P. v.
Filed 4/22/13 P. v. Leon CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS LEON, Defendant and Appellant. | B232418 (Los Angeles County Super. Ct. No. BA366993) |
APPEAL from
a judgment of the Superior Court
of
County.
Judith L. Champagne, Judge.
Affirmed.
Chris R. Redburn, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Douglas Leon appeals from his
conviction of first degree murder and
attempted extortion.
name="_ftnref1" title="">[1] He contends the trial court erred in (1)
denying his Batson-
motion; (2) excluding evidence that would have impeached the prosecution’s gang
expert; (3) allowing the prosecutor to pose an improper hypothetical; and
(4) imposing large fines without submitting the underlying factual issues
to the jury. He also contends there was
finding of premeditation. We affirm.
Viewed in accordance with the usual
rules on appeal (People v. Zamudio
(2008) 43 Cal.4th 327, 357-358), the evidence established that on January
15, 2010, defendant was a member of the criminal street gang known as the
Maywood Locos, which claimed the 5500 block of Gifford Avenue in the City of
Maywood as their territory and considered the Orchard Locos to be their
rivals. At about 9:30 that Friday night,
16-year-old Bryan and two friends, 17-year-old Angel and 15-year-old Tiffany,
were waiting to get into a party at that location when defendant fatally shot
Bryan five times. Fifteen-year-old
Andy M. was shot in the leg as he was running from the scene.
Eyewitness
Testimony
Bryan’s
childhood friend, Angel, testified that he and his girlfriend, Tiffany, walked
with Bryan to the party that night.
party and approached the threesome as they were waiting to get in. Defendant asked Angel and Bryan, “Where you
from?†Angel replied, “I don’t bang. I
ain’t from nowhere.†Bryan, who was
standing to Angel’s left, did not respond.
As he turned to speak to Tiffany on his right, Angel kept an eye on
Bryan and defendant, because he was concerned.
Angel saw defendant move behind Bryan’s
left shoulder, pull a gun out of his waistband with his right hand and fire
five shots toward Bryan and Angel. Bryan
jerked back and when Angel turned he saw Bryan
on the ground and defendant running north still holding the gun.
Angel and Tiffany ran south, to a
house on the corner of Gifford Avenue
and 56th Street, where
Angel saw another young man who had been shot in the leg enter. From there, Angel called 911 and reported
that a gang member had just shot his best friend. While waiting outside for the police to
arrive, Angel saw a car pull up in front of the house; defendant, still holding
a gun, got out of the front passenger seat and another person got out of the
backseat of that car; Angel made eye contact with defendant. At the sound of the approaching police cars,
defendant and his companion got back into the car, which drove away. Defendant was wearing a black Dodger’s jacket
over a black T-shirt; he had a gang tattoo on his forehead but Angel could not
recall what it said. From a photographic
lineup, Angel identified defendant as the shooter.
The account of the incident Tiffany
gave to officers at the scene was the same as Angel’s in all material
respects. She recalled that after Angel
and Bryan said they were not in a gang, the man who had approached them walked
past, then turned and fired five shots in their direction. Tiffany described the shooter as an 18- to
20-year-old, 130 to 150 pounds, 5’8†male Hispanic with acne, a shaved head and
the words “Maywood Loco†tattooed on his forehead; he was wearing a black
Dodger’s jacket, white T-shirt and pants of an unknown color.
Later that same night, Sergeant
Frank Garcia tape recorded two interviews with Tiffany. From a photographic lineup, she identified
defendant as the shooter. She recalled
that defendant pulled out a silver gun and shot Bryan. Tiffany did not remember seeing anyone being
pushed and did not think Bryan said anything to upset defendant. She also saw the brown car, in which she
believed defendant was riding, pull up in front of the second house.
Contrary to what she said in her
tape-recorded interview, Tiffany testified at trial that she never saw a gun
but believed the shooter, who she did not identify, was a person with a tattoo
because that person was standing in front of his three companions. Tiffany did not want to testify against
defendant because she was afraid of repercussions from his gang.
Sixteen-year-old Kevin told the
police officer who interviewed him at the scene that he was one of three D.J.’s
at the party that night. Kevin was
familiar with the Maywood Locos from living in the neighborhood and knew that
defendant was a Maywood Loco. Kevin had
seen defendant with a chrome automatic pistol in his waistband at several
parties in the past and on the night in question.
