P. v.
Filed 4/10/13 P. v. Martinez 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.
ADRIAN
MARTINEZ et al.,
Defendants and Appellants.
B235518
(Los Angeles
County
Super. Ct.
No. BA356465)
APPEAL from
judgments of the Superior Court
of
County, John S. Fisher, Judge.
Affirmed in part; reversed in part and remanded.
Stephen
Temko, under appointment by the Court of Appeal, for Defendant and Appellant
Joshua R. Galindez.
Chris R.
Redburn, under appointment by the Court of Appeal, for Defendant and Appellant
Adrian Martinez.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * * *
In connection with a shooting that
occurred on May 2, 2009, a
jury convicted appellants Adrian Martinez and Joshua R. Galindez of three
felonies: (1) the first degree murder of
Victor Solis (Pen. Code, § 187, subd. (a); count 1);
attempted murder of J.M. (§ 664, § 187; count 2); and
(3) shooting at an occupied motor vehicle (§ 246; count 4).
appellants, the jury found true a criminal
street gang allegation (§ 186.22, subd. (b)(1)(C)). As to all three counts, the jury also found
that Galindez personally discharged a firearm causing death or great bodily
injury (§ 12022.53, subd. (d)).
In
connection with a separate shooting that occurred on May 1, 2009, the jury also
convicted Martinez of shooting at an occupied motor vehicle and found true a
criminal street gang allegation (§ 246, § 186.22, subd. (b)(1)(C);
count 3).
The trial
court sentenced Martinez
consecutively for the May 2 murder and attempted murder, and for the May 1
shooting at an occupied car, to a total term of “75 years [to life].†The court imposed but stayed, pursuant to
section 654, the sentence for the May 2 shooting at an occupied car.
The trial
court sentenced Galindez consecutively for the May 2 murder and attempted
murder to a total term of “95 [years] to life.â€
The court imposed but stayed, pursuant to section 654, the sentence for
the May 2 shooting at an occupied car.
Appellants
raise a number of issues on appeal, including one related to sentencing. We asked for supplemental briefing regarding
a second sentencing issue. Although we
conclude that the case must be remanded for resentencing of both appellants, we
otherwise affirm the judgments.
A. The Prosecution
Viewed
according to the usual rules on appeal -- in the light most favorable to the
verdict and with all reasonable inferences drawn in its favor -- the People’s
case established the following facts.
May 1, 2009 Shooting
At about
12:45 a.m. on May 1, 2009, E.R. drove his pickup truck along Cypress Avenue
near Pepper Avenue. A dark Ford Mustang,
driven by Martinez and with a front seat passenger, pulled even with and
continued alongside E.R. for one to two minutes. Martinez gestured at E.R., who then heard
four or five gunshots. E.R. accelerated
away from the car and later reported the shooting to the police. He believed Martinez fired the shots because
Martinez was the occupant closest to him.
May 2, 2009 Shooting
At about
1:00 p.m. on May 2, 2009, J.M. stopped his car on Pepper Avenue near Cypress
Avenue to drop off his girlfriend, G.V.
G.V. was in the front seat and Victor Solis was in the back. Martinez, a Cypress Park gang member,
approached J.M.’s car, kicked it, stated “This is Cypress Park,†and made a
Cypress Park gang hand sign. G.V. got
out of the car and approached Martinez on the driver’s side of the car and
asked him to stop. J.M. did not roll
down the window of the car during the confrontation with Martinez.
Galindez,
another Cypress Park gang member, suddenly appeared towards the rear of the
car, on the driver’s side. Martinez said,
“Shoot these fools,†or “Blast these fools,†or “Shoot that fool. Pull out the strap.†Galindez began firing shots at the car. J.M. drove towards San Fernando Road, and
Galindez ran after the car. G.V. ran to
her house.
