P. v. Cordova
Filed
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN
THE COURT OF APPEAL OF THE STATE OF
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
BRANDON X. CORDOVA et al.,
Defendants
and Appellants.
B235226
(
Super.
No. KA093655)
APPEAL
from judgments of the
Countylace>. Bruce F. Marrs,
Judge. As to Brandon X. Cordova,
affirmed in part, reversed in part and remanded for resentencing. As to Carmello A. Placeres, affirmed.
Ava
R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant Brandon X. Cordova.
Christopher
Love, under appointment by the Court of Appeal, for Defendant and Appellant
Carmello A. Placeres.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
A
jury convicted defendant and appellant Brandon X. Cordova of two counts of
assault with a firearm and two counts of making
personal use of a firearm enhancement as to all four counts. The jury acquitted defendant and appellant
Carmello A. Placeres of the assault counts, but found him guilty on a separate
charge of being a felon in possession of
a firearm, and also found true the special allegation that defendant
Placeres had suffered a prior felony conviction. Both defendants were sentenced to determinate
terms in state prison, and both timely
appealed.
Defendant
Cordova contends the trial court abused its discretion in admitting gang evidence,
and committed sentencing error in violation of Penal Code section 654. Appointed counsel for defendant Placeres
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (
raised. However, counsel requested we review
sealed, confidential records for a possible violation of Brady v. Maryland (1963) 373
83 (Brady).
Respondent
concedes there was sentencing error as to defendant Cordova. We agree and remand for resentencing as to
defendant Cordova, but otherwise affirm his conviction. We affirm as to defendant Placeres, finding
no colorable issues under Wende,
including no Brady error.
FACTUAL AND
PROCEDURAL BACKGROUND
By
amended information filed May 5, 2011, defendant Cordova was charged with two
counts of assault with a firearm in
violation of Penal Code section 245, subdivision (a)(2) (counts 1 and 2), and
two counts of making criminal threats in violation of Penal Code section 422
(counts 3 and 4). It was also specially
alleged, as to all four counts, that defendant Cordova personally used a
firearm in the commission of the offenses within the meaning of Penal Code
section 12022.5, subdivision (a).
Defendant Placeres was jointly charged with defendant Cordova in counts
1 and 2, and was also separately charged with being a felon in possession of a
firearm under former Penal Code section 12021, subdivision (a)(1)
It was specially alleged that defendant Placeres had suffered a prior
felony conviction within the meaning of Penal Code section 667.5, subdivision
(b). Both defendants entered pleas of
not guilty to all charges.
The
felony charges arose from an incident that occurred on
the two victims, 15-year-old twin brothers
and Lyle I.,
title="">[2] who were walking home from school. Defendants drove up in a black Honda. Defendant Placeres was driving and defendant
Cordova was in the front passenger seat.
Defendant Cordova made repeated verbal threats to the brothers,
including threatening to shoot them while pointing a gun directly at them. After defendants drove off, the brothers ran
home and called 911. Later that same
day, officers from the Baldwin Park Police Department located and arrested defendant
Cordova near defendant Placeres’s residence, and also found defendant Placeres
inside his garage with another male, and several females. Defendant Placeres was placed under arrest. A black Honda was located on the property and
a gun was found inside the garage.
At
the start of the jury trial, counsel for defendants each made various motions
to exclude evidence. In particular,
defendant Cordova moved to exclude all gang evidence as irrelevant and unduly
prejudicial because of the lack of any gang enhancement allegations. The court denied the motion, stating the
prosecution was required to establish “sustained fear†as an element of the
criminal threat charges and that the gang references therefore appeared
admissible. However, the court invited
defense counsel to renew the motion depending on what evidence ultimately was
offered.
Defendant
Placeres requested the prosecution be ordered to produce a booking photo and
“rap sheet†for Jaime Hurtado, the other male detained in Placeres’s garage on
the day Placeres was arrested. The
prosecution opposed, arguing there was no evidence linking Mr. Hurtado to the
assaults and threats on the brothers.