In a tape-recorded interview that
same night, Kevin told Homicide Detectives Ralph Hernandez and Kevin Lowe that
he saw defendant shoot Bryan. Kevin
recounted that sometime before the shooting, defendant asked Kevin, “What’s up,
man? You bang?†Kevin recognized the gun defendant was
holding at the time as the same gun he had seen defendant holding at prior
parties. Kevin responded that he was
“not from no where. I said, I don’t mess
with Maywood Locos.†Defendant then
announced that he was going to be “charging,†which Kevin understood to mean
collecting admission from people entering the party.
approach Bryan, Angel and Tiffany. He
heard defendant ask them, “You bang?†In
response, Bryan tried to “act all hard†and pushed defendant; defendant
responded by shooting Bryan in the leg and then the head. Kevin heard as many as 10 gunshots. From a
photographic lineup, Kevin identified defendant as the shooter.
At trial, Kevin denied seeing the shooting, seeing
defendant holding a handgun that night or at any other time, and that he had
identified defendant as the shooter.
Andy, who was shot in the leg in
the incident, identified defendant as the shooter from a photographic lineup
shown to him by police at the hospital the next day. During his interview with police, he stated
Bryan claimed to be from the Orchard Locos gang.
At trial, Andy maintained that he
never saw the shooter but heard an argument involving two males followed by
silence and then six gun shots. Andy did
not recall talking to detectives at the hospital the next day or identifying
defendant as the shooter from a photographic lineup.
Gang
Expert Testimony
Former Maywood police officer and
current Deputy Sheriff Andrew Serrata testified as the prosecution’s gang
expert. Serrata explained that when a
gang member asks someone, “Where are you from?†it is a challenge. The gang member is trying to ascertain
whether the other person is in a rival gang.
The answer, even if the person denies gang membership, is often followed
by violence. “Snitches†are threatened,
assaulted and sometimes killed by gang members.
It is not uncommon for witnesses in gang-related cases to be reluctant
to testify for fear of retaliation.
Deputy Serrata was familiar with
the Maywood Locos from being in school with members of that gang as well as
from his work as a police officer. In
2005, Serrata was assigned to monitor the Maywood Locos. Since then, he has investigated about
200 crimes involving that gang. The
Maywood Locos and the Orchard gang are rivals.
Serrata had known defendant for two or three years and knew him to be a
member of the Maywood Locos.
The primary activities of the
Maywood Locos are narcotics sales, assault, robbery, burglary, assault with a
deadly weapon, attempted murder and murder.
Deputy Serrata explained that Maywood Locos have to earn their tattoos:
a new member is allowed to get a small tattoo, usually the letter “Mâ€; the more
work that person puts in on behalf of the gang, the more and larger tattoos
they can get; the “Maywood†tattoo on defendant’s forehead indicates that he is
a shot caller.
Based on a hypothetical posed by
the prosecutor that mirrored the facts of the case, Deputy Serrata stated his
opinion that the murder and attempted murders were committed for the benefit
of, at the direction of or in association with a Maywood Locos gang member.
Defense counsel posed his own
hypothetical: if an Orchard Street gang
member enters into Maywood Locos territory, is asked by a Maywood Locos gang
member where he is from, responds by identifying himself as a member of Orchard
Street and pushing the Maywood Locos gang member, “Do you, hypothetically
speaking, anticipate some altercation occurring as a result of that
contact?†Deputy Serrata responded
affirmatively. Even if a person
responded that he is “from no where,†Serrata would be afraid of a shooting. In Serrata’s opinion, if a gang member
confronted three people, only one of whom was a rival gang member, and the gang
member shot towards those three people, the gang member would have intended to
shoot all three because he would perceive them to be threatening as a group.
DISCUSSION
Denial
of Defendant’s Batson-Wheeler Motion
Was Not Error
Defendant
contends the prosecutor used peremptory challenges to exclude Hispanic jurors
in violation of Batson,
He argues that (1) defense counsel made a prima facie case that
Juror Nos. 1 (7317), 3 (1530), 4 (6504), and 7 (0151) were excused because of
group bias and (2) the nondiscriminatory justifications articulated by the
prosecutor were sham excuses. We are not
persuaded.
