P. v. Ceballos
Filed 11/6/13 P. v. Ceballos CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
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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.
ERIC CEBALLOS et al.,
Defendants and Appellants.
B240172
(Los Angeles
County
Super. Ct.
No. BA343972)
APPEAL from
judgments of the Superior Court
of
County, Sam Ohta, Judge.
Affirmed as modified.
Steven
Schorr, under appointment by the Court of Appeal, for Defendant and Appellant
Eric Ceballos.
Lawrence
R. Young for Defendant and Appellant Cesar Ortega.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Mark E. Weber, Deputy Attorney General,
for Plaintiff and Respondent.
>
INTRODUCTION
Defendants
and appellants Eric Ceballos and Cesar Ortega were tried together before
separate juries. Ceballos’s jury found Ceballos
guilty of first degree murder (Pen.
Code, § 187, subd. (a)
name="_ftnref1" title="">[1]),
assault with a semiautomatic firearm
(§ 245, subd. (b)), and shooting at an occupied motor vehicle (§ 246). The jury found true the allegation that Ceballos
committed each of the offenses for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)
(gang enhancement allegation)); and the allegations that in the commission of
the murder and shooting at an occupied motor vehicle offenses, a principal
personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally
discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally
discharged a firearm proximately causing great bodily injury or death
(§12022.53, subds. (d) & (e)(1)). Ortega’s
jury found Ortega guilty of first degree murder (§ 187, subd. (a)), attempted
murder (§§ 664/187, subd. (a)), and shooting at an occupied motor vehicle (§
246). As to all offenses, Ortega’s jury found
true a gang enhancement allegation (§
186.22, subd. (b)), and the allegations that a principal personally used a
firearm (§ 12022.53, subds. (b) & (e)(1)), personally discharged a firearm
(§ 12022.53, subds. (c) & (e)(1)), and personally discharged a firearm
proximately causing great bodily injury or death (§12022.53, subds. (d) &
(e)(1)). The trial court sentenced
Ceballos and Ortega to state prison
terms of 97 years to life and 84 years to life respectively.
On appeal, defendants
contend that the trial court erred in admitting photographs that showed them in
the company of Toonerville gang members and in imposing sentence enhancements
under section 12022.53, subdivisions (b) and (e)(1) and (c) and (e)(1) on their
shooting at an occupied vehicle convictions.
Ceballos further contends that the trial court erred in imposing a
four-year section 186.22, subdivision (b)(1)(A) sentence enhancement on his
assault with a semiautomatic firearm conviction. Ortega further contends that there was
insufficient evidence to support his murder conviction; and the prosecution’s
expert witness testimony in support of the gang enhancement allegation was
hearsay; and the admission of that testimony violated his constitutional right
of confrontation. Ceballos and Ortega
join each other’s arguments. Respondent states
that Ceballos should have been awarded two additional days of custody credit
and Ortega should have been awarded six additional days. We order defendants’ abstracts of judgment
modified by striking the section 12022.53, subdivisions (b) and (e)(1) and (c)
and (e)(1) sentence enhancements on their shooting at an occupied vehicle convictions. We further order Ceballos’s abstract of
judgment modified to reflect 1,325 days of custody credit, and Ortega’s
abstract of judgment modified to reflect 1,301 days of custody credit. The judgments otherwise are affirmed.
BACKGROUND
name="_ftnref2" title="">[2]
I. Evidence Presented to Both Juries
Shootings
On February
14, 2008, Martha Hosie and her girlfriends, including Claudia Ledezma, were at
Hosie’s house. At some point, Hosie drove
Ledezma to Steve Garcia’s house in the Atwater area. After midnight, Garcia drove Hosie and
Ledezma to a local bar where they remained until about 2:00 a.m. When they left the bar, Garcia was driving,
Ledezma was sitting in the front passenger seat, and Hosie was sitting in the
back seat behind Ledezma.
As they
drove, Garcia turned onto Carillon Street in Atwater Village, coming to a stop
in the 2700 block. Two men approached the
car from the passenger side. One man
stood directly next to Ledezma’s door.
Hosie believed that the second man stood two steps to the left and five or
six steps behind the man next to Ledezma’s door. Ledezma believed that the second man stood to
the right of the man next to Ledezma’s door, close to the car. Ledezma described the man in front as being
no more than five feet, nine inches tall and stocky. He was wearing a white shirt, a “hoodie,†and
a blue hat that he wore backwards.
