P. v. Guerra
Filed
10/16/12 P. v. Guerra CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and
Respondent,
v.
FERNANDO GUERRA,
Defendant
and Appellant.
B239020
(Los Angeles County
Super. Ct. No. MA050224)
APPEAL from a judgment of the Superior Court of
County. Kathleen
Blanchard, Judge. Affirmed.
Sally Patrone Brajevich, 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, Mary Sanchez and Johathan M. Krauss, Deputy Attorneys
General, for Plaintiff and Respondent.
* * * * * * * *
A
jury convicted appellant Fernando Guerra with one count of
count of shooting at an unoccupied
vehicle, and two counts of assault with a firearm. The jury also found gang allegations to be
true. Appellant contends (1) the trial court abused its discretion when it
ordered him to wear a stealth belt tying him to his chair; and (2) there was
insufficient evidence to convict him of count 1, shooting at an inhabited
dwelling. We affirm.
STATEMENT OF
FACTS
On August
27, 2010, at 6:30 p.m., Leticia Gonzalez (Leticia) was in her car with her
brother, Agustin Gonzalez (Agustin),
and her boyfriend, Antonio Harris, at the drive-through dairy on Avenue I near
the Friendly Village trailer park in Lancaster. Three male Hispanics in a gold or tan car
pulled up to Leticia’s car while she was getting gas and started “talking messâ€
to her, Agustin, and Harris. At trial,
Leticia identified Steven Carvajal as the front seat passenger of the tan
car. She also believed appellant might
have been in the driver’s seat. Harris
identified Carvajal as the front seat passenger and appellant as the driver of
the tan car.
Leticia was stopped at the dairy gas
pumps and asked Harris for gas money.
Right after, Carvajal said to Leticia in a loud voice, “What the f‑‑‑
did you say? This is M.T.C.†Agustin and Harris got out of Leticia’s car
and asked the three males in the tan car to stop disrespecting Leticia. An argument between Harris, Agustin, and
Carvajal ensued, and Leticia eventually tried to get Harris to stop arguing
with Carvajal because she saw that Carvajal was carrying a gun. The man in the back seat said to Carvajal,
“It’s nothing. Just go, fool. Just go.â€
The tan car then drove around the gas pumps one time, stopped, and the
passenger “cussed a little more†at Harris, Agustin, and Leticia. When the car came back around Leticia noticed
the barrel of the gun that Carvajal had pulled from under his seat. Leticia told Agustin and Harris to get back
into her car, and apologized to the men in the tan car. The tan car left the dairy and headed toward
the direction of Friendly Village.
At approximately 6:45
p.m.,
Arturo Gonzalez (Arturo), no relation to Leticia and Agustin,
saw a gold and tan car approach Friendly Village and heard the driver of the
car yell, “F‑‑‑ Cookie Monsters.†“Cookie Monsters†is a derogatory name for
the Crazy Minded street gang, of which Arturo is a
member. Arturo knew that members of the
Crazy Minded gang lived in the Friendly Village trailer park and they were
enemies with other gangs in the Antelope Valley, including M.T.C. Arturo ran when he heard the driver of the
tan car yell because he was afraid he was going to be shot.
Leticia and Harris were driving to
Leticia’s mother’s house in Friendly Village when she saw Arturo and
another man running away from the same tan car she had seen at the
drive-through dairy earlier. Leticia
noticed the men in the car were the same ones that had argued with her,
Agustin, and Harris earlier. Arturo ran
into Leticia’s mother’s house. The tan
car parked on the same street as her mother’s house. Carvajal got out of the car and tried to go
through the back door of the mother’s house, but he could not open the back
door. He got back into the car, and the
car drove around and parked behind Leticia’s car. Leticia, Agustin, and Harris got out of
Leticia’s car and walked toward Leticia’s mother’s house when they saw her
mother run out of the house screaming, “Leti, they tried to get in the
house.†Carvajal then took out a shotgun
and pumped it. He pointed the gun at
Leticia and her family as they were running away and fired the gun
approximately four times. Carvajal then
got back in the car, and it drove off.