The court denied the motion, explaining that “[b]ooking photos and rap
sheets of non-appearing non-witnesses would not appear to be of a nature of
evidence that would help the jury resolve any of the issues in our case. I’m not going to order it on the record I
have before me.â€
Lorenzo
was the first witness to testify.
Lorenzo testified that, on March 14, 2011, he was walking home from
school with his twin brother, Lyle, in the city of Baldwin Park. As they approached an intersection, a black
Honda pulled up to them. He remembered
the car had four doors and the back windows were tinted. Defendant Cordova, whom the brothers knew
from a neighborhood boxing gym, got out of the Honda, walked up to them, and
said, “How you doin’?†or “What’s up?â€
Cordova also said “East Side,†which Lorenzo understood to mean the East
Side gang in Baldwin Park. Defendant
Cordova then claimed the boys’ father had pointed a gun at Cordova’s
cousins. Cordova said he was going to
kill the brothers because of what their father allegedly had done. Defendant Cordova then got back in the
passenger side of the Honda. Lorenzo and
his brother started to walk away.
Instead
of driving away, the Honda drove up alongside Lorenzo and Lyle. Lorenzo heard defendant Cordova ask the
driver for a gun. The driver reached
down near the pedals and handed something to defendant Cordova. Lorenzo heard the driver tell Cordova to not
stick the gun out the window, so Cordova rested the gun on the door frame,
pointing it directly at the brothers.
The gun appeared to be a chrome revolver that looked like “a cowboy
pistol†or pistol used in movie westerns.
Defendant Cordova again threatened to shoot the brothers, and Lorenzo
pled with him not to shoot. As the Honda
drove off, defendant Cordova once again yelled “East Side†to Lorenzo and his
brother. Lorenzo and Lyle ran home, told
their father what happened and called 911.
Lorenzo
testified he believed defendant Cordova’s threats were real, he was scared, and
he took the gang reference as a specific threat. Lorenzo was scared to testify. During his testimony, the 911 call was played
for the jury and Lorenzo identified his voice from the audiotape. He also identified the gun recovered from
defendant Placeres’s garage as looking like the gun pointed at them by
defendant Cordova, and confirmed the pretrial identifications he made of both
defendants from six-pack photographic cards shortly after the incident.
Lyle’s
testimony regarding the incident was substantially consistent with his
brother’s testimony. Lyle recalled that
when defendants initially pulled up next to them in the car, defendant Cordova
flashed his “gang sign†in addition to claiming “East Side.†Lyle demonstrated the gang sign by holding
his right hand out horizontally, with the three middle fingers extended. Lyle identified defendant Cordova in court
and said he looked the same way on March 14, 2011, except that his hair was
grown out, because he used to be “like bald.â€
Lyle
testified that defendant Cordova claimed their father had shot at Cordova’s
cousins and that Cordova was therefore going to shoot them. Lyle tried to explain their father had only
confronted the cousins for shooting pellet guns at Lyle and Lorenzo’s younger
brothers. Defendant Cordova then
returned to the Honda. Lyle thought he
was leaving, so he and Lorenzo started back down the sidewalk. However, defendants then pulled up alongside
the brothers again. Lyle saw the driver
hand something to defendant Cordova, who was in the front passenger seat. Cordova pulled a little rag off of a silver
or chrome-colored gun and pointed it out the window at him and his
brother. Defendant Cordova threatened to
kill them. He was only about five feet
away from the brothers when he did so.
Lyle
identified the gun recovered from defendant Placeres’s garage as looking like
the gun defendant Cordova used to threatened them, but said he thought it
seemed a little smaller than he remembered.
Like Lorenzo, Lyle also confirmed his pretrial identifications of both
defendants from six-pack photographic cards.
Lyle
testified he knew East Side or East Side Bolen to be a Baldwin Park gang, as he
had lived in Baldwin Park most of his life.
He was scared when defendant Cordova claimed his gang and threatened him
and Lorenzo, because he understood Cordova to be a gang member, took his
threats seriously, and was afraid that he or other gang members would come to
their house. After the incident, Lyle
received a call on his cell phone from defendant Cordova, who was cussing and
called Lyle a “little bitch.†Lyle was
scared to testify because of the threats, and said his family planned to move
away from Baldwin Park.