The man in
front tapped on Ledezma’s window with a gun that appeared to be a semiautomatic
firearm. Hosie heard the man ask, “Where
are you from, homey?†At trial, Ledezma
identified Ceballos as the man who tapped on her window with the gun. She testified that she got a good look at the
man standing next to Ceballos and he was not in the courtroom. The inquiry, “Where are you from†is a common
phrase gang members use to challenge a gang member from another territory or to
determine a person’s gang membership. After
the inquiry, Hosie heard multiple gunshots.
Ledezma did not hear Ceballos say anything, but heard a series of
gunshots after Ceballos tapped on the window.
According to Ledezma, Ceballos reached into the car and fired his
gun.
Hosie
yelled to Garcia to “drive.†Garcia
tried to drive away but crashed into a light pole. Ledezma heard additional gunshots after the
car crashed, and saw Ceballos and the second man run to a car and drive
away. Ceballos’s hat fell off as he ran
to the car.
Ledezma got
out of the car and called 911. The 911
operator asked Ledezma her location.
Because she did not know, Ledezma walked to the next street to read the
street sign. Ledezma gave the 911
operator her location and returned to Garcia’s car where she determined that
she had been shot in the left elbow.
Ledezma’s gunshot wound required two surgeries and left her with a 12-inch
scar. Garcia sustained fatal gunshot
wounds.
About 3:00
a.m. on February 15, 2008, an Hispanic man entered the Pacifica Hospital
emergency room with a gunshot wound to his neck. The man told a security guard that he had a
friend in a car who needed help. The
security guard went outside with a wheelchair and assisted the man into the
hospital. The security guard could not
remember the nature of that man’s injuries.
Around 3:00 a.m. on February 15, 2008, Los Angeles Police Officer Randy
Blandford responded to a call at the Pacifica Hospital about two shooting
victims. Officer Blandford identified
Ceballos and Ortega as the shooting victims.
Los Angeles
Police Department officers responded to the scene of Garcia’s shooting. In their investigation, they determined that both
sides of Garcia’s car had multiple bullet strikes from different angles. There were several bullet strikes on the
driver’s door, and both driver’s side windows were smashed. The windshield had multiple bullet holes,
most of which were on the passenger side.
The front passenger window was “partially†rolled down. In the street, officers found seven spent
casings that appeared to have been from a nine-millimeter handgun, bullet
fragments, a baseball hat, and a live “round†or bullet. They recovered two casings inside Garcia’s
car and one spent casing on the car near the windshield.
Los Angeles
Police Department Firearms Analysis Unit Criminalist William Moore testified
that of the spent casings recovered, eight were fired from the same nine-millimeter
semiautomatic handgun. The live bullet that
was recovered was cycled through a second nine-millimeter semiautomatic
firearm. A spent casing also was fired
from that second firearm. According to
Moore, two bullets recovered from Garcia by the coroner, a bullet recovered
from the driver’s door, and a bullet found next to Garcia’s body were fired from
a .38-caliber revolver. A bullet recovered
from Ledezma’s elbow was “most consistent†with a .38- or .357-caliber bullet,
and not with a nine-millimeter bullet. However,
Ledezma’s bodily fluids had eroded some of the bullet’s “individualizing
features†preventing further identification.
Moore was
able to identify clearly three guns that were fired at the murder scene. With respect to two of the guns, and
presumably as to the third gun, Moore testified that there was no way for him
to determine whether they were at the crime scene that night. There was other bullet evidence that was
fired from a fourth firearm, i.e., not from either of the identified
nine-millimeter semiautomatic or the .38-caliber revolver handguns. Moore could not specifically identify additional
other bullet evidence as having been fired from a particular gun. Assuming such evidence was produced by
independent firearms, it was possible there were additional firearms at the
murder scene.
Tests on
the brim or sweatband of the hat recovered from the murder scene revealed DNA
from at least two persons. Ortega could
have been the source of the DNA—one out of 10,000 persons has a DNA profile
that could fit within the DNA mixture on the hat. Ceballos was excluded as a DNA source. Tests on a blood swab taken at the murder
scene matched Ortega’s DNA—one out of 100 trillion persons would match the
blood sample.
Los Angeles
County Coroner’s Office Deputy Medical Examiner Dr. Ajay Panchal performed the autopsy
on Garcia’s body. Dr. Panchal testified
that Garcia suffered 15 gunshot wounds, four of which were fatal by
themselves. Four of the gunshot wounds
entered the left side of Garcia’s body with a left-to-right path. Dr. Panchal recovered six bullets or bullet
fragments in the autopsy.
