P. v. Alcaraz
Filed 4/3/13 P. v. Alcaraz CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN HECTOR ALCARAZ,
Defendant and Appellant.
B236508
(Los Angeles
County
Super. Ct.
No. PA057694)
APPEAL from
a judgment of the Superior Court
of
County, Daniel B. Feldstern, Judge. Remanded and modified in part with
directions, otherwise affirmed.
Patricia A.
Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys
General, for Plaintiff and Respondent.
>
I. INTRODUCTION
A jury
convicted Steven Hector Alcaraz (defendant) of
occupied vehicle (§ 246) (count 5). The
jury acquitted defendant of three counts of
(a)) (counts 2, 3, 4). The jury found as
to counts 1 and 5: a principal
personally and intentionally discharged a firearm proximately causing death (§
12022.53, subds. (d) & (e)(1)); and the crimes were committed for the
benefit of a criminal street gang (§ 186.22, subd (b)(1)(C)). Defendant was sentenced to 65 years to life
in state prison. This was the third time
defendant was tried for these crimes. We
remand for resentencing as to count 5 and certain other modifications, and
otherwise affirm the judgment.
II. THE EVIDENCE
We view the
evidence in the light most favorable to the verdict. (People
v. Griffin (2004) 33 Cal.4th 1015, 1028; People v. Barnes (1986) 42 Cal.3d 284, 303.) Defendant participated in a gang-related
assault on September 22, 2006. He was
driving in his home neighborhood when he saw a GMC Yukon occupied by Javier Nuno, Jr., his brother,
Fernando Nuno, Javier’s
name="_ftnref2" title="">[2] girlfriend, Janett Ramirez, and their 13-month-old
daughter, Elisa Nuno. Defendant
telephoned his brother, Andrew Alcaraz, and told him the location of the
vehicle. Defendant encouraged his
brother to “go get them†and to “blast them.â€
Andrew Alcaraz and two fellow gang members pursued the Nunos. One of the three repeatedly fired a weapon at
the vehicle occupied by the Nunos.
Fernando was killed.
III. DISCUSSION
A. The False Representation Evidence
An
eyewitness, Jair Gonzalez, implicated defendant in the shooting. Mr. Gonzalez testified at the preliminary
hearing and at trial under immunity. Mr.
Gonzalez was with defendant when defendant encouraged his brother to assault
the occupied vehicle. Detective Terence
Keyzer interviewed defendant extensively and on several occasions in the month
after the assault. Defendant’s story
repeatedly changed. During a telephone
conversation between Detective Keyzer and defendant, who was then in Arizona,
Detective Keyzer told defendant what he had learned from Mr. Gonzalez. Detective Keyzer told defendant Mr. Gonzalez
had taken a lie detector test. That
statement was untrue. Defendant then
offered to also take a lie detector test.
The trial court redacted all references to a lie detector test.
The
pertinent conversation was as follows:
“Detective Keyzer: [Mr. Gonzalez
is] not making it up. I put him on a lie
detector, okay? I put him on - - on the
polygraph. He’s not making it up. [¶]
[Defendant]: Well, you could put
me on one too. [¶] Detective Keyzer: Well, when are you coming down? Let’s do it.
[¶] [Defendant]: Fuck, inaudible. [¶]
Detective Keyzer: Exactly. Listen to me.
[¶] [Defendant]: I can’t just fucking get up and leave. [¶]
Detective Keyzer: Why? You did that in California. [¶]
[Defendant]: Yeah, I don’t have
no way to get - - get back. [¶] Detective Keyzer: Listen to me.
[¶] [Defendant]: I came up here with my mom. [¶]
Detective Keyzer: Listen. [¶]
[Defendant]: Yes.†That conversation was redacted from the
evidence presented to the jury. Defendant
subsequently said, “I mean, fucking, - - I mean, if you guys need me to really
fucking go down there and talk to you guys, I mean, to get myself situated, a lie detector test or whatever . . . I’ll
do it.†The italicized portion of
defendant’s statement was also redacted.