As he drove
away, J.M. looked behind and saw Solis hunched over in the back seat. J.M. drove down Pepper and turned right on
San Fernando Road. He stopped in a
supermarket parking lot where he saw an ambulance. Paramedics attempted to treat Solis at the
supermarket. He had, however, suffered a
single gunshot wound to the back of the head that was “rapidly fatal.â€
On May 7,
Los Angeles Police Criminalist Alan Perez examined J.M.’s car and found five
bullet impacts: to the rear driver’s
side door, the taillight, the trunk, and two to the rear bumper. Civilian M.O. found one expended
9-millimeter shell casing, and Los Angeles Police Detective Jose Carrillo found
three 9-millimeter shell casings, plus “one projectile†at the shooting
scene. All recovered casings had been
fired from the same gun. M.B., a
security guard working near the scene, saw Cypress Park gang member Victor
Picena pick up an additional shell casing.
When M.B. told Picena to leave them for the police, Picena told him,
“Who do you think you are?,†and “Do you know where you’re at?â€
Evidence
Los Angeles
Police Officer Thomas DeLuccia testified as the gang expert. He had been assigned to the Northeast Gang
Enforcement Detail for approximately four years and Cypress Park was one of the
primary gangs he monitored.
Cypress
Park is a Hispanic gang with approximately 100 documented and 25 active
members. Cypress Park’s claimed
territory is surrounded by territory claimed by its rival, the Avenues, a much
larger gang with between 500 and 750 documented members. Because of Cypress Park’s size in comparison
to its adjacent rival, it adopted “a shoot first and ask questions later
mentality†in order to send the message that though it was small, it was not
afraid to defend itself with violence.
Part of this culture included committing “sensational†crimes, such as
acts of violence in broad daylight and shooting random people who entered the
neighborhood. Both the May 1 and May 2
shootings occurred within Cypress Park’s claimed territory.
Respect is
important in gang culture. Gang members
earn respect by committing violent crimes.
If a gang member is disrespected in some manner, he is “required to take
some action.†J.M. was disrespectful
when he failed to acknowledge Martinez by not rolling down his window.
Both
Martinez and Galindez, according to Officer DeLuccia, were members of Cypress
Park, based upon self-admissions, their association with other gang members,
and their gang tattoos.
Officer
DeLuccia was a victim of violence initiated by a Cypress Park gang member. While on uniformed patrol with two other gang
officers, DeLuccia attempted to contact Cypress Park gang member Alfredo
Melendez. Melendez pulled out a handgun
and in the ensuing gunfight, DeLuccia was accidentally shot by one of his
partners.
Case
1. Galindez
Galindez
presented testimony from two civilians, J.G. and F.A. Their testimony suggested that Galindez was
at a birthday party in Elysian Park at the time of the May 2 shooting and thus
could not have been the shooter.
Dr. Robert
Shomer, an eyewitness identification
expert, also testified for Galindez.
In his testimony, Shomer discussed factors which can lead to a mistaken
identification.
2. Martinez
Martinez testified in his defense.
With respect to the May 1 shooting, Martinez admitted to
driving the Mustang. He said his
passenger was Mariano Rosales, and the two had been to a Dodger game and
drinking at a bar. They went to
Rosales’s house, where Rosales picked up a gun.
At a stop light, the truck driven by E.R. pulled next to them. Rosales thought he recognized the driver as
an Avenues gang member. He then
unexpectedly pulled out the gun and shot at the truck twice. Martinez was angry at Rosales for doing
so.
With
respect to the May 2 shooting, Martinez testified that he had gone to a Cinco
de Mayo carnival in Cypress Park. As he
crossed the street, a black car almost struck him. He got angry and walked to the driver’s
side. He asked the driver, “What’s up?,â€
and told him, “Watch the way [you’re] fucking driving.†He also kicked the car.
G.V. got
out of the car and approached him. When
she was about four feet away, Martinez heard a gunshot and dropped to the
ground. He saw Galindez shooting. After the shooting, Martinez ran away. He did not see Galindez immediately prior to
the shooting, although he had seen him earlier at the Cinco de Mayo carnival. He did not tell anyone to shoot at the
car.