In April
2008, Los Angeles Police Department Detective Harold DiCroce showed Ledezma a six-pack
photographic lineup. Ceballos’s
photograph was photograph No. 3. Ledezma
circled photograph Nos. 1 and 3, believing they could have been the man she saw
holding the gun the night of Garcia’s murder.
Detective DiCroce then left Ledezma alone in the interview room. While Detective DiCroce was away, Ledezma took
another look at the photographs and identified No. 3 as the person she
saw. When Detective DiCroce returned to
the interview room, Ledezma did not tell him that she had identified photograph
No. 3 and was excluding No. 1. It did
not occur to her to do so. At trial, Ledezma
testified that she was positive that Ceballos was one of the shooters. She testified, “Facial features, or when you
go to bed every night looking at that face over and over, you just know.â€
Detective
DiCroce also showed Ledezma a six-pack photographic lineup containing Ortega’s
photograph. Ledezma did not identify
Ortega from the lineup.
Gang Evidence
Los Angeles
Police Department Sergeant John Strasner, the prosecution’s gang expert,
testified that the primary activities of the Toonerville gang were drugs sales,
assaults with deadly weapons, and murder.
On April 8, 2009, Toonerville gang member Patrick Evans was convicted of
a murder committed on December 24, 2006.
Assael Aguirre was convicted of a murder, an attempted murder, and a shooting
at an occupied vehicle committed on April 24, 2006.
Sergeant
Strasner testified that the Rascals and Toonerville gangs were rivals with a
history of violent crimes against each other that included assaults, shootings,
and murders. Garcia was a member of the
Rascals gang. Ceballos and Ortega were
members of the Toonerville gang. The
territories of the Rascals and Toonerville gangs bordered one another. The location of Garcia’s and Ledezma’s shooting
was “very, very deep†in Rascals territory.
Sergeant Strasner opined that a hypothetical shooting by a gang member based
on facts similar to this case would have been committed for the furtherance of
the gang.
According
to Sergeant Strasner, Danny Huerta was a Toonerville gang member. On February 16, 2008, the day after Garcia’s
murder, Sergeant Strasner, responding to a call concerning an armed person
selling narcotics, saw Huerta throw a handgun inside the trunk of a red Geo Storm. The car was registered to Maricela Serna
Garcia, mother of Toonerville gang member Gabriel Serna.
other handguns, a .38-caliber revolver in the glove box. Two of the bullets recovered from Garcia
during his autopsy, the bullet found in the driver’s door, and the bullet found
next to Garcia’s body were fired from that .38-caliber revolver. According to Sergeant Strasner, commonly, a
gang member who has used a gun to commit some kind of act will pass the gun to
another gang member.
II. Evidence Presented Only to Ortega’s Jury
On February
14, 2008, Lindsay Lilburn and her fiancé Richard Clayborn were at Ortega’s
apartment. Clayborn was a Toonerville
gang member. Ortega, Ceballos, “Joker,†“Scooby,â€
and Ortega’s wife also were present at the apartment. At some point, Clayborn, Ortega, Ceballos,
Joker, and Scooby had a conversation about going to “Trashâ€â€”a term used to
refer to the Rascals gang’s neighborhood.
“They†attempted to convince Clayborn to go to “Trashâ€â€”Ortega asked Clayborn
if he wanted to go to Trash. Clayborn
declined. Ceballos was part of the
conversation, but Lilburn did not remember anything specific that he said. She knew, however, that “he went.†Lilburn wanted to go home, and Clayborn went
with her. Lilburn and Clayborn lived
“quite a distance†from Ortega’s apartment.
They left Ortega’s apartment late in the evening. About two hours after they arrived home, Ortega
called Lilburn and told her that he had been shot and thought he was paralyzed.
In October
2008, Clayborn was arrested. He was
charged with murder in 2009. In an
attempt to help Clayborn, Lilburn gave the police information about the
“Valentine’s Day†murder. Lilburn
believed the police would release Clayborn if she cooperated. Lilburn was given immunity in the case
against Clayborn. Lilburn testified that
she did not lie to the police and was not lying on the stand. Lilburn admitted that she was a methamphetamine
addict with a long history of drug arrests.
She had been put into a drug treatment program following a recent
arrest. Lilburn’s drug use impaired her
memory. She was drinking, but not using
drugs on February 14, 2008.