Around 9:30 p.m. that same night, Leticia had
left and was returning to her mother’s house with Harris. Her father’s truck, a Chevy Silverado, was
parked in the driveway on the side of the house. As Leticia and Harris were walking up to the
house, they saw Carvajal and three other men walking toward the house. When the men were about 26 or 27 feet from
the house, Carvajal started shooting.
She testified: “I don’t know if
he was aiming directly at my mom’s, but it shot ‑‑ I don’t know if
the truck maybe blocked it, but the truck blocked the shots to my mom [because]
the truck is right in front of my mom’s room.â€
She also said: “I don’t know if
they were literally trying to shoot somebody, but they were shooting towards my
mom’s room. . . .
[¶] . . . [¶]
. . . They were shooting at our house. If our truck ‑‑ our truck is
slanted and our house is like this (indicating). So the tip of the truck is at my mom’s
room. . . . [¶] . . . [¶]
[He shot at] the house, not towards.
They were shooting, aiming towards inside our house, yes.†At the time Carvajal was firing the gun,
Leticia’s mother and father, her three brothers, and her niece were all in the
house.
After Carvajal fired the shotgun, he
and the other three men jumped over a little wall separating Leticia’s mother’s
house from the street and ran off. A
neighbor called the police because Leticia and her family were worried that if
they did so, Carvajal would “just keep coming back.â€
Deputies Jeremi Edwards and Eric
Licciardi arrived at the scene shortly after the shooting. Leticia met the officers outside her mother’s
house and they realized that her father’s truck had a bullet hole near the
headlight and a second one near the tire.
Deputy Edwards recovered two shotgun shell casings, one from the gutter
in front of the house, and the other from the street a short distance
away.
At approximately 9:00 p.m. that same
night, Deputy Robert Heins and his partner received a call over their radio
regarding a shooting at Friendly Village and a description of the individuals
involved and the tan car they were driving.
At approximately 11:00 p.m., Deputy Heins saw the
vehicle described in the report pulling into a driveway and witnessed Carvajal
and Angelo Hernandez get out and run into a house. Deputy Heins identified appellant as the driver
of the vehicle. Appellant and the front
seat passenger got out of the car after Carvajal and Hernandez, but the
deputies stopped appellant and the passenger before they could run. After ordering Carvajal and Hernandez to come
out of the house to no avail, the deputies entered the house and found them, a
shotgun, a rifle, and shotgun ammunition.
Appellant, Carvajal, and Hernandez were later taken to a field showup
where witnesses identified Carvajal and appellant as the men involved in the
shooting earlier in the night.
The information charged appellant
with one count of shooting at an inhabited dwelling (Pen. Code, § 246),
one count of shooting at an unoccupied vehicle (§ 247, subd. (b)), and two
counts of assault with a firearm (§ 245, subd. (a)(2)). It alleged that the offenses were committed
for the benefit of a criminal street gang.
Codefendants Hernandez and Carvajal were also charged in all four
counts. They are not parties to this
appeal. Early in the trial, after the
jury was seated but before opening statements, Hernandez reached a plea
agreement with the People. In the middle
of the prosecution’s case, due to a conflict within the Alternate Public
Defender’s Office, the court declared a mistrial as to Carvajal.
After the jury convicted appellant
on all counts and found the gang allegations true, the court sentenced him to a
total determinate term of 10 years eight months in state prison, followed
consecutively by an indeterminate term of 15 years to life in state prison. Appellant timely appealed.
Require Reversal
Appellant contends that the trial
court committed prejudicial error when it ordered him to wear a stealth belt
restraining him to his chair during trial.
Because the trial court did not follow the standard our Supreme Court
has set out for stealth belt restraints (People
v. Cox (1991) 53 Cal.3d 618, 651(Cox)),
we conclude the trial court erred.
However, we find the error was harmless. We therefore decline to reverse his conviction
on this basis.