Officer
Jessica Serrano of the Baldwin Park Police Department responded to the boys’
911 call and went to their home to interview them. Officer Serrano testified that both brothers
appeared frightened when she arrived.
Both Lorenzo and Lyle told Officer Serrano that defendant Cordova had
claimed his East Side gang during the incident.
She also explained that Lyle reported to her later on that he had
received a phone call from defendant Cordova in which he said: “[Y]ou better be on the run, I’m gonna shoot
you, this is East Side Bolen.â€
Corinna
Sanchez, defendant Cordova’s former girlfriend, also testified. She explained that in the late afternoon of
March 14, 2011, she went with Cordova, her sisters and a friend to defendant
Placeres’s residence because her friend wanted to get a tattoo. Ms. Sanchez stated she saw a gun in the
garage that afternoon, and that she let defendant Cordova borrow her cell phone
to make a phone call. Cell phone
records, introduced through Verizon Wireless employee Jody Citizen, showed that
phone calls were made from Ms. Sanchez’s cell phone number to Lyle’s cell phone
number on that date.
Officer
Adam Acuna, also of the Baldwin Park Police Department, went to defendant Placeres’s
residence on March 14, 2011, after he received a dispatch call to perform a
“location check for suspects.†He, along
with several other officers, located defendant Placeres, as well as Jaime
Hurtado and several females inside the garage at the residence. In Officer Acuna’s search of the garage, he
found a chrome revolver with a black pistol grip. He also discovered a black Honda on the
property, which had a wristband inside bearing defendant Placeres’s name.
Officer
James Gallegos was familiar with defendant Cordova from previous encounters,
and while en route to defendant Placeres’s residence in response to the
dispatch call, he saw defendant Cordova on the street. Officer Gallegos testified he saw Cordova
shaking hands with another male, later identified as defendant Placeres. Officer Gallegos pulled his patrol car over
and detained defendant Cordova on the street.
Defendant
Cordova testified in his own defense. He
admitted he confronted Lorenzo and Lyle on March 14, 2011. Defendant Cordova said a friend, whom he
would not name or whose name he could not remember, had picked him up that
morning in a four-door, black Honda with tinted windows. They were driving to the store when he saw
Lorenzo and Lyle walking along the sidewalk.
He told the driver to pull over.
Defendant Cordova testified he got out of the car, went up to the
brothers on foot, said “what’s up†and then proceeded to ask why their father
had pointed a gun at his cousins. When
they denied their father had done so, he said he did not like them trying to
“bullshit†him, so he returned to the Honda to get the gun in the car, which
was a chrome revolver. Defendant Cordova
admitted he then pointed the gun directly at both brothers from inside the car,
and repeatedly told them he was going to shoot them. He said it was a “scare tactic†and that “I
was just trying to scare them.â€
Defendant
Cordova also admitted he called Lyle later on and that he had done so because
he was upset the brothers had called the police. He said he knew defendant Placeres was a gang
member, but denied knowing if he was a member of East Side Bolen, despite the
fact defendant Placeres had a tattoo across his forehead that said
“BOLEN.†Defendant Cordova also denied
he was a member of the East Side Bolen gang or one of the gang’s cliques known
as the Midget Charros, and denied ever saying “East Side†to Lorenzo and Lyle
when he confronted them. Defendant
Cordova admitted having several tattoos, including “ESBP†(short for East Side
Bolen Parque) on his chest, three stars behind his ear, and the initials “Mâ€
and “CS†on his feet, which stood for “Midget Charros.â€
The
prosecution offered several rebuttal witnesses, including Moises Garcia,
Officer Andrew Witty, and Detective Esteban Mendez. Mr. Garcia, a security officer for the
Baldwin Park School District, attested to a previous encounter with defendant
Cordova in which he flashed an East Side Bolen gang sign and was wearing
clothing referencing the East Side Midget Charros. Officer Witty of the Baldwin Park Police
Department testified to his contacts with defendant Cordova, just a couple of
months before the incident with Lorenzo and Lyle, in which defendant Cordova
flashed the East Side gang sign and admitted his membership in the East Side
Bolen gang.