Around 3:00
a.m. on February 15, 2008, Los Angeles Police Department Officer Keith Hopkins responded
to a call at Pacifica Hospital about two shooting victims. There, he spoke with Ortega, one of the
victims. Ortega had been shot in the abdomen. Ortega told Officer Hopkins that about an
hour earlier, he was sitting on a bus stop bench near the intersection of San
Fernando Road and Maclay Street when he was shot and fell to the ground. Ortega did not see anything and did not
remember anything else about the shooting.
He told the officer that an unknown person in an unknown type of black
vehicle took him to the hospital. Ortega
was uncooperative in the investigation and appeared not to want to speak with
Officer Hopkins. Officer Joseph
Villagran went to the intersection of San Fernando Road and Maclay Street and
was unable to find any evidence of a shooting such as casings, stray bullets,
or blood.
On February
15, Detective DiCroce learned that two Toonerville gang members had been
admitted to Pacifica Hospital about a half an hour after the shooting in
Atwater Village. On February 17, Detective
DiCroce interviewed Ortega at Northridge Hospital, to which Ortega had been
transferred. At first, Ortega stood by the
story he previously had told the police, i.e., that he had been by himself when
he was shot at Maclay and San Fernando Road and he was taken to the hospital by
an unknown person. Detective DiCroce
pressed Ortega, telling him that his story did not make sense—that he was shot
at one location, a car picked him up, and a second gang member who also had
been shot at a different location was in the car. Ortega continued to claim that he had been
shot at Maclay and San Fernando Road, but added that Ceballos had been with
him. Ortega explained that he did not
want to get in trouble with his girlfriend—he and Ceballos had been out “meeting
some girls†near Maclay and San Fernando Road when they were shot. Ortega denied being at the homicide scene in
Atwater, and did not know who shot him or why.
III. Evidence Presented Only to Ceballos’s
Jury
When
Officer Blandford interviewed Ceballos at the hospital, he believed that
Ceballos was a gunshot victim. Ceballos
told the officer that about a half an hour earlier he was walking on Osborne Street
near Glenoaks when a car pulled to the curb next to him. A person in the car asked, “Where are you
from?†Ceballos responded, “Toonerville.†The car’s passenger produced a handgun and
shot Ceballos three times. The car fled,
and a friend Ceballos did not identify gave him a ride to Pacifica
Hospital. Ceballos did not appear to
Officer Blandford to be cooperative. Officer
Villagran went to the area of Osborne Street where Ceballos claimed to have
been shot and did not find evidence that there had been a shooting.
On February
17, 2008, Detective DiCroce interviewed Ceballos at the hospital. Ceballos stuck with part of his story, but
added that he was with Ortega “meeting some girls†when he was shot.
Detective
DiCroce arrested Ceballos on July 21, 2008.
Detectives DiCroce and Lisa Governo interviewed Ceballos. A recording of the interview was played for
the jury. In the interview Ceballos said
that he was with Ortega
name="_ftnref5" title="">[5]
“some girls†near Maclay and Foothill in Sylmar when he was shot. He said he lied at the hospital because his
girlfriend was present. A man unknown to
Ceballos drove him and Ortega to the hospital.
Detective
DiCroce showed Ceballos a picture of the hat that had Ortega’s DNA on it and
said the hat was found at a homicide scene.
He told Ceballos that he spoke with Ortega, that Ortega admitted that he
was at the homicide scene, and that Ortega said that Ceballos was with him at
the homicide scene. Ceballos said that Ortega
told him to say they were together. Detective
DiCroce said he did not believe Ceballos and advised him to tell the
truth. Ceballos responded that he was on
Osborn Street in Pacoima when he was shot.
Ceballos did not know that he and Ortega were at the same hospital until
Ortega called him a few days later.
Detective
DiCroce expressed doubt that Ceballos and Ortega were shot in different parts
of the city, that they were picked up by the same car and taken to the
hospital, and that Ortega called Ceballos a few days later and asked him to say
they were together when they were shot. Ceballos
then admitted that he was “there†with Ortega, but denied that he had a
gun. He said he drove Ortega and
“Snoopy†to a location in the Rascals’ neighborhood and parked. Ortega and Snoopy got out got out of the car. Ceballos heard shots. Ceballos determined that Ortega was shot and went
to get him. While doing so, Ceballos was
shot. Snoopy drove Ceballos and Ortega
to Chevy Chase Park. Someone else got
into the car and drove Ceballos and Ortega to the hospital. Ceballos did not know that Ortega and Snoopy
were armed with guns or what their intentions were.