A. Background
Right before the trial started, the
trial court stated its intention to have appellant, Carvajal, and Hernandez
stealth belted to their seats throughout the trial. The belt strapped appellant and his
codefendants to their seats but was not a stun belt. The court explained that “from the outside,
it looks just like a leather belt. But
what it will do is it will attach to the chair behind [the defendants]. There’s a metal hook there. The jury won’t be able to see it at all. [The defendants] won’t be handcuffed in front
of the jury. [They] won’t be shackled in
any way.†The court stated that it was
stealth belting appellant and his codefendants because there had been various incidents
of witness intimidation. Carvajal’s
uncle had approached and intimidated a witness inside the courthouse. Another witness was waiting for the bus
outside the courthouse after testifying at an earlier hearing when she was
attacked and called a snitch by three female Hispanics. Additionally, the court noted that Hernandez
had three disciplinary reports stemming from his time in county jail, and
Carvajal had a citation in the county jail for insubordination. The court also noted the “setup of [the]
courtroom with there being three [defendants] and with a small courtroom,†the
stealth belt gave “a little bit of added security.†Finally, the court cited the charges and
allegations and the length of time each defendant was facing as factors in its
decision. All three defendants objected
to the stealth belting.
After
Hernandez accepted a plea agreement, leaving just Carvajal and appellant on
trial, Carvajal’s counsel objected again, stating, “But my client’s belt, you
can still see ‑‑.†The court
responded: “[T]hey can’t see the
restraint. The restraint is in the
back. The chairs are fully backed. There’s no way they can see the
restraint. [¶] . . . To the extent you can
see the belt from the front, it looks like a belt one would wear with their
pants. It’s simply a black strip. [¶]
. . . The restraint part of [the belt] is not in any way
visible to the jurors in this case. It
is a restraint that is welded to the bottom seat portion of the chair they’re
sitting back in. Their chairs -- the
chairs have backs that cover the restraint.â€
B. Analysis
We review the trial court’s decision
to impose the stealth belt on appellant for abuse of discretion. (People v. Duran (1976) 16 Cal.3d 282,
291.) “[A] defendant cannot be subjected
to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a
manifest need for such restraints.â€
(Id. at
pp. 290-291.) “‘Manifest need’
arises only upon a showing of unruliness, an announced intention to escape, or
‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which
disrupts or would disrupt the judicial process if
unrestrained . . . .’
[Citation.] Moreover, ‘[t]he
showing of nonconforming behavior . . . must appear as a matter
of record . . . .’â€
(Cox, supra, 53 Cal.3d 618, 651.)
That a defendant has been charged
with a violent crime does not establish a sufficient threat of violence or
disruption to justify physical restraints during trial, nor does a courthouse
layout establish such. (People v.
Seaton (2001) 26 Cal.4th 598, 652 (Seaton)
[trial court abused its discretion in shackling defendant when shackling was
based on the nature of the charged crime (violent murder) and the fact that the
courtroom door was less than 40 feet from the public entrance].) There must be some “individualized suspicionâ€
that the defendant will engage in nonconforming conduct. (Ibid.) Thus, the mere fact that the defendant is a
prison inmate, standing alone, does not justify the use of physical restraints. (People v. Miller (2009) 175
Cal.App.4th 1109, 1114.)
In the case at bar, there was no
showing of a manifest need for restraints with respect to appellant. There was no evidence that he had been unruly, announced an intention to escape, or
had engaged in any other “nonconforming conduct.†(Cox, supra, 53 Cal.3d at p. 651.)
Evidence of his codefendants’
nonconforming conduct while in jail did not establish an individualized
suspicion as to appellant. (
Moreover, there was no evidence that he had intimidated the witnesses or
directed someone else to intimidate the witnesses. And appellant’s charges, the length of time
he was facing, and the fact that the courtroom might have been small were
insufficient to establish a manifest need.
(Ibid.; compare
restraints when defendant had previously attempted to escape and continued to
express plans to escape, had been violent with his attorney, had been violent
with other inmates, and had threatened the trial judge and officers].)