A prosecutor’s use of peremptory
challenges to strike prospective jurors because of group bias (i.e., bias based
on the juror’s membership in a racial, religious, ethnic or similar group)
violates a criminal defendant’s right to trial by a jury drawn from a
representative cross-section of the community under both the Fourteenth
Amendment to the United States Constitution and article I, section 16 of the
California Constitution. (
582, 596 (Bell).) Ruling on a Batson-Wheeler motion requires a three-part inquiry. First, the defendant must make out a prima
facie case by showing that the totality of the circumstances gives rise to an
inference of discriminatory purpose.
Second, if the defendant does so, the burden shifts to the prosecution
to adequately explain its peremptory challenges by offering group bias-neutral
justifications for the strikes. Third,
if such an explanation has been given, the trial court must decide whether the
defendant has proven purposeful discrimination.
(Bell, at p. 596.) As we shall explain, the trial court did not
err in finding defendant did not make a prima facie showing of group bias. Even assuming defendant had done so, he has
not shown that the prosecutor’s articulated reasons for excusing the jurors in
question were not bona fide.
1.
Factual Background
The challenged
jurors testified as follows:
• Juror No. 7317 lived in East Los Angeles, was
married and had three small children.
His only experience with litigation was a workers’ compensation case
which he believed was handled appropriately.
He knew no one working in law enforcement or the legal system and had
never met a policeman. He had experience
with rifles. His family had not been
affected by street gangs, but he had observed the effects of gang activity in
his community. He believed that gang
members could tell the truth. Asked if
he could do the job of being a juror, he responded: “I am nervous about it. I never done it before.†Juror No. 7317’s opinion would not be
affected if someone said the victim was a gang member.
• Juror No. 1530 lived in northeast Los
Angeles, had a partner and a one-year-old daughter. She had no prior jury experience, had never
been a victim of, or witness to, a crime.
Her brother was awaiting trial on drug possession charges, and she had
been with him at every court appearance.
Although she believed that the evidence against her brother had been
planted in his car, she did not have a negative impression of law
enforcement. Currently a student, Juror
No. 1530 wanted to be a social worker and to work with children. She had heard of street gangs but was not
familiar with them. Recently, a school
friend and his brother who were not gang members were shot and killed outside
their home by gang members. Despite this
experience, she could remain objective in this case.
• Juror No. 6504 lived in the San Gabriel
Valley, was not married and had never served on a jury. Asked whether he could think of any way in
which street gangs had impacted his life, he stated, “No. Not really.
There has been instances but nothing serious.†Asked to elaborate, he said that when he was
younger there was a driveby shooting “a couple doors down†from his house.
• Juror No. 0151 lived in Santa Monica, was
married and had two adult children. He
had been an alternate juror in a criminal trial in which the defendant was
acquitted of possession of rock cocaine.
Juror No. 0151 worked as a cook at a hospital; he did not have any
opinion as to whether he was a good cook.
He knew that gangs existed but did not know anyone whose life had been
affected by a gang. Asked whether he
could listen to the testimony even if the victim was a gang member, Juror No.
0151 stated, “No. I don’t know anybody
involved in this case. I have no
judgment or opinions.â€
The prosecutor exercised peremptory
challenges to eight prospective jurors including Nos. 7317, 1530 and 6504,
without objection. After she exercised
her ninth peremptory to excuse Juror No. 0151, defense counsel made a
prosecutor was excusing all Hispanics.
The trial court noted that there was still a diverse prospective jury
panel, then stated: “I’m not making a finding at this stage. But if you have any justification for your
choices that you want to mention to refresh the court’s recollection, it would
be helpful.†The prosecutor responded
that she excused Juror No. 7317 because, although he said he saw the effect of
gangs in his community, he appeared accepting of them. She excused Juror No. 1530 because she
appeared to have a problem with the police and her claim to have been
unaffected by the recent gang-related murder of two friends was not
credible. She excused Juror No. 6504
because she did not credit his claim that he could be objective despite a driveby
shooting that occurred down the street from his home. Finally, she excused Juror No. 0151 because
he seemed too indecisive. This colloquy
followed:
“THE COURT: All right.