The police
arrested Martinez on May 7, 2009. He
spoke to the police, told them “Vago†was the shooter, and identified Galindez
as the shooter from a photo lineup. On
October 20, 2010, Martinez gave another statement to the prosecutor in an
attempt to obtain leniency. He provided
additional facts about the shooting.
Because he
cooperated with law enforcement, Martinez was a “marked man†and had been
“green light[ed]†for killing.
I. Sufficiency of the Evidence
Martinez contends the evidence
is insufficient to establish the premeditation and deliberation required for
the first degree murder of Solis and
for the analogous enhancement found true in connection with the attempted
murder of J.M. Galindez claims that the
evidence does not show an intent to kill J.M. and his attempted murder
conviction must therefore be reversed.
Appellants’ contentions are without merit.
of Review
An appellate court reviewing a
challenge based on sufficiency of the evidence at trial must review the entire
record in the light most favorable to the People and determine whether any
rational fact finder could have found the essential elements of the crime
beyond a reasonable doubt. (
509.) Put another way, the appellate
court reviews the entire record in the light most favorable to the verdict and
determines whether there is substantial evidence – evidence that is reasonable,
credible, and of solid value – such that a reasonable juror could find the
defendant guilty beyond a reasonable doubt.
(Ibid.; see also
690.)
When making such an evaluation, the
appellate court does not reevaluate witness credibility or resolve conflicts in
the evidence. Such matters are exclusively
issues for the jury. (
1181.) Further, the reviewing court must
accept logical inferences that the jury might have drawn from any
circumstantial evidence. (
396.) While it is the jury’s duty to
acquit where circumstantial evidence is subject to two reasonable
interpretations, one which points to guilt and one which points to innocence,
it is the jury, not the appellate court, that must be convinced beyond a
reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where circumstances reasonably justify a
jury’s findings of fact, a reviewing court’s conclusion that such circumstances
might also reasonably be reconciled with contrary findings does not justify reversal. (Id.
at p. 1054.)
B. Murder, Attempted Murder, and
Transferred Intent
Murder is the unlawful killing of a
human being with malice aforethought.
(§ 187.) Malice is express
when a defendant intends to kill. (§
189.) Malice is implied when (1) a
defendant intentionally commits an act, (2) the natural consequences of the act
are dangerous to human life, (3) he knows the act is dangerous to human life,
and (4) he deliberately acts with conscious disregard for human life. (People
v. Knoller (2007) 41 Cal.4th 139, 143.)
In the context of this case, a
murder that is willful, deliberate, and premeditated is of the first
degree. (§ 189.) A “willful†murder is an intentional murder;
in other words, a murder committed with express malice. (People
v. Moon (2005) 37 Cal.4th 1, 29.)
A murder is “premeditated†when it is “‘considered beforehand,’â€
and it is “deliberate†when it is “‘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. Mayfield (1997) 14 Cal.4th 668, 767.)
“The process of premeditation and deliberation does not require any
extended period of time. ‘The true test
is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.’ [Citations.]â€
(Ibid.; People v. Perez (1992) 2 Cal.4th 1117, 1127.)
People
v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson),
sets forth three types of evidence ordinarily used to establish
premeditation and deliberation: (1)
planning activity, (2) motive, and (3) manner of killing. Although the Anderson factors provide, essentially, a “‘synthesis of prior case
law,’†they “‘are not a definitive statement of the prerequisites for proving
premeditation and deliberation in every case.’