Detective
Mendez, a gang detective for the Baldwin Park Police Department, testified as a
gang expert. Before he was allowed to
testify, the trial court allowed additional argument as to the admissibility of
his testimony, and specifically limited the scope of the testimony to exclude
various issues, including a field identification card documenting a police
encounter with defendant Placeres.
Detective
Mendez explained that East Side Bolen Parque or East Side Baldwin Park is a
documented criminal street gang in the City of Baldwin Park, and Midget Charros
is one of the gang’s known cliques. He
described the gang’s hand sign, with the middle three fingers forming a capital
letter “E.†Detective Mendez confirmed
that the East Side gang regularly makes criminal threats, and commits violent
crimes, and stated his opinion that both defendants were active members. He explained that negative conduct directed
against a relative or family member of a gang member will be perceived as a
slight to the gang, and that gang culture ordinarily requires a retaliatory
response in order to maintain intimidation and fear in the community, as well
as “respect.†Detective Mendez also
explained that gang members generally worked together and a gang member would
ordinarily bring along another gang member in carrying out acts of
crimes.
Following
deliberations, the jury returned a verdict finding defendant Cordova guilty on
counts 1 through 4, and finding true the personal use of a fireman allegation
as to all four counts. The jury found
defendant Placeres not guilty of the assault charges, but did find him guilty
on count 5, felon in possession of a firearm.
The jury also found true the special allegation that defendant Placeres
had suffered a prior felony conviction.
The
court imposed sentences in state prison of 18 years and four years on
defendants Cordova and Placeres, respectively.
Defendant Cordova’s sentence consisted of the upper term of four years
on count 1, identified as the base count, plus the upper term of 10 years on
the firearm enhancement. A seven-year
sentence on count 2 was stayed pursuant to Penal Code section 654. And, consecutive two-year terms, consisting
of one-third the middle term on the substantive offense of making a criminal
threat, and one-third the middle term for the firearm enhancement, were imposed
on counts 3 and 4. Defendant Placeres’s
sentence of four years was calculated as follows: the upper term of three years on the
substantive offense, plus one year for the prior conviction. Both defendants were awarded custody credits
and were ordered to pay various fines.
Both
defendants timely appealed.
DISCUSSION
Defendant
Brandon X. Cordova
Defendant Cordova
raises two issues on appeal. He contends
the trial court abused its discretion in allowing the prosecution to present
gang evidence which was irrelevant, cumulative and highly prejudicial. Defendant also argues the court committed
sentencing error under Penal Code section 654.
We find no evidentiary error, but conclude there was sentencing error
under section 654 and reverse for resentencing.
The
admission of gang evidence
Defendant argues
there was no evidence of a gang-related motive for the charged crimes and no
gang enhancement was alleged. Defendant
therefore contends the evidence of gang membership, gang tattoos, and gang
culture elicited from percipient witnesses as well as a gang expert, was
irrelevant to any material issue, was more prejudicial than probative, and
should have been excluded. We
disagree.
The principles
governing admissibility of gang evidence are settled. “Gang evidence is admissible if it is
logically relevant to some material issue in the case other than character evidence,
is not more prejudicial than probative, and is not cumulative.†(People
v. Avitia (2005) 127 Cal.App.4th
185, 192 (Avitia).) Gang evidence is inadmissible “if introduced
only to ‘show a defendant’s criminal disposition or bad character as a means of
creating an inference the defendant committed the charged offense. [Citations.]’
[Citations.]†(
In cases not involving a gang enhancement allegation, evidence of a
defendant’s gang membership is potentially prejudicial and should be excluded where
its probative value is minimal. (
1040, 1049.)
However, gang
membership may be properly admitted where relevant to the charged offense, even
in the absence of a gang enhancement. (
affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the like—
operandi, specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.â€
(Ibid., italics added.) The trial court’s admission of gang evidence
is reviewed for abuse of discretion, and its ruling “will not be disturbed in
the absence of a showing it exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a miscarriage of
justice.†(Avitia, supra, 127
Cal.App.4th at p. 193.)
