his request for a second degree felony-murder instruction could be interpreted as one for first degree felony murder, its omission did not cause prejudice in this case.
IV. Did the trial court violate a sua sponte duty to proffer instructions about accomplice testimony when the accomplice's statements were introduced by an independent witness (i.e., statements of a hearsay declarant)?
During cross-examination of a police detective, the following exchange occurred between the detective and appellant's trial counsel: "Q. Dominic Jurado made several statements to you which were false, didn't he?
"A. He made statements to me that Guy Jurado was the one that was involved in it."
The testimony was proffered by a police detective who was clearly not an accomplice to the murder offense. Although the statements of declarant Dominic (an accomplice) may have constituted inadmissible hearsay testimony, appellant cannot complain at this stage because he elicited the officer's testimony and did not attempt to strike the inadmissible segment. Because the testifying police officer was not an accomplice and appellant did not object to the admission of the hearsay testimony, there is no merit to his sua sponte contention on appeal.
V. Was it erroneous to admonish jurors regarding false or deliberately misleading statements by appellant because (a) there was no factual basis for giving the instruction or because (b) the instruction impermissibly draws undue juror attention to appellant's trial testimony?
First, he contends that there was no factual basis in the record for giving CALJIC No. 2.03. In People v. Rubio (1977) 71 Cal.App.3d 757, 769 [139 Cal.Rptr. 750], disapproved on another ground in People v. Freeman (1978) 22 Cal.3d 434, 438-439 [149 Cal.Rptr. 396, 584 P.2d 533], the court held that when a defendant testifies in a manner consistent with his pretrial statements to the police but inconsistent with the prosecution's case at trial, CALJIC No. 2.03 should not be given because in that event it necessarily "casts specific doubt on a defendant's credibility as a witness and singles out defendant's testimony as subject to more particular scrutiny than that attached to prosecution witnesses." (Accord People v. Green, supra, 27 Cal.3d at pp. 40-41.) As noted by another case, "... only where the false statement or testimony is intentional rather than merely mistaken and where such statement or testimony suggests that defendant has no true exculpatory explanation can it be considered as an admission of guilt." (People v. Wayne (1953) 41 Cal.2d 814, 823 [264 P.2d 547], overruled on another ground in People v. Snyder (1958) 50 Cal.2d 190, 197 [324 P.2d 1].) In the instant case, there is evidence that appellant uttered intentionally false statements. He admitted lying to officers when he was first interviewed about the location of the murder weapon, about his name, and about the motivation behind using the pseudonym "David Garcia" to a Merced police dispatcher. Since he admitted that his pretrial statements to police were inconsistent, this case does not involve the concern dealt with by the Rubio court. Moreover, because appellant also admitted that he lied to officers, there was a factual basis in the record which justified a reading of CALJIC No. 2.03. (Accord People v. Vasquez (1979) 94 Cal.App.3d 42, 45 [156 Cal.Rptr. 235]; People v. Gutierrez (1978) 80 Cal.App.3d 829, 836 [145 Cal.Rptr. 823].)
Second, appellant claims error in reading the instruction because it impermissibly singles out his testimony for juror scrutiny. This argument must be rejected. Initially, our Supreme Court has expressed that false statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. (See People v. Green, supra, 27 Cal.3d at p. 41; People v. Showers (1968)
Because false statements can be used to infer consciousness of guilt and because the instruction is narrowly drafted, it was not erroneous to read CALJIC No. 2.03 to jurors in light of evidence showing that appellant made false statements to police officers.
The judgment is affirmed.
Franson, Acting P.J., and Hanson (P.D.), J., concurred.