Shortly before 11:00 p.m. on January 27, 2009, Tulare County deputy sheriffs and Dinuba police officers responded to a 911 call reporting a gunshot at the home of Roberto Alvarez, located just outside the Dinuba city limits. They found Roberto lying in the master bedroom. He had been shot in the head but was still alive. The bedroom appeared to have been ransacked, with drawers open and clothes everywhere. The officers found marijuana plants and several different types of ammunition.
In the living room, a large flat-screen television had been moved from an entertainment stand and was unplugged. Three women were also present: Roberto’s live-in girlfriend Luz, his sister Maria, and Mayra, the girlfriend of Roberto’s brother Alvaro. Roberto later died from his gunshot wound.
The house was set up to grow marijuana. There was little personal property in the house, and officers found 484 marijuana plants, over 36 pounds of processed marijuana, more than four pounds of marijuana seeds, and high-intensity grow lights. One room also appeared to be used to manufacture methamphetamine.
In 2006, Roberto, his brother Alvaro, and their sister Erica had been arrested for crimes related to marijuana cultivation, and over $750,000 in cash and many marijuana plants had been seized. At the time of Roberto’s murder, Gonzalez was Erica’s boyfriend, and Gonzalez and Erica lived together in a house in Merced with Erica’s daughter and mother and Erica’s siblings.
Gonzalez was charged in count 1 with murder (Pen. Code,1 § 187, subd. (a)), with the special circumstance of lying in wait (§ 190.2, subd. (a)(15)), and it was alleged the murder was committed during the commission of the crimes of burglary and robbery (§ 190.2, subd. (a)(17)(A) & (G)). In count 2, he was charged with first degree residential burglary (§ 459) and in count 3 with attempted second degree robbery (§§ 664, 211). Firearm special allegations (§ 12022.53, subds. (b)-(d)) were alleged with respect to each count. Before trial began, the court set aside the special circumstance of lying in wait on count 1.
A jury trial began on November 9, 2009. The prosecution’s case primarily relied on the eyewitness testimony of Luis, Roberto’s brother, and cell phone records showing that Gonzalez’s phone had traveled from Merced (where Gonzalez lived) to Dinuba (where Roberto lived and was shot) around the time of the shooting.
At trial, Luis testified with the assistance of an interpreter. Luis came to the United States from Mexico in December 2008 and stayed at his brother Roberto’s house in Dinuba with Roberto and his girlfriend, Luz. Luis helped Roberto take care of the marijuana plants. At the time of his testimony, Luis was serving a prison sentence for drug offenses related to the marijuana found in Roberto’s house. Luis knew that Gonzalez worked two jobs and spent Christmas at Gonzalez’s house in Merced.
On January 27, 2009, Roberto, Luis, and Alvaro drove from Dinuba to buy a rooster. Luis was not familiar with the geography of the United States and did not know where they went to get it, but stated they drove for “a good while.” Police later determined that the rooster (which they found at the crime scene) had come from Fontana, California.
On the ride home, Roberto received a call from his girlfriend Luz, who told him that his aunt wanted to talk to him. Roberto’s aunt, uncle, and sister Maria visited Roberto’s house that day. They told Luz they were looking for Roberto. Luz called Roberto and handed the phone to his aunt, and she told Roberto that they had come from Washington State to talk to him.
When Luis and Roberto returned to Roberto’s house, it was dark. Gonzalez and a man and woman Luis did not recognize were already present. Luis overheard Roberto and Gonzalez talking about money and heard Roberto say that “he never expected him to do this to him.” Roberto and Gonzalez walked outside, then Roberto went back in the house, and Gonzalez remained outside. While he was in the hallway on the way to the bathroom, Luis saw the woman walk quickly out of Roberto’s bedroom. She did not face Luis and he did not know who she was. Roberto went into his bedroom.
Luis saw Gonzalez come into the house, walk to Roberto’s bedroom, and shoot Roberto. Luis thought that Gonzalez was going to kill him too. Luis noticed that Roberto’s bedroom looked as though it had been searched. Also, Roberto usually kept various firearms hanging on the living room wall—two shotguns, a handgun, a rifle with a scope—but Luis noticed they were missing.