I appreciate your refreshing the court’s recollection. And I don’t see any pattern of abuse of the
peremptory challenges here. Specifically
related to Hispanics. [¶] Do you want me to go through all the Asians
as well or are you satisfied? [¶] [DEFENSE COUNSEL]: I’m satisfied. [¶] .
. . [¶]
THE COURT: Really, counsel, if I
were to grant a Wheeler motion, do you think we’d be any farther ahead in
getting a fair jury? [¶] [DEFENSE COUNSEL]: No. I
submit it. For example, I just don’t
recall, and I know it’s late in the day, but I don’t recall anybody admitting
being involved in gang activity.
[¶] THE COURT: We’ve had a couple people that have talked
about one of their friends dating someone, having friends who have been falsely
accused and convicted. [¶] [DEFENSE COUNSEL]: That’s true.
[¶] THE COURT: So those are valid reasons. Okay.
Thank you. I don’t find a prima
facie case. [¶] [DEFENSE COUNSEL]: Okay.
That’s fine. [¶] [THE PROSECUTOR]: Thank you.
Done.â€
2.
Defendant Did Not Establish a Prima Facie
Case of Group Bias
“To make a prima facie showing of
group bias, ‘the defendant must show that under the totality of the
circumstances it is reasonable to infer discriminatory intent.’ [Citations.]â€
(People v. Davis (2009) 46
Cal.4th 539, 582; see also Johnson v.
California (2005) 545 U.S. 162 [prima facie case requires no more than
evidence or circumstances that give rise to an inference of
discrimination].) A single instance of
discrimination is constitutionally proscribed.
(People v. Howard (2008) 42
Cal.4th 1000, 1016.) Some examples of
the types of evidence that are relevant to establishing a prima facie case
include that the prosecutor struck most or all of the members of the identified
group from the venire; used a disproportionate number of his or her
peremptories against that group; the only characteristic shared by the jurors
in question is their membership in the group; and the failure of the prosecutor
to engage questioned jurors in “more than desultory voir dire.†(Davis,
at p. 583.) In determining whether
the trial court erred in finding that no prima facie showing of group bias had
been made, we examine the totality of all the relevant circumstances, including
the entire record of voir dire of the challenged jurors. (See Williams
v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1108.) When, as here, “the trial court expressly
states that it does not believe a prima facie case has been made, and then
invites the prosecution to justify its challenges for the record on appeal, the
question whether a prima facie case has been made is not mooted, nor is a
finding of a prima facie showing implied.
[Citations.] Under such
circumstances, we sustain the trial court if, upon independently reviewing the
record, we conclude the totality of the relevant facts does not give rise to an
inference of discriminatory purpose.†(
Criminal Law (2d ed. 1989) Criminal Trials, § 596 [appellate court will
affirm trial court’s finding of no prima facie case if the record suggests
grounds on which the prosecution might reasonably have challenged the jurors in
question].)
Based on our independent review of
the record, we agree with the trial court that the defendant did not make a
prima facie case that the prosecutor challenged the jurors in question because
they were Hispanic. This is because the
record suggests race-neutral reasons for the challenges. For example, Juror No. 1530’s testimony that
her brother was awaiting trial on drug possession charges and she believed the
police had planted evidence against him was a race-neutral reason for excusing
that juror. (See People v. Roldan (2005) 35 Cal.4th 646, 703 [prospective
juror’s negative experience with criminal justice system is a race-neutral
ground for a peremptory challenge]; People
v. Farnam (2002) 28 Cal.4th 107, 138 [close relative’s adversarial
contact with criminal justice system is race neutral]; see also
1377, 1386 [skepticism about the criminal justice system is race
neutral].) In addition, Juror
No. 1530 was studying to be a social worker, another race-neutral reason
for excluding her. (See
677 (Watson) [juror’s background in
social work was race-neutral reason for exclusion]; People v. Trevino (1997) 55 Cal.App.4th 396, 411 [providers of
social services]; People v. Perez
(1996) 48 Cal.App.4th 1310, 1315 [those working in social services field].)