Defendant argues the redactions were error resulting in a violation of
his constitutional rights. He asserts the ruse by Detective Keyzer—that
Mr. Gonzalez took and impliedly passed a lie detector test—should have been
allowed in evidence for the effect it had on the voluntariness and accuracy of
defendant’s subsequent admissions.
There was
no error and no violation of defendant’s constitutional right to present a
defense. Evidence Code section 351.1,
subdivision (a) states: “Notwithstanding
any other provision of law, the results of a polygraph examination, the opinion
of a polygraph examiner, or any reference to an offer to take, failure to take,
or taking of a polygraph examination, shall not be admitted into evidence in
any criminal proceeding . . . unless all parties stipulate to the admission of
such results.†There are no exceptions
to Evidence Code section 351.1. (
610, 663; People v. Samuels (2005) 36
Cal.4th 96, 128; People v. Wilkinson (2004)
33 Cal.4th 821, 845-846.) “The state’s
exclusion of polygraph evidence is adorned with no exceptions, and its
stricture on admission of such evidence has been uniformly enforced by this
court and the Court of Appeal.
[Citations.]†(
p. 663; accord, People v. Samuels, supra,
36 Cal.4th at p. 128; People v.
Wilkinson, supra, 33 Cal.4th at pp. 845-846.) Excluding polygraph evidence under section
351.1 does not violate a defendant’s constitutional right to present a
defense. (People v. Wilkinson, supra, 33 Cal.4th at pp. 848-852;
413.)
Moreover, there is no state-of-mind
exception to Evidence Code section 351.1.
(People v. McKinnon, supra, 52
Cal.4th at pp. 662-664; People v. Lee (2002)
95 Cal.App.4th 772, 790-791.) In
evidence an eyewitness was told he had lied during a polygraph
examination. The evidence was admitted
to explain why the witness subsequently ceased denying knowledge of a murder
and implicated the defendant as the perpetrator. Our Supreme Court held the trial court erred;
there was no state-of-mind exception to Evidence Code section 351.1. (People
v. McKinnon, supra, 52 Cal.4th at pp. 662-664.) In Lee,
the trial court admitted a tape recording of a witness’s polygraph
examination and subsequent interrogation to show its effect on the
witness. Prior to the polygraph test,
the witness denied any knowledge of the crime. Following administration of the test, the
witness changed his story and admitted seeing the defendant shoot the
victim. (People v. Lee, supra, 95 Cal.App.4th at pp. 790-791.) The Court of Appeal for this appellate
district held: “[T]here is no ‘state of
mind’ exception to the ban on polygraph evidence. Unlike hearsay evidence, which is only banned
if it is offered ‘to prove the truth of the matter stated,’ polygraph evidence
‘shall not be admitted into evidence in any criminal proceeding.’ . . . [S]ection 351.1 simply and
unambiguously prohibits the admission of evidence that a person took a
polygraph test.†(People v. Lee, supra, 95 Cal.App.4th at p. 791, fns. omitted.) Here, defendant argues the polygraph test
evidence was admissible to show its effect on him in light of his subsequent
statements to Detective Keyzer. This
case is controlled by the statute as interpreted in McKinnon and Lee. The trial court properly excluded the
evidence.
Even if the trial court erred in
excluding the evidence, the error was harmless under any standard. (See Chapman
v. California (1967) 386 U.S. 18, 24; People
v. Watson (1956) 46 Cal.2d 818, 836; People
v. McKinnon, supra, 52 Cal.4th at p. 665 [harmless under any standard];
p. 792 & fn. 52 [applying Watson].) Mr. Gonzalez, an eyewitness, implicated
defendant in the shootings. Mr.
Gonzalez’s testimony was corroborated in large part by defendant’s own
admissions. As noted above, Detective
Keyzer interviewed defendant extensively and on repeated occasions in the month
following the shooting. Defendant made
incriminating statements both before and after Detective Keyzer briefly
mentioned Mr. Gonzalez’s purported polygraph examination. At first, defendant denied any involvement in
the assault. He also denied his brother
Andrew was in the shooter’s car.