Luis testified that he was panic-stricken and did not know what to do. He did not call 911 or seek medical help for Roberto. He took the keys to Roberto’s car and drove toward Walmart to look for Luz. He wanted to tell her what had happened and ask what they should do. On the way, Luis saw her car and honked at her. Luz pulled over and they met in a parking lot. Maria (Roberto and Luis’s sister) and Mayra (Alvaro’s girlfriend) were with Luz. Luis told them that Gonzalez had killed Roberto.
Luz took Luis to Mayra and Alvaro’s house, and the police found him there the next day. The police questioned Luis. At first he denied knowing Roberto and made many conflicting statements. Eventually, Luis broke down and cried and told the police what he had seen. Luis did not want to tell the police what had happened “because of [his] fear that something might happen to [his] family, since they were staying over there at the other house,” that is, Erica and other family members lived in the house in Merced with Gonzalez.
A detective with training in cellular telephone tracking testified about calls made and received on January 27, 2009, by Gonzalez’s cell phone. The detective obtained records for Gonzalez’s cell phone number, which included the cell phone towers used on the night of the shooting. The detective plotted the towers on a map, showing that Gonzalez’s cell phone traveled roughly south along State Route 99 from Merced to Dinuba. He indicated that a call at 8:33 p.m. hit off a cell phone tower in Le Grand (between Merced and Fresno). Later, a call at 9:16 p.m. hit off a tower in Fresno. Then, a call at 9:48 p.m. hit off a tower north of Dinuba within three miles of Roberto’s house. Finally, a call at 10:19 p.m. hit off a tower southwest of Roberto’s house.
The police never located Alvaro or questioned him. Maria also disappeared after the shooting and did not testify. Mayra and Luz gave conflicting accounts of how they met with Luis and learned about Roberto on the night he was shot. For example, Luis testified that he saw Mayra, Luz, and Maria together in a car while he was driving by himself toward Walmart. Luis said that he did not know where Alvaro and Mayra lived; however, Mayra said that Luis went to her house and told her that Roberto had been shot. According to Mayra, she called Maria, and then Mayra and Luis drove to a parking lot to meet with Luz and Maria.
In conflict with Luis and Mayra’s versions of events, Luz testified that she (Luz) and Maria went to a parking lot and met with Luis, Mayra, and Alvaro. Luz also stated that, before they went to the parking lot, Maria received a phone call and told Luz that “el gordo killed him,” which Luz understood to mean that Gonzalez had killed Roberto. According to Luz, after the parking lot meeting, Maria and Mayra went to Roberto’s house, and Luz went with Alvaro and Luis to Alvaro’s house.
Evidence was presented that grow lights, fans, and Mylar similar to the equipment used to grow marijuana at Roberto’s house were found in a search of the Merced house where Gonzalez lived with Erica and her family. No marijuana, however, was found. Nine or 10 cell phones were seized from the Merced house.
A criminalist testified about gunshot residue swabs taken in the investigation. He stated that a person who discharges a firearm or who is in close proximity to a firearm when it is discharged might receive gunshot particles. The criminalist analyzed swabs taken from Luz, Mayra, Maria, Roberto, and Gonzalez and found no gunshot residue particles. A swab also was collected from a black Nissan Altima found at the Merced house, and particles were found on the steering wheel and driver’s door. This car was usually driven by Erica’s brother.
At the close of the prosecution’s case, the court dismissed the robbery charge. The jury found Gonzalez guilty of murder with the special circumstance that he was engaged in the commission of a burglary, and of first degree burglary. With respect to both counts, the jury concluded that Gonzalez had personally used a firearm. Gonzalez was sentenced to life imprisonment without the possibility of parole, plus 25 years to life on count 1. The sentence on count 2 was stayed pursuant to section 654. The court ordered that Gonzalez “[h]ave no further contact with victim’s family, in person, in writing, by telephone or by Internet.”