P. v. Cordova
Filed 7/3/13 P. v. Cordova CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GUILLERMO CORDOVA,
Defendant and Appellant.
B239492
(Los Angeles
County
Super. Ct.
No. TA116148)
APPEAL from
a judgment of the Superior Court
of
County, John T. Doyle, Judge. Modified with directions and, as so modified,
affirmed.
Barbara A.
Smith, 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, Scott A. Taryle and
David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant
Guillermo Cordova appeals his convictions for
a firearm, and conspiracy to commit murder.
The trial court sentenced him to a term of 25 years to life in
prison. Cordova contends the trial court
erred by failing to give a unanimity instruction; the abstract of judgment
contains clerical errors; and the trial court miscalculated his
merit, and we order the abstract of judgment modified. In all other respects, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
Viewed in accordance with the principles governing appellate
review (People v.
relevant to the issues presented on appeal established the following.
a.
Appellant Cordova was a member of the Compton Varrio Tortilla
Flats (CVTF) criminal street gang. In the summer of 2010, Los Angeles County
Deputy Sheriff’s Sergeant Jose Salgado received information that the gang was
“taxing,†or extorting money from, small businesses in areas the gang claimed
as its territory.
Antonio Cruz Vazquez (Cruz) worked
at “Roberto’s Auto Shop,†an auto body and paint business located on Alameda Boulevard in Compton. The shop was situated within the CVTF’s
territory. In June or July 2010, an
African-American CVTF gang member known as “Easy,†accompanied by a Hispanic
man, visited the body shop and spoke with the owner’s nephews. After the men left, one of the nephews told
Cruz that Easy and his companion had demanded a “commission†each month. They said they would be back to pick the
money up the following month. The men
had threatened that if they were not paid, the people at the shop “would suffer
the consequences.â€
A month later, Easy returned to the
shop. He again spoke to one of the
owner’s nephews and reiterated that there would be consequences for a failure
to pay.
On September
30, 2011, Easy and a fellow CVTF gang member demanded that Cordova “go shoot
somebody†in the auto body shop, in order to “scare†the business owners and
enable CVTF “[to] tax them.†Easy
outranked Cordova in the gang’s hierarchy.
Easy provided Cordova with a .22-caliber gun.
That afternoon, Cruz was working on
a Chevrolet Tahoe at the body shop.
Wilfredo Valle, another employee, was also present. Cruz saw Cordova walk past the shop, but paid
no attention. The body shop’s video
surveillance system recorded the afternoon’s events, and the video was played
for the jury. The video showed that at 16:12:26, Cruz was talking to his
boss near the Tahoe. Cordova emerged
from a side alley, took several steps into the shop’s yard area, pointed a gun
at Cruz, and retreated back into the alley, outside the video camera’s
range. Neither Cruz nor his boss saw
Cordova.
Two minutes later, Cordova reentered
from the same alley, walked into the middle of the shop’s yard, and pointed the
gun at Cruz, who was standing near the Tahoe.
Both Cruz and Valle testified that they saw Cordova point the gun at
Cruz’s chest from a distance of 15 feet away.
Cordova pulled the trigger, but the gun made clicking sounds and failed
to fire, indicating it had jammed.
According to Cruz and Valle, Cordova then attempted to “rack†the gun’s
slide, to unjam it. Cruz said,
“ ‘They want to kill me.’ †He
ran to a storage room outside the video camera’s range, locked the door, and
screamed for his boss to call police.
The video showed that Cordova then hurried back out of
the shop’s yard and into the alley.
Approximately three seconds later, he reentered the yard with the gun
raised, stepped toward the area where Cruz had fled, lowered the gun, and
stepped back into the alley area.
Cordova then left the shop, talked to Easy, and threw the gun in a
parking lot.
Both Cruz and Valle positively
identified Cordova as the gunman in pretrial
photographic lineups and at trial.
Sergeant Salgado conducted a
recorded interview of Cordova in January 2011.