Defendant subsequently admitted he was speaking to his brother Andrew on
the telephone around the time the assault occurred, but denied their
conversation had anything to do with the victims. Eventually, defendant admitted his brother
was in the assailant’s vehicle. He
further admitted telling his brother the location of the victims’ car.
Detective
Keyzer repeatedly challenged defendant’s version of the facts. He told defendant that other people had told
him Andrew was involved in the shooting.
He told defendant he had telephone records showing defendant was talking
to his brother on the night of the shooting.
Detective Keyzer said that based on the telephone records, he knew
Andrew was in the shooter’s car.
The jury
had before it evidence of the evolving conversations between defendant and
Detective Keyzer. The jury could assess
for itself the effect of Detective Keyzer’s tactics on defendant’s subsequent
statements. In the context of the
ongoing conversation between the detective and defendant, and the evidence as a
whole, the effect of Detective Keyzer’s polygraph ruse on defendant’s
admissions was remote. There is no
likelihood the jury, knowing of the polygraph ruse, would have found
defendant’s admissions were coerced untruths or otherwise found more favorably
to him.
B. The Mexican Mafia Evidence
1. The testimony
The Mexican
Mafia was a prison gang that oversaw all Hispanic gangs in Southern
California. The Mexican Mafia was known
to issue “green light†orders in certain circumstances and to keep green light
lists. A green light meant the Mexican
Mafia had targeted a person for harm, usually murder. Mr. Gonzalez (who implicated defendant in the
assault) had ties to the Mexican Mafia.
One day prior to Fernando’s murder, Javier and Fernando instigated a
fight in Mr. Gonzalez’s front yard. The
Nunos brothers’ father, Javier Nuno, Sr. (“Quinteroâ€), also engaged in the
fight. Their uncle, Sergio Nuno, was the
driver. He remained in his car. During the altercation at the Gonzalez home,
weapons were drawn. Young children were
present. This “disrespect†led the
Mexican Mafia to issue a green light against Javier, Fernando and
Quintero. The green light resulted in
Fernando’s murder. In a conversation
with Detective Keyzer, defendant identified the incarcerated Mexican Mafia
member who ordered the green light.
Sergio was defendant’s friend as
well as the victim’s uncle. The
prosecution sought to explain defendant’s participation in the present offenses
despite his friendship with Sergio. The
prosecution reasoned: a green light had
earlier been issued against defendant for his undisputed, repeated cooperation
with law enforcement, that is, for being a “snitchâ€; and by carrying out the Mexican Mafia’s green
light against members of the Nuno family, defendant hoped to have his own green
light extinguished.
The
evidence raised several questions about how and why green lights were
issued. Was disrespecting a Mexican
Mafia member’s home a reason to issue a green light? Could a green light against the Nunos have
been issued between the fight at the Gonzalez home and the next day’s shooting? Would a green light issue against a
snitch? And if so, could the target
extinguish it by executing a green light against another gang member?
Gang
experts for the prosecution—Detective Gutierrez—and for the defense—Alex
Alonso—each discussed the manner in which a green light issues. Both agreed that a green light
disrespected the home of a Mexican Mafia member’s family. Detective Gutierrez, however, had not heard
of it being done. Detective Gutierrez
testified that, in general, the consent of at least two Mexican Mafia members
was required to approve a green light.
But, “[A] green light can be approved as quick as a phone call.†Detective Gutierrez had once heard of a green
light against a gang being lifted after the gang’s members participated in a
hit on two rival gang members. Depending
on the severity of the transgression, a person’s name could be removed from a
green light list. Other green lights
were permanent until death. A person
could get off a green light list by making amends—for example, by committing a
crime for the prison gang or by paying money owed.
Testifying
for the defense, Mr. Alonso said a high-ranking Mexican Mafia member could
order a green light against an individual without input from others. The length of time required to secure a green
light depended on the speed at which necessary communications could occur. It could take several days. The heightened surveillance of Mexican Mafia
members in custody could delay the response time. A turnaround time of 36 hours would be
“pretty quick.†There were circumstances
in which a green light could be lifted.