The gang evidence
admitted below was logically relevant to a material issue—the element of the
victims’ fear in counts 3 and 4—and was neither cumulative nor more prejudicial
than probative. (Avitia, supra, 127
Cal.App.4th at p. 192; see also People v.
Mendoza (2000) 24 Cal.4th 130, 178-179 [gang evidence relevant to establish
element of fear in robbery count and not unduly prejudicial].)
In order to prove
the criminal threats charges in counts 3 and 4, the prosecution was required to
establish that defendant Cordova’s threats to Lorenzo and Lyle reasonably caused
them to be “in sustained fear for [their] own safety or for [their] immediate
family’s safety.†(Pen. Code, § 422,
subd. (a).) Both victims testified
defendant Cordova claimed his Baldwin Park gang by saying “East Side†when
initially confronting them, and also when leaving the scene. Lyle also testified that Cordova flashed a
gang symbol with his right hand, fingers extended out, basically in the shape
of an “Eâ€. Both brothers said they knew
defendant Cordova was a gang member, took his threats seriously, feared for
their safety, and also expressed fear about testifying. Lyle testified that their family was trying
to move away from Baldwin Park as a result of the incident.
We cannot agree
with defendant’s characterization of this evidence as only “marginally
probative†given the prosecution’s burden on counts 3 and 4, and the direct
relevance of establishing the reasonableness of the boys’ fears because of the
fact the threats had been made by a gang member. The gang evidence was significant to the
prosecution’s case as it bolstered the boys’ testimony regarding their stated
fears.
Moreover, the
additional gang evidence presented by the prosecution in rebuttal was also
properly admitted. Defendant Cordova
denied being a gang member. The testimony
of Mr. Garcia and Officer Witty was properly introduced as impeachment of
defendant Cordova. Detective Mendez’s
testimony about the common hand signs of East Side with the fingers shaped like
the letter “E,†and generally about gang culture corroborated Lorenzo and
Lyle’s testimony. Detective Mendez’s
testimony that gang members generally are motivated to commit crimes of
intimidation and retaliation against any individual for perceived slights to
members of the gang or to relatives of members, in order to not appear weak and
to garner “respect†in the community through fear, was probative of
motive. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 [because
“ ‘ “motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence†’ â€].)
In short, the
trial court did not exercise its discretion in an “arbitrary, capricious, or
patently absurd manner that resulted in a miscarriage of justice.†(Avitia,
extensive argument at various stages of the trial on the issue of admissibility
of the evidence, and was thorough in its efforts to tailor its rulings,
including limiting the scope of Detective Mendez’s testimony (e.g., excluding
the field identification card and related testimony concerning a prior incident
with defendant Placeres). And, assuming
any error could be found, it would be harmless.
The prejudicial effect of any evidentiary error is measured under the
standard set forth in People v. Watson
(1956) 46 Cal.2d 818 (Watson). The erroneous admission of evidence under
state law “results in a due process violation only if it makes the trial
Absent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson
test: The reviewing court must ask
whether it is reasonably probable the verdict would have been more favorable to
the defendant absent the error.†(
439, italics omitted.) We reject
defendant’s assertion that Chapman v.
California (1967) 386 U.S. 18 applies as defendant has failed to show the
admission of the gang evidence was so prejudicial as to give rise to a due
process violation.
Defendant admitted
to having pointed the gun directly at the brothers while threatening to shoot
both of them, he admitted threatening Lyle again by phone, and admitted he had
the specific intent to scare and intimate the brothers. There was solid evidence by both victims as
to the fear they experienced because of defendants’ conduct. Moreover, the fact the jury acquitted
defendant Placeres on counts 1 and 2 indicates they likely were not
prejudicially inflamed by the admission of the gang evidence. (See, e.g., People v. Garcia (2008) 168 Cal.App.4th 261, 278 [acquittal of
codefendant “strongly indicates†gang evidence was not unduly prejudicial and
that jury thoughtfully considered the evidence and court’s instructions].) Defendant Cordova has failed to show he would
have obtained a more favorable verdict in the absence of the gang evidence.