[Citations.]†(
To sustain a verdict of first degree murder based upon premeditation and
deliberation, evidence of all three Anderson
categories is not required. (
Attempted murder requires (1) a
specific intent to kill and (2) a direct but ineffectual act toward
accomplishing the intended killing. (
739.) Unlike murder, an attempted murder
therefore requires express malice and cannot be proved based upon a showing of
implied malice. (People v. Bland (2002) 28 Cal.4th 313, 327.) Also, unlike murder, attempted murder is not
divided into degrees. The prosecution,
though, can seek a special finding that the attempted murder was willful,
deliberate, and premeditated, for purposes of a sentencing enhancement. (People
v. Bright (1996) 12 Cal.4th 652, 665-669, overruled on other grounds in
547, fn. 4, 550, fn. 6.)
Under the doctrine of transferred
intent, a defendant who intends to kill a certain person and either
additionally or instead kills a bystander is guilty of the bystander’s
murder. (People v. Bland, supra,
28 Cal.4th at p. 321.) The doctrine
does not apply to attempted
murder: one who intends to kill a
certain person is not guilty of attempted murder of a bystander even if the
doctrine of transferred intent would have made the crime murder had the
bystander been killed. (
A defendant, however, may still be
guilty of attempted murder in connection with a group attack under the doctrine
of concurrent intent. (
A concurrent intent to kill exists where “‘the nature and scope of the
attack, while directed at a primary victim, are such that [the jury] can
conclude the perpetrator intended to ensure harm to the primary victim by
harming everyone in that victim’s vicinity.’
[Citation.]†(
Cases applying this doctrine can be described as “kill zone†cases. (Id.
at p. 330.)
C. Martinez’s Claim
Martinez contends that evidence in
connection with the May 2 shooting shows “a sudden confrontation that was entirely
spontaneous and not planned in any way.â€
Thus, he concludes, the killing of Solis is only second degree murder
and the attempted killing of J.M. only simple attempted murder. We disagree.
Based upon the evidence presented
at trial, the jury could reasonably find all of the following facts. Both appellants were members of Cypress Park,
a gang that needed to commit sensational and random acts of violence in order
to enhance its reputation and thereby ensure its survival vis-á-vis larger and
more powerful rival gangs. Both
appellants knew each other, and Martinez admitted to seeing Galindez at the
Cinco de Mayo carnival prior to the shooting.
J.M. committed acts of disrespect when (1) he almost drove his car into
Martinez and (2) failed to roll down his window in acknowledgement of
Martinez’s approach. Although at trial
J.M. denied hearing anything said prior to the shooting, he told officers at
the scene that Martinez said, “Shoot that fool.
Pull out the strap.†He told
detectives in a later interview that Martinez said, “Blast these fools. Shoot these fools.â€
These facts are sufficient to
support the jury’s finding that the murder of Solis and attempted murder of
J.M. were willful, deliberate, and premeditated. J.M.’s acts of “disrespectâ€
provided the trigger or motive for Martinez’s encouragement of Galindez to
shoot. Martinez’s decision to kill,
however, was anything but “spur of the moment.â€
His criminal street gang membership generally, and Cypress Park
membership in particular, allowed the jury to conclude that he had already
contemplated the use of deadly force as a response to even the slightest
provocation before the confrontation with J.M. even occurred. His statements immediately prior to the
shooting show that he knew Galindez was (1) present, (2) ready to back him up
if necessary, and (3) armed with a loaded gun. Together, these facts
demonstrate both a deliberate decision to use lethal force and a premeditated
plan to implement that decision if a situation arose that required it. Nothing more is necessary under the law to
establish deliberation and premeditation given the circumstances of this case.
Martinez contends that G.V.’s
testimony that Martinez looked “surprised†when the shooting began is
“irrefutable evidence†that Martinez was unaware of Galindez or that a shooting
was about to occur. We disagree. It is not our task, when reviewing
sufficiency, to substitute our judgment for that of the jury. Given the evidence of Martinez’s verbal
encouragement of Galindez, the jury was entitled to disregard this portion of
G.V.’s testimony or simply conclude that she misinterpreted Martinez’s facial
expression. We will not second guess the
jury’s decision to do so.
