P. v.
Marquez
Filed 7/16/12 P. v. Marquez CA4/1
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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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CYNTHIA MICHELLE MARQUEZ et al.,
Defendants and
Appellants.
D059082
(Super. Ct.
No. SCD226584)
APPEALS
from judgments of the Superior Court
of
County, Leo Valentine, Jr., Judge. Affirmed.
A jury
convicted defendants Cynthia Marquez and Luciano Rivera of
Code,
§§ 211/213, subd. (a)(1)(A), count 1) and first degree burglary
(§ 459/460, count 2), and found true the special allegations that
defendants were armed with a firearm in committing the robbery
(§ 12022.53, subds. (b) & (e)(1)), they committed the offenses for the
benefit of a criminal street gang
(§ 186.22, subd. (b)), and Rivera personally used a firearm in connection
with count 2 (§ 12022.5, subd. (a)).
The jury
also found Rivera guilty of four other offenses: assault by means likely to
cause great bodily injury (§ 245, subd. (a), count 5) and battery causing
serious bodily injury (§ 243, subd. (d), count 6) involving victim Antonio
Perez; and assault (§ 240, count 7) and battery (§ 242, count 8)
involving victim Mark Kaczmarczyk. The
jury found true the special allegations appended to counts 5 and 6 that Rivera
committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The jury also found true the special
allegation appended to count 5 that Rivera personally inflicted great bodily
injury on Perez within meaning of section 12022.7, subdivision (a), and found
true the special allegation appended to count 6 that Rivera personally
inflicted great bodily injury on Perez within meaning of section 1192.7,
subdivision (c)(8). The jury also found
true the special allegation appended to count 7 that Rivera committed the
offense for the benefit of a criminal street gang (§ 186.22, subd.
(b)). In a bifurcated proceeding, Rivera
admitted the allegations that he had a prior serious felony conviction
(§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds.
(b)-(i)).
I
FACTUAL
BACKGROUND
A. The Home Invasion Robbery (Counts 1 and 2)
On April 5, 2008, numerous persons
(including Mr. Brockman and Ms. Caballero) were at a residence in
criminal activities, including the sale of drugs. One of the persons present was
"Pablo," the main seller of methamphetamine
In the
early morning hours of April 5, 2008,
Caballero unlocked and opened the front door to admit "Gilbert," who
she believed was one of Pablo's regular customers. However, when she tried to close the door, it
was pulled open and four men wearing hoodies entered the house. The invaders said something about "the
law of the land that, you know, we have to pay
up . . . ." The
invaders "were there for Pablo."
Rivera was
one of the invaders and was carrying a firearm.
Marquez, carrying duffle bags, entered the house a few minutes later and
directed the activities of the invaders.
Marquez kept saying, "just be still. Just be quiet. They will tell you what to do." Marquez was "keeping guard," and at
one point asked where Pablo was. The
intruders eventually left "with the big duffel bags full of stuff."
A car
registered to Rivera was left at the scene and impounded. A couple of days after the robbery, an
informant (who authorities used for a consensual wiretap) talked on the
telephone to Marquez and Rivera about the home invasion, and they told the
informant they had been involved. Based
on the wiretaps, police prepared photographic "six-packs," including
a six-pack containing Rivera's picture and a six-pack containing Marquez's
picture. Brockman identified Rivera and
Marquez as two of the perpetrators and said Rivera was the person with the
firearm. Caballeros also said the
photographs of Rivera and Marquez looked like two of the participants in the robbery.
A gang
expert testified about the Mexican Mafia.
He testified "Bat" Marquez was a top Mexican Mafia member with
his own organization and Marquez was his "secretary." Persons who sell drugs in a Mexican Mafia
area must pay "taxes," which are collected by soldiers or
secretaries. If the dealers did not pay
the taxes, the gang would extort money from them or conduct home invasions to
take property, which they would then sell for a profit.
Another
gang expert, who testified Rivera was a Mexican Mafia associate (or
"soldier") and Marquez was a secretary for Bat Marquez, testified on
how the home invasion robbery was committed for the benefit of and in
association with the Mexican Mafia.
B. The Jail Assaults (Counts 5 Through 8)
On February 16, 2010, Mr. Perez was
being held in jail on a charge of rape.
Perez belonged to a Chula Vista
area gang. Two fellow inmates, one of
whom was Rivera, assaulted Perez so severely that he lost consciousness.