Although they downplayed its impact
on their lives, the experiences with gangs in their respective communities
described by Juror Nos. 7317 and 6504 was a race-neutral reason for excluding
each of them. (See Watson, supra, 43 Cal.4th at p. 679 [neighborhood exposure to
gangs may bias a prospective juror despite the juror’s insistence that it would
not].)
Juror No. 0151 had been an
alternate juror in a criminal trial in which the defendant was acquitted. Prior jury service is a race-neutral reason
for exercising a peremptory challenge.
(See People v. Lewis (2006) 39
Cal.4th 970, 1014; People v. Reynoso
(2003) 31 Cal.4th 903, 918.)
3.
Substantial Evidence Supports a Finding That
the Prosecutor Relied on Race-Neutral Reasons for Excusing the Questioned
Jurors
Even assuming for the sake of
argument that defendant established a prima facie case of group bias – which we
do not believe he did – defendant failed to show that the prosecutor’s stated
reasons for excusing the jurors in question were not credible. We review the trial court’s ruling on a
evidence. In so doing, we presume that
the prosecutor used peremptory challenges in a constitutional manner and defer
to the court’s ability to distinguish bona fide reasons from sham excuses. “ ‘As long as the court makes “a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered
its conclusions are entitled to deference on appeal.†’ [Citation.]â€
(People v. Zambrano (2007)
41 Cal.4th 1082, 1104, disapproved on another point in
390, 421, fn. 22.)
Here, the trial court appears to
have made a sincere and reasoned effort to evaluate the prosecutor’s
nondiscriminatory justifications and its finding that defendant did not make a
prima facie case of group bias is supported by the evidence. The prosecutor’s race-neutral reasons for
excusing the challenged jurors were reasonable inferences from the jurors’
statements. For example, from Juror
No. 7317’s statement that gangs had no effect on his immediate family even
though he saw the effect of gangs in his community, it was reasonable to infer
that he was too accepting of gangs to make a good prosecution juror; from
Juror No. 1530’s statement that she believed the evidence against her brother
had been “planted,†it was reasonable to infer that she may have a problem with
police; from Juror No. 6504’s characterization of a driveby shooting as
“nothing serious,†it was reasonable to infer that he, like Juror
No. 7317, was too accepting of gang violence to make a good prosecution
juror; from Juror No. 0151’s participation in a criminal case that
resulted in acquittal, as well as his refusal to state whether he thought he
was a good cook, it was reasonable to infer that he was not decisive enough to
be an effective juror.
Denial
of Defendant’s Pitchess Motion Was
Not an Abuse of Discretion
Defendant contends the trial court abused its discretion
by denying his Pitchess motion.
officer misconduct amounting to moral turpitude by gang expert Deputy Serrata,
which was relevant to impeach Serrata.
We find no error.
The sole and exclusive means by
which citizen complaints against police officers may be obtained are the
Code sections 832.7 and 832.8, and Evidence Code sections 1043 and 1045. (Brown
v. Valverde (2010) 183 Cal.App.4th 1531, 1539.) A Pitchess
motion must include, among other things, an affidavit showing good cause for
the discovery sought. (Evid. Code,
§ 1043, subd. (b)(3); Brown,
at p. 1539; see also Galindo v.
Superior Court (2010) 50 Cal.4th 1, 12.) “To show good cause as required by [Evidence
Code] section 1043, [the] declaration in support of a Pitchess motion must propose a defense or defenses to the pending
charges†and “articulate how the discovery sought may lead to relevant evidence
or may itself be admissible direct or impeachment evidence [citations] that
would support those proposed defenses.â€
(Warrick v. Superior Court
(2005) 35 Cal.4th 1011, 1024 (Warrick).) The declaration “must also describe a factual
scenario supporting the claimed officer misconduct.†(Ibid.) The threshold showing of good cause required
to obtain Pitchess discovery is
“relatively low.†(City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83,
94.) We review Pitchess orders under the abuse of discretion standard. (People
v. Hughes (2002) 27 Cal.4th 287, 330.)
