P. v. Maldonado

Filed 12/2/09 P. v. Maldonado CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed as modified.

John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Appellant Jose Maldonado appeals from his conviction of two counts of attempted willful, deliberate, premeditated murder (Pen. Code, 187, subd. (a), 664),[1]and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found firearm and gang allegations to be true. ( 12022.53, subds. (b) & (c), 186.22, subd. (b)(1)(A), (1)(C).) Appellant argues that there was insufficient evidence of deliberation and premeditation to support the attempted murder convictions. He and respondent agree that the abstract of judgment incorrectly reflects the convictions and sentences. We modify the abstract of judgment to reflect appellants convictions and the resulting sentences.

Finding the evidence sufficient to support the convictions, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was charged by information with attempted willful, deliberate, premeditated murder of Max Garcia ( 187, subd. (a), 664, subd. (a); count 1) and Erik Rodriguez ( 187, subd. (a), 664, subd. (a); count 2), and possession of a firearm by a felon ( 12021, subd. (a)(1); count 5).[2] The information alleged that appellant committed the offenses to benefit a criminal street gang within the meaning of section 186.22, subdivisions (a) and (b)(1)(C), and that he personally and intentionally discharged a firearm during the commission of the offenses. ( 12022.53, subds. (b) & (c).) Appellant pled not guilty.

The evidence at trial showed that on August 19, 2008, Garcia and Rodriguez were driving a rental car shortly after 4:00 a.m. in Los Angeles. Garcia drove and Rodriguez sat in the front passenger seat. As they were driving to Garcias home, a white car swerved in and out of the lanes in front of them. As they drove past the white car, the driver, later identified as appellant, gave Garcia and Rodriguez a dirty look. Appellant was wearing a blue baseball cap. Garcia stopped at an intersections red light and appellant pulled up close to Garcias car on the drivers side. Appellant stared at Garcia and Rodriguez and said something. Garcia partially rolled down the drivers side window. Appellant asked Garcia where he was from, which Garcia took to mean what gang was he from. Garcia replied that he did not bang, and was not from a gang. Appellant repeated the question, yelling, and Garcia repeated his answer. Appellant leaned toward the passenger side of his vehicle, pulled out a handgun, and started shooting at Garcias vehicle. Garcia and Rodriguez ducked down and sped off, running the red light as appellant fired at least six shots. The bullets shattered the drivers side window and hit the side of the car. Appellant made a U-turn and sped away in the opposite direction.

Garcia drove for approximately a half mile, stopped near a gas station and called the police. Officers arrived some 15 minutes later and interviewed both men. Afterwards, Garcia parked his car in front of the gas station and went in with Rodriguez to buy cigarettes. While they were inside, appellant pulled into the gas station parking lot in the same car with a passenger, later identified as Roberto Gabriel. Garcia and Rodriguez hid behind the counter and called the police while appellant or his passenger came inside to buy gas and left without noticing them. As they saw appellants car begin to leave, Garcia and Rodriguez ran to the back of the store, climbed up a ladder and hid in the attic. Before appellant and Gabriel left, officers arrived on the scene and arrested both men after appellant was identified by Garcia and Rodriguez as the man who had shot at them.

Officers recovered a handgun from Gabriels pocket. The handgun had one bullet in the chamber and one in the magazine, although it was capable of holding eight. They also recovered spent bullets and bullet casings from appellants car and from the scene of the shooting. Expert witnesses testified that the bullet casings found at the scene and in the car matched the handgun recovered from Gabriel, and that gunshot residue on appellants right hand indicated that he had been in the environment of a firearm being fired. Also recovered from appellants car was a St. Louis Cardinals baseball cap that appellant had been wearing, and a business card that had gang tagging attached to it. An officer noticed that appellant had gang-related tattoos that said, Sleepless in Sereno and SL.

An expert witness testified about the El Sereno gang. He said that the area of the shooting is within the gangs territory. One of the symbols used by El Sereno gang members is the St. Louis Cardinals symbol. The phrase, where are you from is used among gang members to find out the other persons gang membership. Appellant admitted to a police detective that in 2006, he was a member of the El Sereno gang.

A jury found appellant guilty of both counts of attempted willful, deliberate premeditated murder, and of being a felon in possession of a firearm. The jury returned true findings on gang allegations as to all counts, and found true firearm allegations as to the counts of attempted murder. The trial court sentenced appellant to 15 years to life for each count of attempted murder and stayed imposition of sentence for the firearm possession count. Twenty-year terms of imprisonment were added to the attempted murder counts for the firearm allegations, and 15-year minimum parole eligibilities were added for the gang allegations. Appellants total sentence was two life terms, each having a parole eligibility of 15 years, plus 40 years for the firearm enhancements.