On May 14, 2010, Mr. Kaczmarczyk was
being held in a segregated lockup because he was charged with crimes against
children. Around 9:00 a.m., Rivera had just finished receiving a haircut and
Kaczmarczyk was the next person to be allowed to use the dayroom. When the deputy opened the door to allow
Kaczmarczyk to enter, Rivera attacked Kaczmarczyk. A videotape of the assault was played for the
jury.
A gang
expert testified that the rules of the Mexican Mafia required any gang member
to assault any person being held for a rape charge or for a crime perpetrated
against a child. The expert testified the
assaults on Perez and Kaczmarczyk were for the benefit of the Mexican Mafia.
C. The Gas Station Charges (Counts 3 and 4)
On June 21, 2008, two persons robbed a Union
76 gas station and took cash and a laptop computer. The victim stated a photograph of Rivera
resembled one of the robbers. The
Mexican Mafia informant obtained the stolen laptop from Rivera, who told the
informant it was from an Exxon Station robbery.
The gang expert testified the robbery was for the benefit of the Mexican
Mafia. However, the jury acquitted
Rivera of the gas station robbery charges.
II
ANALYSIS
A. The Severance Claim
Prior to
trial, Marquez moved to sever trial of the home invasion charges from trial on
charges against Rivera arising out of the gas station robbery and the jail
assaults, contending there was a danger she would be found guilty by
association, and there was a potential for confusion of the evidence because
the stronger evidence of the jail assaults could prejudice her. The trial court denied the motion, noting the
gang allegations would make much of the evidence potentially cross-admissible
even in a severed trial, and concluding there was little prejudicial impact
from having the jail and gas station charges against Rivera amalgamated with
the home invasion counts.
Legal Framework
Section
1098 provides that:
"When two or more defendants are jointly charged
with any public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order separate trials. In ordering separate trials, the court in its
discretion may order a separate trial as to one or more defendants, and a joint
trial as to the others, or may order any number of the defendants to be tried
at one trial, and any number of the others at different trials, or may order a
separate trial for each defendant; provided, that where two or more persons can
be jointly tried, the fact that separate accusatory pleadings were filed shall
not prevent their joint trial."
A joint trial is preferred when available. (People
v. Cleveland
(2004) 32 Cal.4th 704, 725-726.)
However, a court retains discretion to order separate trials and a
ruling on a motion for separate trials is reviewed under the abuse of
discretion standard. (
643, 671.) The trials of codefendants
may be severed " 'in the face of an incriminating confession,
prejudicial association with codefendants, likely confusion resulting from
evidence on multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating
testimony.' " (
574-575, quoting People v. Massie
(1967) 66 Cal.2d 899, 917.) When ruling
on a motion to sever, the court should consider:
"(1) the cross-admissibility of the evidence in
separate trials; (2) whether some of the charges are likely to unusually
inflame the jury against the defendant; (3) whether a weak case has been joined
with a strong case or another weak case so that the total evidence may alter
the outcome of some or all of the charges; and (4) whether one of the charges
is a capital offense, or the joinder of the charges converts the matter into a
capital case." (
When a
court denies a motion to sever trial of otherwise properly joined defendants,
we will not reverse the judgment unless the consolidation deprived a defendant
of a fair trial or due process. (
865, 933, disapproved on other grounds by People
v. Williams (2010) 49 Cal.4th 405, 458-459.)
Analysis
Although
Marquez correctly notes the facts of the home invasion and the facts of the gas
station robbery and jail assaults were not cross-admissible on the elements of
the substantive offenses, the gang allegations appended to all counts created
sufficient cross-admissibility to weigh in favor of consolidated trials. First, all of the more generalized gang
evidence, admissible as to the enhancements appended to the counts arising from
the gas station robbery and jail assaults, was equally admissible as to the
enhancements appended to the counts arising from the home invasion. Second, Rivera's specific conduct in the gas
station robbery and jail assaults was potentially cross-admissible as against
Marquez, subject to the court's discretion under Evidence Code section 352,
because (1) it was relevant to showing Rivera was an active gang member, and
(2) Marquez was charged with committing the home invasion crimes with (among
other things) the "specific intent to . . . assist in any
criminal conduct by gang members," making Rivera's gang affiliation
relevant to the charges against Marquez.
Marquez
argues Rivera's jail assaults involved charges likely
to unusually inflame the jury against her because Rivera was shown to be violent,
and she would be tainted by her association with a violent offender.
assaults could have been cross-admitted as discussed above, any purported taint
would also have been present in severed trials.