Here, defendant sought all
complaints against Serrata “for officer misconduct amounting to moral
turpitude, including allegations of excessive force, dishonesty, false arrest,
fabrication of police reports†and related misdeeds. Counsel’s declaration in support of the
motion stated: “Based upon information
and belief, I am informed that officer Serrata is under investigation for the
use of excessive force during an arrest in or about August 2010. Based upon information and belief, officer[]
Serrata shot the arrestee approximately six times after the arrestee was
already subdued and apprehended. Because
officer Serrata is a critical witness in the matter . . . it is
imperative that the Pitchess motion
be granted in order to ascertain information with respect to Serrata’s use of
excessive force, and/or the submission of false testimony, or false police
reports. [¶] In addition, the materials obtained would be
used by the defense to locate witnesses to testify as to Mr. Serrata’s
character traits, habits, and customs for engaging in acts untruths and, or
falsifying police reports and planting evidence. These character traits of the officer are
relevant to show the officer’s propensity to engage in untruthfulness, and that
the officer has engaged in such conduct in this case.â€
Counsel’s declaration does not
propose a defense or defenses to the pending charges or articulate how the
discovery sought may lead to relevant evidence that would support any proposed
defenses. (Warrick, supra, 35 Cal.4th at p. 1024.) Deputy Serrata was not involved in the
investigation of the charged crimes and defendant did not suggest how alleged
prior misconduct by Serrata relates to any proposed defense. Given the tenuous connection between
unsubstantiated and speculative notions of excessive force and the officer’s
expert testimony, denial of the Pitchess
motion was not an abuse of discretion.
The
Prosecutor’s Hypothetical Was Not Improper
Defendant
contends he was denied due process by
an improper hypothetical posed to the gang expert by the prosecutor. He argues that the question, to which he
objected, amounted to argument. We find
no error.
In
1038, 1045 (Vang), our Supreme Court
recently explained that use of hypothetical questions must be “ ‘rooted in
facts shown by the evidence.’
[Citations.]†The question need
not encompass all of the evidence and may assume facts “ ‘ “within
the limits of the evidence, not unfairly assembled, upon which the opinion of
the expert is required, and considerable latitude must be allowed in the choice
of facts as to the basis upon which to frame a hypothetical question.†[Citation.]’ †(Id.
at p. 1046.) A hypothetical that
precisely mirrors the actual facts of the case is proper. (Id.
at p. 1048.) We review for abuse of
discretion the trial court’s ruling allowing expert testimony. (People
v. Mendoza (2000) 24 Cal.4th 130, 177.)
Here, using
a hypothetical that accurately reflected the facts of the case, the prosecutor
asked Deputy Serrata if he had an opinion as to whether a murder and four
attempted murders under the described circumstances were committed for the
benefit of, at the direction of or in association with a Maywood Locos gang
member. Serrata answered
affirmatively. He explained that by
asking party goers what gang they are from while displaying a gun, a gang
member instills fear of the gang into the object of his inquiry as well as all
witnesses to the exchange. By repeating
the question to the people waiting to get into the party, and then shooting at
them, the gang member compounds that fear.
Word of the incident spreads throughout the neighborhood, instilling
fear of the shooter and his gang into the community. Under
Vang, supra, 52 Cal.4th at page 1048, the prosecutor’s
hypothetical was not improper.
Defendant
also argues that the hypothetical was so lengthy that it essentially allowed
the prosecutor to argue its case in the guise of asking a question. Although we can imagine a hypothetical that
could improperly have that effect, this hypothetical did not. We conclude that there was no abuse of
discretion in allowing the expert to answer the challenged hypothetical.
Substantial
Evidence Supported the Premeditation Finding
Defendant
contends insufficient evidence supports the finding that the murder was
premeditated. He argues that the only
reasonable inference from the evidence is that the killing was the spontaneous
result of a sudden confrontation. We
disagree.
“An intentional
killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash
impulse.†(People v. Stitely (2005) 35 Cal.4th 514, 543.) Known as the “Anderson factors,†three types of evidence are generally relied
upon to support a finding of premeditation and deliberation: (1) planning
activity, (2) motive, and (3) manner of killing. (People
v. Welch (1999) 20 Cal.4th 701, 758, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 91, citing
15, 26-27 (Anderson).) Typically, a finding of premeditation is
supported by substantial evidence when there is evidence of all three types,
extremely strong evidence of planning, or evidence of motive and manner of
killing. (Welch, at p. 758.)