Cordova initially denied, but eventually admitted, attempting to shoot
Cruz. He claimed the gang had threatened
to hurt his family if he refused to commit the shooting. A recording of the interview was played for
the jury.
b. Additional
gang evidence.
Sergeant Salgado testified as a gang expert at trial. He explained that gang members are generally
required to “put in work,†that is, commit crimes for the gang. Such “work†could include marking the gang’s
territory with graffiti, committing robberies and shootings, and extorting
money from businesses. Commission of
violent crimes such as shootings, carjackings, and murders increases a gang
member’s reputation and status within the gang.
If a gang member refuses to commit crimes for the gang, he is often
beaten by other gang members.
2.
Procedure.
Trial was by jury.
Cordova was convicted of three counts of attempted murder (Pen. Code, §§
664, 187, subd. (a)),
name="_ftnref2" title="">[2] three counts of assault with
a firearm (§ 245, subd. (a)(2)), and conspiracy to commit murder
(§ 182, subd. (a)(1)). The jury found
the attempted murders were willful, deliberate, and premeditated; Cordova
personally used a firearm in commission of the attempted murders and assaults
(§ 12022.5, subd. (a)); and all the offenses were committed for the
benefit of, at the direction of, or in association with, a criminal street gang
(§ 186.22, subd. (b)). The trial court
sentenced Cordova to 25 years to life in prison, with a minimum parole
eligibility date of 15 years. It imposed
a restitution fine, a suspended parole restitution fine, court operations
assessments, and a DNA fee. Cordova
appeals.
DISCUSSION
1.
The trial court did not
prejudicially err by failing to give a unanimity instruction.
a.
The People charged Cordova with three counts of attempted
murder, one for each time he entered or reentered the shop’s yard and pointed
the gun at Cruz. (See generally
109-110 [conviction for two counts of attempted murder permissible where the
defendant fired a shot at the victim’s car, and fired a second shot moments
later]; cf. People v. Trotter (1992)
7 Cal.App.4th 363, 367-368 [multiple punishment permissible where defendant
fired three shots at a pursuing officer in the same brief incident, and was
convicted of three counts of assault].)
The defense did not request, and the trial court did not give, a
unanimity instruction.
During deliberations the jury sent the
following question to the court: “In
counts 1, 2, 3 [w]e the jury need to know if one trigger pull constitutes one
count of attempted murder. Furthermore
if defendant is to be found guilty of all three counts, must he first pull
[the] trigger three times.†The trial
court sent back the following written answer: “He need not pull the trigger for
an attempt. It is for you to determine
what constitutes a completed attempt.â€
b.
Cordova argues that the trial court erred by failing to give,
sua sponte, a unanimity instruction on the attempted murder counts.
of the instruction was not prejudicial error.
A jury verdict must be unanimous in a criminal case. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.)
“As a general rule, when violation of a criminal statute is charged and
the evidence establishes several acts, any one of which could constitute the
crime charged, either the state must select the particular act upon which it
relied for the allegation of the information, or the jury must be instructed
that it must agree unanimously upon which act to base a verdict of
guilty.†(People v. Jennings (2010) 50 Cal.4th 616, 679; People v. Butler (2012) 212 Cal.App.4th 404, 425;
266, 274-275; People v. Melhado (1998)
60 Cal.App.4th 1529, 1534.) “ ‘A
unanimity instruction is required only if the jurors could otherwise disagree
which act a defendant committed and yet convict him of the crime
charged.’ . . . ‘[I]f
under the evidence presented such disagreement is not reasonably possible, the
instruction is unnecessary.’ †(
1508, 1518; People v. Champion (1995)
9 Cal.4th 879, 932, disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.) “In deciding whether to give the instruction,
the trial court must ask whether (1) there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime, or (2) the evidence
merely presents the possibility the jury may divide, or be uncertain, as to the
exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second,
it should give the unanimity instruction.â€
(Russo, at p. 1135.)