The
remaining two factors also did not militate in favor of severance. This was not a case in which a relatively
weak case (on the home invasion counts) was joined with a much stronger case
(on the jail assaults): the former had multiple witnesses who identified Marquez
and Rivera as active participants, and had an informant to whom Marquez
admitted involvement; and the latter also had strong evidence of Rivera's
participation. Furthermore, this was not
a case in which one of the charges is a capital offense or in which joinder of
the charges converts the matter into a capital case. We conclude it was not an abuse of discretion
to deny Marquez's motion to sever the trials.
B. The Sentencing Claim
Rivera
argues the trial court's sentence was erroneous because, for the prior serious
felony conviction (§ 667, subd. (a)(1)), the court added a five-year
determinate term to the indeterminate term (imposed for the conviction on count
1) and another five-year determinate term to the determinate term imposed for
the remaining unstayed convictions and enhancements. Rivera argues this was error and that one of
the five-year prior serious felony conviction enhancements should be vacated.
However,
Rivera recognizes this court rejected the substantively indistinguishable argument
in People v. Misa (2006) 140
Cal.App.4th 837 (Misa). In Misa,
this court examined the appropriate sentencing for status enhancements when a
defendant is sentenced to both an indeterminate and a determinate term after
(overruled on other grounds by People v.
Ewoldt (1994) 7 Cal.4th 380, 386-387) and People v. Williams (2004) 34 Cal.4th
397. In Tassell, the court held that a status enhancement related to the
nature of the offender (such as a prior conviction enhancement), not the nature
of the offense, should be added only once to increase the aggregate term for
multiple determinate sentences. (
pages 401 to 402, the court held this limitation did not apply to multiple indeterminate sentences imposed under
the three strikes law, and that a prior serious felony conviction enhancement
should be added to each indeterminate
sentence. The Williams court
reasoned that Tassell's restriction was derived from the language of the
determinative sentencing statute (§ 1170.1) and not from the language or
legislative history of the prior conviction enhancement statute; section 1170.1
was only applicable to determinate sentences; the three strikes scheme requires
that enhancements be added as separate determinate terms; and adding the
enhancement for each new offense was consistent with the logic of the three
strikes law that separately increases the sentence imposed for each new felony
conviction. (Williams, at pp. 402-405.)
In Misa,
we applied the Williams
rationale to require imposition of a prior serious felony conviction
enhancement on both an indeterminate term and a determinate term for a
defendant subject to the three strikes law as a second striker. The indeterminate term in
for torture. (
status as a second striker warranted extending the Williams holding to
require imposition of the enhancement on both the indeterminate and determinate
sentences. (Misa, at p. 847.)
indeterminate term was not derived from the three strikes law but instead was
based on the gang enhancement statute, which requires a sentence of 15 years to
life when a home invasion robbery is committed to benefit a gang. (§ 186.22, subd. (b)(4)(B).) However, like the three strikes law, the
purpose of section 186.22 is to impose "harsher punishment for
gang-related offenses." (
1439, 1444.) Because indeterminate
sentences are not governed by the sentencing rules applicable to determinate
sentences, and because Rivera's indeterminate sentence was derived from a
punishment-augmenting statutory scheme, we conclude the
here, and Misa is substantively
controlling. The trial court did not err
in imposing the prior serious felony conviction enhancement on both the
indeterminate and determinate terms to which Rivera was sentenced.
C. The Discovery Claim
Before
trial commenced, the prosecution sought a ruling on whether certain materials
were required to be disclosed to the defense under section 1054.1 and/or
and requested the court review the materials in camera to rule on the
disclosure obligations. The court held
the in camera hearing and ruled the materials were not discoverable and sealed
the information. All parties have requested
that we likewise independently examine the sealed materials to determine
whether the trial court's ruling was erroneous.
We have examined the sealed materials and conclude the trial court
correctly ruled the prosecution was not required to disclose these materials
under either section 1054.1 or Brady v.
Maryland, supra.
DISPOSITION
The
judgments are affirmed.
McDONALD,
J.
WE CONCUR:
HUFFMAN,
Acting P. J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Marquez also suggests the gas station robbery evidence was unduly inflammatory and her
association with the perpetrator of those offenses unfairly tainted her in
front of the jury. However, the jury
Marquez offers no explanation of why her association with a person acquitted of
those offenses may have tainted her.