Penal Code
section 654
In sentencing
defendant Cordova, the trial court imposed 14 years on count 1 (assault with a
firearm against Lorenzo), consisting of the upper term of four years for the
assault (Pen. Code, § 245, subd. (a)(2)), and the upper term of 10 years on the
firearm enhancement (id., § 12022.5,
subd. (a)). The court then imposed seven
years on count 2 (assault with a firearm against Lyle), but stayed sentence
pursuant to Penal Code section 654. On
each of counts 3 and 4 (the criminal threats against each brother), the court
imposed two-year consecutive terms, consisting of one-third the middle term on
the offense, and one-third the middle term on the firearm enhancement (
sentence was 18 years, with custody credits of 179 days.
Respondent
concedes sentencing error pursuant to Penal Code section 654, arguing that
sentence should have been stayed on counts 3 and 4, but not stayed as to count
2. After initially arguing the sentence
should have been stayed on both counts 1 and 2, defendant Cordova agrees, in
his reply brief, that respondent’s position is correct. We also agree.
In relevant part,
Penal Code section 654 provides: “An act
or omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.†(
bars multiple punishments for separate offenses arising out of a single
occurrence where all of the offenses were incident to one objective.’ [Citation.]â€
(People v. Rodriguez (2009) 47
Cal.4th 501, 507.)
In
finding defendant Cordova guilty of making criminal threats in counts 3 and 4,
the jury also found true that he used a firearm in the commission of those
offenses. Therefore, the verdict on the
criminal threats counts, of necessity, can only be based on the threats made by
Cordova from the car while holding the gun,
and not on the alternative bases of
the initial threats on the sidewalk to both brothers or the later threats made
by cell phone to Lyle, neither of which involved direct use of a gun.
Defendant
Cordova’s threats from the car while pointing the gun at both victims was the
same conduct on which the assault with a firearm charges in counts 1 and 2 were
based, and on which the jury necessarily found defendant Cordova guilty. “ ‘The proscription against double punishment
in [Penal Code] section 654 is applicable where there is a course of conduct
which . . . comprises an indivisible transaction punishable under
more than one statute . . . . The divisibility of a course of conduct
depends upon the intent and objective of the actor, and if all the offenses are
incident to one objective, the defendant may be punished for any one of them
but not for more than one.’
[Citation.]
‘. . . [[T]o permit multiple punishments,] there must be
evidence to support a finding the defendant formed a separate intent and objective
for each offense for which he was sentenced.
[Citation.]’ [Citation.]†(People
v. Coleman (1989) 48 Cal.3d 112, 162.)
There
is no evidence defendant Cordova had separate intents or objectives in making
the threats when he was seated in the car pointing the gun directly at both
brothers. As defendant Cordova admitted
in his own testimony, his intent was to scare and intimidate the brothers by
such conduct. Accordingly, Penal Code
section 654 mandates that defendant Cordova be punished under Penal Code
section 245, subdivision (a)(2), the statute with a longer potential term of
imprisonment than Penal Code section 422.
And, the sentence on counts 3 and 4 must therefore be stayed.
In
contrast, the sentence on count 2 should not have been stayed. Penal Code section 654 has long been
interpreted as not barring multiple
punishments for a single act of violence against multiple victims, often
referred to as the multiple-victim exception.
(People v. Hall (2000) 83
Cal.App.4th 1084, 1086 (Hall); see also
People v. Brannon (1924) 70 Cal.App.
225, 235-236.) “ ‘A defendant who
commits an act of violence with the intent to harm more than one person or by a
means likely to cause harm to several persons is more culpable than a defendant
who harms only one person. . . .
Section 654 is not “. . . applicable where
. . . one act has two results each of which is an act of violence
against the person of a separate individual.†’ †(Hall,
supra, 83 Cal.App.4th at p.
1088-1089, quoting Neal v. State of
California (1960) 55 Cal.2d 11, 20-21.)
In
counts 1 and 2, the jury found defendant Cordova guilty of committing an
assault with a firearm against Lorenzo and an assault with a firearm against
Lyle, respectively. The testimony from
the victims was that defendant Cordova threatened both of them, pointing the gun at each brother, stating he would shoot them and that he would kill
them. Each brother testified to being
scared and fearful that defendant Cordova was serious and would carry out his
threats. Defendant Cordova’s conduct
resulting in an act of violence against two separate victims is properly
punished as two separate assaults with a firearm under the multiple-victim
exception to Penal Code section 654.