Claim
Galindez argues because all of his
shots struck the back of J.M.’s car, the evidence shows only an intent to kill
Solis, the backseat passenger, and does not establish his intent to kill
J.M. Because the intent to kill Solis
may not be transferred to J.M., Galindez continues, his conviction for attempted
murder must therefore be reversed. We
disagree.
First, Galindez’s characterization
of the physical evidence is incorrect:
at least one shot hit the rear driver’s side door of J.M.’s car. Second, Galindez fired from a position behind
J.M.’s car. Given that position, the
location of the bullet impacts to the back or rear driver’s side of the vehicle
are entirely consistent with an intent to kill the driver. Third, J.M. began driving away immediately as
the shots were being fired, thereby presenting a moving target, which also
explains the impact of the bullets away from the immediate location of the
driver. Fourth, the altercation that
prompted the shooting was between Martinez and the driver, J.M., not Martinez
and the backseat passenger, Solis. Fifth, based on the forensic evidence and the
testimony of M.B. the jury could find that Galindez fired at least five rounds
at J.M.’s car. Based on these facts, the
jury could reasonably conclude that Galindez’s primary target was the driver of
the vehicle, and that he concurrently intended also to kill anyone who happened
to be riding with the driver.
of Martinez’s October 20, 2010 Proffer
As mentioned above, Martinez spoke
to law enforcement on two separate occasions:
once on May 7, 2009, after his arrest, and again on October 20, 2010, in
an effort to obtain leniency or immunity from the prosecutor. After Martinez testified on direct
examination, the trial court allowed Galindez, over the objection of both
Martinez and the People, to cross-examine with portions of the October 20
proffer. Thereafter, the prosecutor also
cross-examined Martinez using portions of the proffer. Martinez contends that because his October 20
statement was part of an offer to plead guilty to a reduced charged, it could
not be used against him at trial and his conviction must therefore be
reduced. Again, we disagree.
Trial Record
During his direct examination,
Martinez admitted he had driven the Mustang involved in the May 1 shooting and
admitted approaching J.M.’s car just prior to the May 2 shooting. He effectively denied
however, testifying that each was an unplanned, spontaneous act by either
Rosales or Galindez that caught him by surprise.
During her cross-examination, the
prosecutor confronted Martinez with portions of his May 7, 2009 postarrest
interview by police detectives.
Galindez’s counsel cross-examined
Martinez after the prosecutor. Partway
through cross, Galindez’s lawyer sought to confront Martinez with statements he
made during his October 20, 2010 proffer to the district attorney. Martinez’s counsel objected, for two
reasons: (1) although not entirely
clear, apparently because it was part of an offer to cooperate, and (2) because
it was not proper impeachment. The
prosecutor also objected, “for the record,†arguing that “it appears to be in
violation of the proffer agreement.†The
trial court overruled the objections, specifically finding that use of the
proffer did not violate the terms of the proffer
agreement.
Martinez’s counsel then argued that
if Galindez was allowed to offer certain portions of the proffer, the entire
proffer should be admissible. The trial
court agreed.
Next, Galindez’s counsel argued
that the proffer agreement itself should be admitted. Martinez’s counsel objected, arguing that the
agreement “didn’t conform to established law.â€
The court overruled the objection, finding the proffer agreement itself
relevant on the issue of bias.
The bulk of Galindez’s counsel’s
cross sought to show that Martinez’s trial testimony, large portions of which
were consistent with the October 20 proffer, was, like the October 20 proffer,
fabricated to obtain immunity or a deal involving a plea to a lesser
charge. Counsel specifically pointed out
that Martinez told officers during the May 7 interview that he never saw the
gun used by Galindez but admitted during the October 20 proffer that he saw
Galindez at the carnival prior to the shooting and was aware Galindez was
armed.