Accordingly, the trial court abused its discretion in imposing the
stealth belt on appellant.
Still, the
error was harmless and does not require reversal. (Seaton,
supra, 26 Cal.4th at pp. 652-653
[concluding that the defendant failed to show prejudice and reversal was not
warranted].) “[W]e have consistently held that courtroom shackling, even if error, was
harmless if there is no evidence that the jury saw the restraints, or that the
shackles impaired or prejudiced the defendant’s right to testify or participate
in his defense.†(
v. Anderson (2001) 25
Cal.4th 543, 596.) Here, although Carvajal’s defense
counsel suggested that the jury could see the restraint, the court disagreed,
stating that the stealth belt looked like a belt one would wear with pants, to
the extent the jury could see it at all.
There was no evidence that the jury understood the belt to be a
restraint. Furthermore, appellant offers
no evidence that the belt impaired his ability to testify or participate in his
defense. Under any standard of
prejudice, the use of the belt did not prejudice appellant.
2. Sufficient Evidence Supported Appellant’s
Conviction for Shooting at an Inhabited Dwelling
Appellant argues that
the evidence was insufficient to convict him of shooting at an inhabited
dwelling because the evidence showed that the shooter targeted the Chevy truck,
not the house. We disagree.
When a
criminal defendant claims on appeal that his conviction was based on
insufficient evidence, we “must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence ‑‑ that is, evidence which is reasonable, credible, and of
solid value ‑‑ such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.â€
(People v. Johnson (1980) 26
Cal.3d 557, 578.) We “must accept
logical inferences that the jury might have drawn from the circumstantial
evidence.†(People v. Maury (2003) 30 Cal.4th 342, 396.)
Section 246 makes it a felony to
maliciously and willfully discharge a firearm at an inhabited dwelling
house. Shooting at an inhabited dwelling
house is a general intent crime. (
1344, 1356.) As with all general intent
crimes, the question is whether the defendant intended to do the proscribed
act, not whether the defendant had the “specific intent to achieve a particular result (e.g., strike
an inhabited or occupied target, kill or injure).†(Id.
at p. 1357.) Thus, “section
246 is not limited to shooting directly
at an inhabited or occupied
circumstances showing a conscious disregard for the probability that one or
more bullets will strike the target or persons in or around it.†(Id.
at pp. 1355-1356.) Moreover, the
statute does not require that the house actually be hit by gunshot. (Id.
at pp. 1353, 1362 [substantial evidence supported the § 246
instruction even when no evidence that the building was hit].)
People v. Chavira (1970) 3
Cal.App.3d 988 (Chavira) is
instructive. In
fired several shots at persons “congregated
an inhabited dwelling. (Id. at p. 993.) The defendant argued that the evidence was
insufficient to support his section 246 conviction because he did not fire
directly at the dwelling, but only at the persons gathered outside of it.
“fusillade of shots
directed primarily at
persons standing close
to a dwelling,â€
the jury was “entitled to
defendants] were aware
of the probability
that some shots
would hit the
building and that
they were consciously
indifferent to that
result,†and thus they had an intent sufficient to
satisfy section 246. (Chavira, at p. 993, fn. omitted.)
The
evidence here was sufficient to support appellant’s conviction, as in
Leticia said that appellant was shooting at her mother’s house. The truck contained bullet holes. The evidence showed the truck was hit because
it was parked right on the side of the house and blocked the shots to the
house. Leticia said several times that
the shooter was aiming for the house. In
other words, the evidence showed the shooter was shooting either directly at
the house or in such close proximity to it that he exhibited a conscious
disregard for the probability that a bullet would strike the house and its
inhabitants.
DISPOSITION
The judgment is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
We refer to Agustin and Leticia
by their first names rather than their surnames to avoid confusion between the
two. We do not intend this informality
to reflect a lack of respect.
As with Leticia and Agustin, we
do not intend our use of Arturo’s first name to reflect a lack of respect, but
use it for the sake of clarity.