(See, e.g., People v. Prater
(1977) 71 Cal.App.3d 695, 699 [defendant properly sentenced on two counts of
assault with a deadly weapon for firing one bullet at the intended victim which
passed through that victim and hit and injured a second victim seated nearby].)
We
therefore reverse in part for resentencing.
On remand, the trial court shall stay imposition of sentence on counts 3
and 4 pursuant to Penal Code section 654, and shall exercise its discretion to
reconsider the sentence imposed against defendant Cordova on count 2, keeping
in mind that a section 654 stay is inappropriate on count 2.
Defendant
Carmello A. Placeres
Appointed counsel
for defendant Placeres filed a Wende
brief in which no issues were raised, with the exception of noting the
possibility of Brady error and
requesting this court to review the sealed materials in the record. The brief also included a declaration from
counsel that he reviewed the record and sent a letter to defendant explaining
his evaluation of the record. Counsel
further declared he advised defendant of his right, under Wende, to submit a supplemental brief within 30 days. Defendant did not file any supplemental brief
with this court.
Based on our
independent review of the record, we conclude there is substantial evidence in
the record to support defendant’s conviction under former Penal Code section
12021, subdivision (a)(1). (
331; People v. Scott (1978) 21 Cal.3d
284, 296.) No errors are apparent in the
record, including with respect to the court’s denial of defendant’s request for
discovery regarding Jaime Hurtado. Both
victims identified defendant Placeres from six-pack photographic cards as the
driver with defendant Cordova. Mr.
Hurtado was not similar in appearance to defendant Placeres or to the
description given by Lorenzo and Lyle of the driver who handed the gun to
defendant Cordova. There was no direct
or circumstantial evidence linking Mr. Hurtado to the gun used in the crimes
and found in defendant Placeres’s garage, other than that he happened to be in
the garage when the police arrived. (See
generally People v. Hall (1986) 41
Cal.3d 826, 833.)
We find no error
in the court’s discovery order, and a review of the sealed, confidential
transcripts reveals no Brady
error. The Brady hearings placed on the record on June 29 and June 30, 2011,
had nothing to do with Mr. Hurtado.
“Evidence is material under Brady
if there is a reasonable probability that the result of the proceeding would
have been different had the evidence been disclosed. [Citations.]
‘A “reasonable probability†of a different result is accordingly shown
when the government’s evidentiary suppression “undermines confidence in the
outcome of the trial.†[Citation.]’ [Citations.]
. . . Brady,
however, does not require the disclosure of information that is of mere
speculative value. ‘[T]he prosecution
has no general duty to seek out, obtain, and disclose all evidence that might
be beneficial to the defense.’
[Citations.] Brady did not create a general constitutional right to discovery in
a criminal case.†(People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472.) The record does not show any
We have examined
the entire record and are satisfied that appointed counsel fully complied with
his responsibilities. We conclude there
no arguable appellate issues. (
therefore affirm the judgment below.
DISPOSITION
The judgment as to
Brandon X. Cordova is reversed in part as to the sentence imposed and remanded
for resentencing. On remand, the court
shall stay imposition of sentence on counts 3 and 4 (criminal threats with
firearm enhancement; Pen. Code, §§ 422, 12022.5, subd. (a)). The court shall exercise its discretion to
reconsider its sentence on count 2, keeping in mind that a stay on count 2
pursuant to Penal Code section 654 is inappropriate. Following resentencing, the trial court is
directed to prepare and transmit a modified abstract of judgment to the
Brandon X. Cordova is affirmed.
The judgment as to Carmello A. Placeres is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
Penal Code section 12021 was repealed effective January 1, 2012, and reenacted
without substantive change as section 29800.
(Stats. 2010, ch. 711, § 6.)
name="_ftn2" title="">[2] We
refer to the minor victims by their first names to protect their privacy, and
suggest no disrespect by the informality.