DISCUSSION
I. Sufficiency of Evidence in Support
of Ortega’s Murder Conviction
Ortega
contends that there is insufficient
evidence to support his murder conviction.
of Review
“‘When
considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]†(People
v. Avila (2009) 46 Cal.4th 680, 701.) “We must presume in support of the judgment
the existence of every fact that the trier of fact could reasonably deduce from
the evidence. [Citation.]†(People
v. Medina (2009) 46 Cal.4th 913, 919.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to supportâ€â€™ the jury’s verdict. [Citation.]†(People
v. Zamudio (2008) 43 Cal.4th 327, 357.) “In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact.†(People
v. Young (2005) 34 Cal.4th 1149, 1181.)
“Substantial
evidence includes circumstantial evidence and the reasonable inferences flowing
therefrom.†(People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) “We ‘must accept logical inferences that the
jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation].†(People
v. Zamudio, supra, 43 Cal.4th at pp. 357–358.) “The standard of review is the same when the
prosecution relies mainly on circumstantial evidence.†(People
v. Valdez (2004) 32 Cal.4th 73, 104.)
of Relevant Principles
Ortega
contends that his murder conviction is not supported by sufficient evidence
because the prosecution did not present an eyewitness who saw him with a gun,
or saw him shoot Garcia or Ledezma, or even placed him at the scene of the
murder. The only evidence that he was
present, defendant contends, was his DNA on the hat that was found in the
street. He apparently argues that we
should disregard Lilburn’s testimony because it was “seriously compromised†as
she assisted the police by providing information about the “Valentine’s Dayâ€
murder in an effort to help Clayborn in his murder prosecution and by her drug use
that impaired her memory.
Sufficient
evidence supports Ortega’s conviction. Ortega
was a member of the Toonerville gang.
The Toonerville and Rascals gangs were rivals with a history of violent
crimes against each other including assaults, shootings, and murders. According to Lilburn, hours before the
murder, Ortega and other Toonerville gang members, including Ceballos, gathered
at Ortega’s apartment. At some point,
Ortega and Ceballos, whom an eyewitness identified as one of the shooters, and
the others discussed going to the Rascals gang’s territory. Ortega asked Clayborn if he wanted to go to
the Rascals gang’s territory.
After Garcia
left the bar at 2:00 a.m., he was shot at a location deep in the Rascals gang’s
territory. Ortega’s blood was found at
the scene of Garcia’s murder. Ortega
arrived at the Pacifica Hospital with a gunshot wound around 3:00 a.m. Ortega later admitted that he was with
Ceballos when he was shot, although he claimed to have been shot at Maclean
Street and San Fernando Road. The police
did not find any evidence that there had been a shooting at that location.
Ledezma
testified that two men approached the passenger side of Garcia’s car—Ceballos,
who fired shots into the car, and a second man whom she got a good look at and
whom she did not identify as Ortega.
Ledezma and Hosie believed that Ceballos was armed with a semiautomatic
handgun. Ceballos fired his handgun from
the passenger side of the car. The
ballistics evidence showed that Garcia was shot with a .38-caliber revolver
from the driver’s side of the car.
Ledezma was shot in the left elbow with a bullet that was “most
consistent†with a .38- or .357-caliber bullet and not a nine-millimeter
bullet. A jury reasonably could conclude
from such evidence that Ceballos and Ortega shot at Garcia from opposite sides
of Garcia’s car—Ceballos with a nine-millimeter semiautomatic handgun from the
passenger side and Ortega with a .38-caliber revolver from the driver’s side;
that Ortega shot Garcia and Ledezma with a .38-caliber revolver; and that
Ceballos and Ortega inadvertently shot each other in the process.
As for
Ortega’s challenge to Ledezma’s credibility, her credibility was a matter for
the jury to decide. (People v. Jones
(1990) 51 Cal.3d 294, 314 [“Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the
trial judge or jury
to determine the credibility
of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact
finder. [Citations.]â€].)
II. Admission of Photographs
Defendants
contend that the trial court erred in admitting photographs of them with Serna,
a fellow Toonerville gang member, and the error violated their constitutional rights
to freedom of association and to a fair trial.
