People v. Ozuna

SHINN, P. J.

Appellant Ishmael Gonzales Ozuna was accused of the murder of Adelina Mable Maldonado, with a prior conviction of burglary. He admitted the prior conviction. In the first trial the court declared a mistrial after the jury was unable to agree upon a verdict. In the second trial, before a jury, defendant was found guilty of voluntary manslaughter, a lesser, but necessarily included offense to that charged. He appeals from the judgment.

There were no eyewitnesses to the incident other than the defendant, who did not testify. The People offered into evidence the testimony of Officer James J. Pena. He testified that at approximately 2:30 p.m., on the day of the homicide, he had questioned the defendant, who related the following facts: at approximately midnight, of the night before, he left his brother’s gas station, where he was employed, and met his girl friend “Lena,” the decedent. They drove to a bar where they had several drinks. When they left the bar they went for a drive and returned to Lena’s home at about 4 o’clock in the morning, where they parked in front of her apartment. The officer testified: "He said that when they left the bar she took his gun out of her purse and laid it on the seat. We asked him why she had the gun. He said, ‘I carry this gun for protection, and when we are out, I let her carry it because I do not want to be caught with the gun because I am an ex-convict. ’ ” Thereupon, outside the hearing of the jury, defendant’s attorney cited the use of the testimony that defendant stated he did not want to be caught with the gun because he was an ex-convict as misconduct of the district attorney and moved for a mistrial. The prosecutor said: “It is part of the conversation, your Honor, to explain his conduct.” The court replied: “First, Mr. Fukuto, the mere

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fact that something is part of a conversation does not render the entire conversation admissible. Mr. Fukuto: I understand that. The Court: That is one of the first elementary-rules. It has to be otherwise relevant and material.” Mr. Fukuto argued that the evidence was admissible and not prejudicial. The court asked Mr. Fukuto: “So, in other words, you had information about the fact that the officer was going to so testify.” Mr. Fukuto replied “Certainly.” The court stated “And with that information, I frankly feel that the officer should have been admonished not to include that in the conversation.”