DISCUSSION

I

Appellant contends there is insufficient evidence of deliberation and premeditation to support his attempted murder convictions. It is the prosecutions burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Cuevas (1995) 12 Cal.4th 252, 260.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Appellant was convicted under the definition of first degree murder in section 187, subdivision (a), which provides, Murder is the unlawful killing of a human being . . . with malice aforethought, and section 189, which provides that a willful, deliberate, and premeditated killing . . . is murder of the first degree. Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) Appellants conviction therefore required proof that he considered beforehand his actions which were formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citation.] (People v. Jurado (2006) 38 Cal.4th 72, 118-119.) Appellant contends there is insufficient evidence from which the jury could have found that the attempted murders were premeditated and deliberate.

A reviewing court considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported: prior planning activity, motive, and the manner of killing. (People v. Villegas, supra, 92 Cal.App.4th at p. 1223.) These three categories of evidence that bear on premeditation and deliberation are not exhaustive, but guide us in determining whether appellants action was the result of preexisting reflection. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)

The evidence of planning activity was ample. It showed that appellant carried a loaded gun at the time of the shooting. Shortly before the attempted murders, he drove provocatively, swerving in and out of lanes in front of Garcias car, and gave the victims a dirty look as they drove past. Appellant initiated conversation, pulling up close to Garcias car and saying something to him even though Garcias window was rolled up. Appellant escalated the encounter by yelling his gang question (where Garcia was from) when Garcia would not answer. A rational juror could infer that appellant planned these actions to provoke an altercation and facilitate the shooting.

Appellants purposeful actions were motivated by his gang membership. An expert witness testified that the shooting may have been intended to create an atmosphere of intimidation in the gangs neighborhood, or for appellant to gain additional respect or status within his gang. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 [recognizing that a gang member can earn respect through a shooting].) It is rational for a juror to infer that appellants affiliation with the El Sereno gang, the territory of which encompassed the area of the shooting, supplied a pre-existing motive for his actions.

Firing a weapon at close range indicates an intent to kill. (People v. Villegas, supra, 92 Cal.App.4th at pp. 1223-1225.) Appellant fired at least six shots that could have inflicted mortal wounds on either Garcia or Rodriguez, supporting the conclusion that he acted with deliberation and premeditation. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [attempting to fire numerous rounds at an occupied vehicle showed the shooting was purposeful and the attempted murder was willful, deliberate and premeditated].) Appellant argues his actions were impulsive and an unreflecting explosion of violence. While the evidence may support that inference, it does not exclude the conclusion that he was acting in a calculated manner. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (People v. Abilez (2007) 41 Cal.4th 472, 504.) Because there is substantial evidence supporting the jurys finding that appellants actions were willful, premeditated, and deliberate, we affirm the judgment.

II

Both sides agree that the abstract of judgment incorrectly reflects the trial courts sentence. The first page of the abstract describes the base sentence as 15 years to life for each count of attempted first degree murder. It should have reflected a sentence of life with the possibility of parole for each count. ( 664, subd. (a).) Because the jury found gang allegations to be true, minimum parole eligibilities of 15 years were correctly imposed. ( 186.22, subd. (b)(1)(C), (5); People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Fiu (2008) 165 Cal.App.4th 360, 390 [holding that where a sentence prescribes an indeterminate term of life in prison, a minimum parole eligibility of 15 years is imposed for gang allegations under section 186.22].)

The second page of the abstract states that [a]s to counts 1 and 2, premeditated murder[,] coupled with the gang enhancement . . . [t]he defendant is ordered to serve life with the possibility of parole after 15 years (pursuant to People v. Lopez[,supra,] 34 Cal.4th 1002) plus an additional 20 years pursuant to . . . section 12022.53(c). [] Total sentence imposed is 2 life terms plus 70 years. (Italics added.) Appellant was convicted of two counts of attempted willful, premeditated and deliberate murder, not premeditated murder. The abstract should be corrected accordingly.

The jury found true firearm allegations pursuant to section 12022.53, subdivisions (b) and (c); while the 20-year terms of imprisonment prescribed by subdivision (c) were correctly reflected in the abstract, 10-year terms of imprisonment prescribed by subdivision (b) should have been imposed and stayed. ( 12022.53, subd. (f); People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1127 [finding that if more than one enhancement per person is found true under section 12022.53, the longest term of imprisonment is imposed and the other enhancement is imposed and stayed].) Appellants total sentence should not have been 2 life terms plus 70 years, but two life terms with minimum parole eligibilities of 15 years, and two additional 20-year terms of imprisonment.

DISPOSITION

The clerk of the superior court is directed to prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the changes described. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1]All unspecified statutory references are to the Penal Code.

[2] Appellant was also charged with second degree robbery, but that allegation was dismissed because of insufficient evidence.