The photographs lacked relevance, defendants argue, “because the
evidence failed to establish any nexus between Serna and the car, Serna and the
guns found in the car or [defendants] and the guns, the car or Serna’s
mother.†Absent any such nexus,
defendants reason, photographs that proved they were acquainted with Serna did
not support any reasonable inference that either of them conveyed to Serna a
gun used in the shooting or connected either of them to the gun at the time of
the shooting.
“‘“The
rules pertaining to the admissibility of photographic evidence are
well-settled. Only relevant evidence is
admissible [citations], and all relevant evidence is admissible unless excluded
under the federal or California Constitution or by statute. [Citations.]
Relevant evidence is defined in Evidence Code section 210 as evidence ‘having
any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’ The test of relevance is whether the evidence
tends ‘“logically, naturally, and by reasonable inference†to establish
material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in
determining
but lacks discretion to admit irrelevant evidence. [Citations.]â€
[Citation.]’ [Citation.]†(People v. Carter (2005) 36 Cal.4th 1114, 1166–1167.) “A trial court’s exercise of discretion in
admitting or excluding evidence is reviewable for abuse [citation] and will not
be disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
1, 9-10.)
Even
assuming that the trial court erred in admitting photographic evidence that
demonstrated that Ceballos and Ortega knew Serna, any such error was harmless
under either Chapman
v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt
standard] or People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a
more favorable result standard]. As to
Ortega, the evidence showed that he was a member of the Toonerville gang, which
gang had a violent rivalry with the Rascals gang. Hours before Garcia and Ledezma were shot,
Ortega and Ceballos discussed going to Rascals gang territory. Garcia and Ledezma were shot at a location
deep in the Rascals gang’s territory.
Ledezma identified Ceballos as one of the shooters and Ortega’s blood
was found at the scene. Around the time
of Garcia’s murder, Ortega and Ceballos went to the Pacifica Hospital with
gunshot wounds. Ortega told the police
that he was shot at Maclean Street and San Fernando Road, but the police did
not find any evidence that there had been a shooting at that location. Based on such evidence, it is beyond a
reasonable doubt that Ortega’s jury would have reached the same verdicts if the
photographs of Ortega with Serna had been excluded.
It also is beyond
a reasonable doubt that Ceballos’s jury would have reached the same verdicts if
the challenged photographic evidence had been excluded. As Ortega, the evidence showed that Ceballos
was a member of the Toonerville gang; that the Toonerville gang had a violent
rivalry with the Rascals gang; and that Garcia and Ledezma were shot at a
location deep in the Rascals gang’s territory.
Ceballos admitted that he drove Ortega and “Snoopy†to a location in the
Rascal’s neighborhood and parked, and that he heard gunfire at that location.
evidence also firmly established Ceballos as one of the shooters. Ledezma, an eyewitness to the shooting,
observed at close range the shooter who tapped on her window before reaching
into Garcia’s car and shooting Garcia.
She identified Ceballos as that shooter.
Ledezma’s testimony alone was sufficient to support Ceballos’s
convictions. (People v. Young,
a single
sufficient to support a conviction unless it is physically impossible or
improbable]. ) Moreover, although he denied being a shooter, Ceballos
admitted that he was with Ortega at the scene of the murder.
III. Sergeant Strasner’s Testimony
Ortega
contends that Sergeant Strasner’s expert witness testimony about the predicate
offenses for the section 186.22, subdivision (b)(1)(C) gang enhancement
and Aguirre’s prior convictions—was hearsay and its admission violated his
constitutional right of confrontation.
(U.S. Const., 6th Amend.; Crawford
v. Washington (2004) 541 U.S. 36.) Ortega
also appears to contend that there was insufficient evidence to support the
gang enhancement because there was no evidence that he previously committed a
crime for the benefit of the Toonerville gang or that he was an active member
at the time of the offenses in this case. Ortega’s claims fail.
The failure
to object to the admission of evidence on hearsay or right of confrontation
grounds in the trial court forfeits appellate review. (People v. Bolin (1998) 18 Cal.4th
297, 320 [hearsay claim]; People v. Riccardi (2012) 54 Cal.4th 758, 827,
fn. 33 [Sixth Amendment confrontation clause claim].) Because Ortega did not object to the
admission of Sergeant Strasner’s testimony on hearsay or confrontation clause
grounds, he has forfeited appellate review.