Cordova entered or reentered the shop yard, and appeared
on the video, three separate times. The
video, coupled with the witnesses’ testimony, showed that (1) Cordova
emerged from the alley, unobserved by Cruz, and pointed a gun at him. (2) Two minutes later he approached
Cruz, pointed the gun at him, pulled the trigger, and attempted to unjam the
gun by “racking†it. (3) As Cruz
fled, Cordova briefly reentered the alley and almost immediately walked back
into the shop’s yard, with the gun raised above his head; he then lowered the
gun to waist level. Based on these three
appearances in the shop yard,
counts of attempted murder. A unanimity
instruction was required only if there was a risk jurors could disagree on
which of Cordova’s actions in the three appearances amounted to attempted
murder.
Cordova argues that “[w]ithout a unanimity instruction,
it cannot be certain the jury agreed on the acts constituting each count of
attempted murder[.]†He urges that the
evidence suggested he did not pull the gun’s trigger in the first appearance,
and may have pulled the trigger multiple times in the second appearance.
court showed it was equating trigger pulls with attempts. He argues that the jurors could have
considered “the first appearance, or several distinct aspects of the second and
third appearances, as the basis†for the three attempted murder counts. Thus, different jurors might have found
different acts underpinned the three convictions. In his view, the “three convictions did not
necessarily (or even probably) correspond to [his] three appearances on the
videotape.â€
The People counter that a unanimity instruction was not
required because the prosecutor “elected which acts constituted which attempted
murder charges and carefully separated the three acts for the jury.†Further, in the People’s view the evidence
showed no more than three acts that could have constituted the three attempted
murders, and the jury must have unanimously agreed on the evidentiary basis for
the three counts.
name="_ftnref7" title="">[7]
Contrary to the People’s contention,
the prosecutor did not make a clear election.
The
prosecutor repeatedly stressed that Cordova had come in and out of the shop’s
yard three times, and pointed a gun at Cruz each time. But the prosecutor did not expressly
correlate each instance with each of the three attempted murder counts.
The verdict forms did not
specify that each count corresponded to a particular appearance. It is not impossible that a juror might have
concluded Cordova pulled the trigger more than once in one appearance, and
determined that each trigger pull amounted to a separate attempt. Nothing in the instructions prevented a juror
from doing so.
However, the fact it was technically possible for a juror
to employ such logic does not mean it was remotely likely. Assuming arguendo that a unanimity
instruction was required, its omission was harmless under any standard. (See, e.g., People v. Milosavljevic (2010) 183 Cal.App.4th 640, 647;
1537, 1545 [applying the Chapman v.
California (1967) 386 U.S. 18, reasonable doubt standard to the erroneous
failure to give a unanimity instruction, but observing split of authority on
the issue]; People v. Frederick (2006)
142 Cal.App.4th 400, 419; People v. Wolfe
(2003) 114 Cal.App.4th 177, 186.)
Although the prosecutor did not expressly make an election as to which
counts correlated to which acts, her argument repeatedly stressed Cordova’s
three appearances and implicitly correlated them to the three counts.
The prosecutor did not argue that multiple trigger pulls
in one appearance provided the evidence to support more than one attempted
murder count, and in our view most jurors would have found such a rationale
counterintuitive. Instead, the jury was
most likely to make the logical connection between the evidence adduced at
trial and the sequence of the charges, associating the first appearance with
the first count, the second appearance with the second count, and so on. The “prosecutor pointed to the evidence which
amply supported the number of counts. It
was not a random number†(People v.
Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1589), but was supported by
the evidence of the three appearances on the video.