But Mr. Alonso had never heard of a green light being lifted once issued
against a snitch. He had never heard of
a green light against a snitch being lifted after the target participated in
killing another snitch. If the Mexican
Mafia learned a gang member told law enforcement officers a named Mexican Mafia
member had ordered a green light, the snitch would be targeted for murder.
Defendant
testified in his own defense. He said he
did not believe it was possible for his own green light to be lifted by
assaulting the Nunos.
2. The proposed testimony
Defendant’s
attorney, Jonathan Mandel, sought to call Charles Marquez, a prison inmate and
former Mexican Mafia member, to testify about green lights. Mr. Mandel made the following offer of
proof. Mr. Marquez had been a member of
the Mexican Mafia for 15 to 20 years. He
would testify that green lights take one to two weeks to issue and require the
assent of more than one member. It was
possible but unlikely a green light would issue for disrespecting a Mexican
Mafia member’s family home. The Mexican
Mafia prefers not to issue green lights because of personal vendettas. Further, a snitch cannot extinguish a green
light by making amends. And if defendant
told law enforcement officers a named Mexican Mafia member had ordered a green
light, defendant would be subject to the most powerful green light; the
sanctions against him would be “astronomical.â€
Mr. Mandel
conceded his request to call Mr. Marquez as a witness was untimely. Mr. Mandel had not given notice 30 days prior
to trial that he intended to call Mr. Marquez as a witness, as required by
sections 1054.3 and 1054.7.
3. The trial court’s ruling
The trial
court ruled the proposed testimony was
cumulative. The points Mr. Mandel sought
to make had already been brought out by both defense and prosecution gang
experts. The trial court further noted
it was not until the first day of trial that Mr. “Mandel gave any indication he
might want to call this witness. Now, at
the end of the trial, Mr. Mandel had finally interviewed the potential witness
for the first time, and for only 10 or 15 minutes. This was an old case and the issues had been
known to everyone for a long time. Mr.
Mandel conceded his request was untimely.
Because the request to call the witness was not made within the
parameters of section 1054.7, and because the proposed testimony was
cumulative, the trial court denied the defense request to call Mr. Marquez as a
witness.
4. There was no abuse of discretion
Our review
is for an abuse of discretion. (
1113, disapproved on a different point in People
v. Rundle (2008) 43 Cal.4th 76, 151; People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
As our Supreme Court held in Guerra,
“[A] trial court’s [admissibility] ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a miscarriage of justice.
[Citation.]†(
p. 1113, quoting People v. Rodriguez,
supra, 20 Cal.4th at pp. 9-10; accord, People
v. Hartsch (2010) 49 Cal.4th 472, 497.)
There was no abuse of discretion.
As Mr. Mandel conceded, the request to call Mr. Marquez as a witness was
untimely. Further, the proposed
testimony was cumulative. Detective
Gutierrez and Mr. Alonso had already testified to the points Mr. Mandel sought
to prove by calling Mr. Marquez as a witness.
C. Sentencing
1. Section 654
Defendant
argues the imposition of concurrent terms on counts 1 and 5 violated section
654; he asserts the sentence on count 5 must be stayed. That contention is without merit. There were four people in the vehicle when
defendant’s fellow gang member fired multiple gunshots at it. One person died. Under the multiple victims exception to
section 654, defendant was properly punished for both second degree murder and
v. Garcia (1995) 32 Cal.App.4th 1756, 1780-1785; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1736-1737;
588, 598; People v. Masters (1987)
195 Cal.App.3d 1124, 1127-1128.)
2. Section 12022.53, Subdivision (e)(2)
Defendant
asserts and the Attorney General concedes that it was error to sentence
defendant on count 5 to a concurrent indeterminate life term under section
186.22, subdivision (b)(4)(B) and also impose a consecutive 25-year-to-life
enhancement under section 12022.53, subdivisions (d) and (e)(1). We agree.