Defendant
cites no authority for his apparent contention that there was insufficient
evidence to support the gang enhancement under section 186.22, subdivision
(b)(1)(C) because the enhancement may not be imposed absent proof that he previously
committed an offense for the benefit of the gang. To the extent that defendant more
specifically contends that a defendant charged under section 186.22,
subdivision (b)(1)(C) must have committed a predicate offense within the
meaning of the statute, he likewise cites no supporting authority. By its terms, section 186.22, subdivision
(b)(1)(C)
not require the prosecution to prove that a defendant committed a prior offense
that benefitted the gang or that qualified as a predicate offense. Instead, prosecutors may prove predicate
offense through crimes committed by gang members other than the defendant. (See People
v. Hill (2011) 191 Cal.App.4th 1104, 1137-1138 & fn. 25 [evidence of
crimes by eight gang members other than the defendant]; People v. Tran, supra, 51 Cal.4th at pp. 1044, 1046, 1050 [although
a defendant’s offense on a separate occasion may serve as a predicate offense
for gang enhancement purposes, the trial court has the discretion to exclude
evidence of such an offense under Evidence Code section 352].)
As for
defendant’s claim that the prosecution failed to adduce evidence demonstrating
that he was a Toonerville gang member at the time the offenses were committed, “section
186.22 does not require that the defendant be an active or current member of
the criminal street gang that benefits from his crime. [Citation.]â€
(People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; see
v. Valdez (2012) 55
Cal.4th 82, 132 [a defendant’s gang membership is “neither necessary nor
sufficient to establish any element of the
insufficient evidence is unavailing.
IV. Ceballos’s Section 186.22, Subdivision
(b)(1)(A) Gang Enhancement on His
Assault With a Semiautomatic Firearm
Conviction
The jury
found Ceballos guilty of assault with a semiautomatic firearm and found true
the accompanying gang enhancement allegation under section 186.22, subdivision
(b). The trial court imposed a four-year
term for the gang enhancement. (§186.22,
subd. (b)(1)(A).) Ceballos contends that
under section 12022.53, subdivision (e)(2)
the imposition of the 25 years to life section 12022.53, subdivisions (d) and (e)(1)
enhancements on his convictions for murder and shooting at an occupied motor
vehicle (stayed pursuant to section 654) precluded imposition of the four-year gang
enhancement on his assault with a semiautomatic firearm conviction. We
disagree.
We review
the construction of a statute de novo. (Regents
of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.) “‘In construing a statute, our role is to
ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the
words of the statute because they are the most reliable indicator of
legislative intent. [Citation.] If the statutory
language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]’ (People
v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548].) In other words, if there is ‘no ambiguity or
uncertainty in the language, the Legislature is presumed to have meant what it
said,’ and it is not necessary to ‘resort to legislative history to determine
the statute’s true meaning.’
v. Cochran (2002) 28 Cal.4th 396, 400–401 [121 Cal.Rptr.2d 595, 48 P.3d
1148].)†(People v. Licas (2007) 41 Cal.4th
362, 367.) “We begin by examining the
words, giving them a plain and commonsense meaning.†(People
v. Murphy (2001) 25 Cal.4th 136, 142.)
“[W]hen a statute defining a crime or punishment is susceptible of two
reasonable interpretations, the appellate court should ordinarily adopt that
interpretation more favorable to the defendant.
[Citations.]†(People v. Avery (2002) 27 Cal.4th
49, 57.)
Ceballos
contends that the phrase “in the commission of the offense†in subdivision
(e)(2) of section 12022.53 is not clear and unambiguous and thus requires
judicial interpretation. He argues that
the phrase should be interpreted broadly to preclude imposition of a section
186.22 gang enhancement when a section 12022.53 enhancement based on a
principal’s firearm use or discharge has been imposed on another conviction
that was part of a continuous transaction.
Accordingly, Ceballos argues, because the sentence enhancements under
section 12022.53, subdivision (d) and (e)(1) on his murder and shooting at an
occupied motor vehicle convictions were based on a principal’s use of a firearm
as part of a continuing transaction and not on a finding that he personally used
or discharged a firearm, the section 186.22 gang enhancement on his assault
with a semiautomatic firearm conviction must be stricken.
The trial
court properly enhanced Ceballos’s sentence under section 186.22 on his assault
with a semiautomatic firearm conviction.