Cordova is correct that it cannot be discerned from the
video whether, or how many times, he pulled the trigger in each appearance, nor
is it possible to determine from the video alone whether he attempted to “rackâ€
the gun. But for that very reason, the
jury would have been unlikely to convict him of all three attempted murder
counts unless it correlated each appearance with each count. The most logical interpretation of the
evidence, including the video, the witnesses’ testimony, and the Salgado
interview, was as follows. In the first
appearance, Cordova pulled the trigger but the gun jammed. He moved back into the alley to attempt to
fix the gun. He came back into the yard
and attempted to shoot at Cruz a second time, but the gun jammed again. In the third appearance, he reentered the
yard and looked for Cruz, but Cruz had already fled; he may or may not have
pulled the trigger. The jury’s question
to the court, and the court’s response that a trigger pull was not necessarily
required for each attempt, supports this interpretation. Viewing the totality of the evidence, it is
clear beyond a reasonable doubt that jurors would not have disagreed about
which acts Cordova committed, but nonetheless convicted him of all three
counts. Omission of the unanimity
instruction, if error, was harmless.
2.
At sentencing, the trial court selected count 9, conspiracy,
as the base count, and imposed a term of 25 years to life in prison, with a
minimum parole eligibility date of 15 years. On counts 1, 2, and 3, attempted murder, the
court imposed concurrent terms of life in prison, plus 4-year section 12022.5
gun-use enhancements, to run concurrently with the sentence on count 9. The court stayed the assault convictions
pursuant to section 654.
The abstract of judgment states that
for each of the attempted murder charges, Cordova was sentenced to a term of
life in prison without the
possibility of parole. However, by
statute the sentence for attempted willful, deliberate, premeditated murder is
life with the possibility of
parole. (§ 664, subd. (a).) Although the trial court stated the sentence
was simply “life,†in light of section 664, subdivision (a), it is clear the
court intended to impose sentences of life with the possibility of parole. Cordova argues, and the People concede, that
the abstract of judgment therefore contains a clerical error and must be
corrected. We agree, and order the
abstract modified. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
3.
The trial court correctly awarded Cordova 378 days of actual
presentence custody credit. (
1115, 1124.) The abstract of judgment,
however, erroneously reflects an award of 278 days of actual custody
credit. We order this clerical error
corrected. (People v. Mitchell, supra, 26 Cal.4th at p. 185;
1070, 1073.)
At sentencing, defense counsel
requested that Cordova be awarded 15 percent presentence conduct credits. The prosecutor questioned whether Cordova was
eligible for any conduct credit because he had been convicted of attempted
murder. The court took the matter under
advisement. The abstract of judgment
reflects that no presentence conduct credit was awarded. Cordova contends, and the People agree, that
he should have been awarded 56 days of presentence conduct credit. We accept the People’s concession.
Section 2933.1 provides that any
person who is convicted of a felony offense listed in subdivision (c) of
section 667.5 shall accrue no more than 15 percent of worktime credit. Attempted murder is one of the offenses
listed in section 667.5, subdivision (c).
(§ 667.5, subd. (c)(12).) Section
2933.2, subdivision (a), prohibits an award of conduct credit when the
defendant has been convicted of murder.
However, Cordova was convicted of attempted murder, not murder. By its plain language, section 2933.2 does
not apply. (See generally
defendant convicted of conspiracy to commit a felony shall be punished “in the
same manner and to the same extent as is provided for the punishment of that
felony.†Cordova was therefore entitled
to accrue presentence conduct credit at the 15 percent rate, for a total of 56
days. (People v. Guillen (1994) 25 Cal.App.4th 756, 764;
810, 815-816.)
DISPOSITION
The clerk of the
superior court is directed to correct the abstract of judgment to reflect (1)
concurrent sentences of life with the possibility of parole on counts 1, 2, and
3; (2) actual custody credits of 378 days; and (3) presentence conduct credits
of 56 days, for a total of 434 days. The
clerk is directed to forward the modified abstract of judgment to the
Department of Corrections. In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
Salgado also testified regarding the CVTF’s characteristics, primary
activities, territory, rivals, and predicate crimes, as well as Cordova’s
membership in the gang. Because Cordova
does not challenge the sufficiency of the evidence to establish the gang
enhancement, we do not detail this evidence here.
further undesignated statutory references are to the Penal Code.