Evidence that the defendant deliberately aimed at the victim believing
he was a rival gang member is sufficient to support a premeditation
finding. (People v. Rand (1995) 37 Cal.App.4th 999, 1001.)
Here, the premeditation finding was
supported by substantial evidence of motive and manner of killing. In particular, we find substantial the
evidence that defendant fired at Bryan multiple times from close range after
asking him the portentous question, “Where are you from?,†Andy’s testimony
that defendant shot at Bryan after Bryan identified himself as a member of the
Orchard Locos, and the gang expert’s testimony that the Maywood Locos
considered the Orchard gang to be rivals.
Defendant’s
Sixth Amendment Rights Were Not Violated by Imposition of Various Fines
We find no
merit to defendant’s contention that imposition of fines and restitution
payments totaling $12,936 violated Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) and its progeny.
In
Court held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi,
supra, 530 U.S. at p. 490.)
In Southern Union Co. v. U.S.
(2012) __ U.S. __ [132 S.Ct. 2344, 2357] (Southern Union Co.), the court held that the rule applied equally
to imposition of criminal fines.
In People v. Kramis (2012) 209 Cal.App.4th 346, 351 (
held that Apprendi and
trial court exercises its discretion within a statutory range, as it does when
selecting a restitution fine pursuant to Penal Code section 1202.4,
subdivision (b). The court explained
that Apprendi “ ‘distinguishes a
“sentencing factor†– a “circumstance, which may be either aggravating or
mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the
defendant is guilty of a particular offense†—from a “sentence enhancement†—
“the functional equivalent of an element of a greater offense than the one
covered by the jury’s guilty verdict†constituting “an increase beyond the
maximum authorized statutory sentence.â€
[Citation.]’ [Citation.]†(Kramis,
supra, at p. 351, citing People
v. Urbano (2005) 128 Cal.App.4th 396, 405-406.) In People
v. Pangan (2013) 213 Cal.App.4th 574, 585 (Pangan), the court held that neither Apprendi nor Southern Union
Co. applied to direct victim
restitution, “because direct victim restitution is not a criminal penalty. As explained in U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054,
direct victim restitution is a substitute for a civil remedy so that victims of
crime do not need to file separate civil suits.
It is not increased ‘punishment.’
[People v. Millard (2009)
175 Cal.App.4th 7, 35] makes the same point in regard to
[People v. Chappelone (2010)
183 Cal.App.4th 1159, 1184] has collected the numerous federal cases also
holding victim restitution does not constitute increased punishment for
crime. [Citation.] And we would note the restitution statute
awards as civil. (See § 1202.4,
subd. (a)(3)(B) [victim restitution ‘shall be enforceable as if the order
were a civil judgment’].)â€
We agree with the reasoning of the
court in Kramis and
imposed pursuant to Government Code section 70373 or Penal Code sections
1465.8, 1202.4, subdivision (b) or 1202.45 because those fines were within a
range prescribed by statute. He was not
entitled to a jury trial on the $3,686 restitution award to Bryan’s surviving
family and the $8,380
to the state victims’ restitution fund because direct victim restitution is not
increased punishment.
The judgment is affirmed.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
was charged by amended information with the first degree murder of Bryan
Barraza; the attempted premeditated murders of Andy M., Angel S. and
Tiffany B., and the attempted extortion of Kevin E. Gang and firearm enhancements were also
alleged. A jury found defendant guilty
of first degree murder and attempted extortion; it found true a gang
enhancement on each count (Pen. Code, § 186.22, subd. (b)); as to the
murder, it found true three firearm enhancements (§ 12022.53, subds. (b),
(c), (d) & (e)(1)); and as to the extortion it found true one firearm
enhancement (§ 12022.5, subd. (a).)
Defendant was sentenced to 50 years to life in prison comprised of 25
years to life for the murder, plus a consecutive 25 years pursuant to section 12022.53,
subdivision (d) [principal personally and intentionally discharged a firearm
causing death]; plus a concurrent 10 years for the extortion (the two-year
midterm, plus five years for the gang enhancement, plus three years for the gun
use). Defendant timely appealed.
Kentucky (1986) 476 U.S. 79 (