Subdivision (e)(2) of section 12022.53 precludes imposition of a section
186.22 gang enhancement in addition to a section 12022.53 enhancement unless
the defendant was found to have “personally used or personally discharged a
firearm in the commission of the offense.â€
is clear and unambiguous and plainly bars multiple sentence enhancements—i.e,
sentence enhancements under sections 12022.53 and 186.22—on the
Ceballos’s assault with a semiautomatic firearm conviction was not and could
not be enhanced under section 12022.53 because it was not an enumerated offense
under subdivision (a), the multiple sentence enhancement bar in subdivision
(e)(2) necessarily did not preclude the trial court from enhancing Ceballos’s
sentence under section 186.22.
V. Defendants’ Section 12022.53,
Subdivisions (b) and (e)(1) and (c) and (e)(1)
Enhancements for Their Shooting at
an Occupied Motor Vehicle Convictions
As to defendants’
convictions for shooting at an occupied motor vehicle, the jury found true the
allegations that a principal personally used a firearm (§ 12022.53, subds. (b)
& (e)(1)), personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)),
and personally discharged a firearm proximately causing great bodily injury or
death (§12022.53, subds. (d) & (e)(1)).
The trial court trial court imposed each of the sentence
enhancements. Pursuant to
1118, 1129-1130, the trial court stayed the sentence on the section 12022.53, subdivisions
(b) and (e)(1) and (c) and (e)(1) enhancements, and, pursuant to section 654,
stayed the sentences on defendants’ convictions for shooting at an occupied
motor vehicle, including the enhancements under subdivision (d) and (e)(1).
Defendants
contend that the sentence enhancements under section 12022.53, subdivisions (b)
and (e)(1) and (c) and (e)(1) must be stricken and not stayed because they were
not charged in the information and because shooting at an occupied motor
vehicle (§ 246) is not one of the enumerated offenses under section 12022.53,
subdivision (a), to which the subdivisions (b) and (e)(1) and (c) and (e)(1)
enhancements apply. Respondent agrees,
as do we, that the challenged enhancements must be stricken as section
12022.53, subdivisions (b) and (e)(1) and (c) and (e)(1) do not apply to violations
of section 246.
title="">[11] (§ 12022.53, subd. (a).)
VI. Custody Credits
Laudably,
respondent has identified sentencing errors that benefit defendants. Respondent states that the trial court erred
in awarding Ceballos 1,323 days rather than 1,325 days of custody credit, and
in awarding Ortega 1,295 days rather than 1,301 days of custody credit. We agree and order defendants’ abstracts of
judgment modified accordingly.
A defendant
is entitled
to credit
for all days in custody
commencing with the day of arrest (People v. Taylor (2004) 119
Cal.App.4th 628, 645) and including partial days and the day of sentencing (People
v. Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Fugate
(1990) 219 Cal.App.3d 1408, 1414). Ceballos
was arrested on July 21, 2008, and sentenced on March 6, 2012, a period of
1,325 days. The trial court erroneously awarded
Ceballos 1,323 days of custody credit. Ortega
was arrested on August 14, 2008, and sentenced on March 6, 2012, a period of
1,301 days. The trial court erroneously
awarded Ortega 1,295 days of custody credit.
We order Ceballos’s abstract of judgment modified to reflect 1,325 days
of custody credit, and Ortega’s abstract of judgment modified to reflect 1,301
days of custody credit.
DISPOSITION
Ceballos’s
abstract of judgment is ordered modified by striking the section 12022.53,
subdivisions (b) and (e)(1) and (c) and (e)(1) sentence enhancements on his
shooting at an occupied vehicle conviction (§ 246), and by reflecting an award
of 1,325 days of custody credit. Ortega’s
abstract of judgment is ordered modified by striking the section 12022.53, subdivisions
(b) and (e)(1) and (c) and (e)(1) sentence enhancements on his shooting at an
occupied vehicle conviction (§ 246), and by reflecting an award of 1,301 days
of custody credit. The judgments
otherwise are affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
name="_ftn1" title="">
Penal Code unless otherwise noted.
name="_ftn2" title="">
Ceballos and Ortega were tried to separate juries. Certain evidence was presented only to
Ceballos’s jury and other evidence was presented only to Ortega’s jury. Respondent’s brief failed to segregate such testimony. Ceballos moved this court to strike or
disregard evidence presented only to Ortega’s jury in resolving Ceballos’s
appeal. Respondent submitted a letter
brief acknowledging and correcting its error.
We grant Ceballos’s motion to the extent that we disregard evidence presented
only to Ortega’s jury in resolving Ceballos’s appeal. Likewise, we do not consider evidence presented only to
Ceballos’s jury in resolving Ortega’s appeal.