(§ 12022.53, subd. (e)(2); People
v. Brookfield (2009) 47 Cal.4th 583, 595; People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1425;
1275, 1281-1282.) The 15-year-to-life
sentence on count 5 must be reversed. (
at p. 596.) On remand, the trial court
must select the base term for felony shooting at an occupied vehicle, 3, 5 or 7
years. (§ 246.)
The trial
court stayed section 12022.53, subdivisions (b) and (c) enhancements as to both
counts under subdivision (f) of that section.
Those orders are reflected in the abstract of judgment. We asked the parties to brief the questions
whether: as to count 5, it was error to stay the enhancements as the jury did
not return true findings as to any section 12022.53, subdivisions (b) or (c)
allegations; and the trial court was required to orally impose and then stay the section 12022.53, subdivision (b) and (c)
enhancements on count 1. The judgment
must be modified to strike the stayed section 12022.53, subdivisions (b) and
(c) enhancements as to count 5. The oral
pronouncement of judgment must be modified to impose and then stay the
enhancements as to count 1. (§ 12022.53,
subd. (f); People v. Gonzalez (2008)
43 Cal.4th 1118, 1122-1123, 1130.)
3. Presentence Custody Credit
Defendant
argues and the Attorney General concedes that the matter must be remanded for a
recalculation of defendant’s presentence custody credit. The trial court awarded defendant credit for
1,426 days in presentence custody.
However, defendant was arrested on January 21, 2007, and sentenced on October 5, 2011, a period totaling 1,719 days. In addition, the trial court did not include
time spent in custody in Arizona awaiting extradition to California. We have no record before us of the time
defendant spent in custody in Arizona.
Defendant’s presentence custody credit award is erroneous. On remand, the trial court must recalculate
defendant’s presentence custody credit to include all time spent in custody in
Arizona awaiting extradition and in California after extradition.
4. Court Facilities Assessment
The trial
court imposed a $30 court facilities assessment. (Gov. Code, § 70373, subd. (a)(1).) We asked the parties to brief the question
whether the trial court should have imposed the court facilities assessment as
to each count. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.) The judgment must be modified to impose and
the abstract of judgment amended to reflect a $30 court facilities assessment
as to each count for a total of $60. (
5. The Abstract of Judgment
The
trial court imposed a $40 court security fee (§ 1465.8, subd. (a)(1)) as to
each count for a total of $80. The
abstract of judgment incorrectly records the amount as $40. The abstract of judgment must be corrected to
reflect the court security fees totaling $80.
In addition, the abstract of judgment erroneously reflects a
under section 12022.53, subdivisions (d) and (e)(1), on count 5. The trial court properly imposed a
sentence. (§ 12022.53, subds. (d) &
(e)(1).) The abstract of judgment must
be corrected to reflect a consecutive 25-year-to-life sentence under section
12022.53, subdivisions (d) and (e)(1), on count 5. (See People
v. Acosta (2002) 29 Cal.4th 105, 110 [“the [trial] court should . . .
ensure that the abstract of judgment is correctâ€].)
IV. DISPOSITION
The
15-year-to-life sentence on count 5, shooting at an inhabited vehicle, is
vacated. The cause is remanded for
resentencing as to count 5, and amendment of the abstract of judgment as follows. The trial court is directed to: select a determinate base term for count 5;
impose a consecutive 25-year-to-life
sentence under Penal Code section 12022.53, subdivisions (d) and (e)(1) on
count 5; strike the Penal Code section 12022.53, subdivisions (b) and (c)
enhancements on count 5; impose and then stay the Penal Code section 12022.53,
subdivisions (b) and (c) enhancements on count 1; recalculate defendant’s
presentence custody credit to include all time spent in custody in Arizona
awaiting extradition and, subsequently, in California; impose Penal Code
section 1465.8, subdivision (a)(1) court security fees totaling $80; impose
Government Code section 70373, subdivision (a)(1) court facilities assessments
totaling $60. In all other respects, the
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
O’NEILL,
J.
We concur:
ARMSTRONG, ACTING P.J.
KRIEGLER , J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] To
avoid confusion, we refer to members of the Nuno family by their first names.