B. Discussion
Penal Code
section 1192.4 prohibits the use of a withdrawn plea of guilty against a
defendant. Evidence Code section 1153
also prohibits such a use of a withdrawn plea, and also prohibits the similar
use of an offer to plead guilty. The purpose of these two statutes is to
promote the public interest by encouraging the settlement of criminal cases
without the necessity of a trial. (
745, overruled on other grounds as stated in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7.)
In People v. Tanner (1975) 45 Cal.App.3d 345, 351-352 (
based upon the same policy consideration, extended the rule to encompass
admissions, incidental or otherwise, made by a defendant in the course of bona
fide plea negotiations. In
defendant’s conviction when such admissions were presented as part of the
People’s case-in-chief. (
In People v. Crow (1994) 28
Cal.App.4th 440, 452 (Crow), Division
Four again revisited this issue, and significantly limited the holding of
“[W]e conclude that the rule of Tanner
-- that evidence of statements made or revealed during plea negotiations may
not be introduced by the People -- must be limited to those situations in which
those statements are offered as substantive evidence of guilt, either in the
prosecution’s case-in-chief or otherwise.
That rule does not prevent the prosecution from using evidence of those
statements for the limited purpose of impeaching the defendant regarding
testimony which was elicited either during the direct examination of the
defendant or during cross-examination which is plainly within the scope of
defendant’s direct examination.â€
Here, it is Crow, not
1 and May 2 shootings were not offered by the People as substantive evidence of
guilt during their case-in-chief, but by a codefendant after the defendant
testified in order to impeach testimony which incriminated that codefendant.
Martinez to be cross-examined by his admissions made during his proffer.
With respect to the October 20
proffer, Martinez contends the trial court erred in two other ways: (1) by admitting evidence of the proffer
agreement itself and (2) by admitting Martinez’s statements during the October
20 proffer that he was willing to act as an informant on 17 other unsolved
criminal cases. Martinez argues that
admission of the proffer agreement prejudiced him because it expressly provided
that the prosecutor would consider the credibility of his statement before
extending any plea agreement and, since no agreement was reached, it implied
the prosecutor found him not credible.
Martinez claims the reference to 17 cold cases prejudiced him because it
suggested he was involved in other criminal activity.
We first observe that both the
proffer agreement and Martinez’s willingness to act as an informant on 17 other
cases were relevant to his credibility as a witness: the first provided the terms of his proffer
and was thus relevant to the jury’s
evaluation of his motivation to provide the proffer and the second demonstrated
the lengths to which he was willing to go in order to obtain leniency, a matter
also relevant to his credibility. Both,
however, also presented areas of possible prejudice: the first did provide a vehicle for Galindez
to argue that the prosecutor did not
believe Martinez’s proffer (which Galindez did, in fact, argue) and the second
could have suggested that Martinez was involved in -- as opposed simply to
having information about -- 17 other criminal cases.
Reversal on these grounds, however,
is not appropriate. To the extent the
trial court’s balancing should have come out on the side of exclusion -- and we
expressly choose not to decide that point -- it is not reasonably probable that
Martinez would have obtained a better result had the evidence been
excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Although the prosecutor ethically could not
express her personal belief about Martinez’s credibility, her impeachment of
J.M. regarding statements he overheard Martinez make prior to the shooting and
her initial cross-examination of Martinez clearly demonstrated that the
People’s theory of the case was that Martinez expressly encouraged Galindez to
shoot, and his denial of such encouragement should not be believed by the jury. Thus, Galindez’s counsel’s closing argument
added little to what was always implicit in the People’s theory of the
case. With respect to the reference to
the 17 unsolved cases, no one argued or even suggested that Martinez was
involved in those cases, only that he claimed to have information about
them. In the context of other evidence
in this case -- especially Martinez’s questionable assertion that two shootings
committed in his presence by fellow gang members less than 48 hours apart were
complete surprises to him -- the error, if any, was harmless.
Assistance of Counsel
Martinez next contends that he
received ineffective assistance when his trial counsel failed to request
exclusion of Officer DeLuccia’s expert testimony based on his “bias†from
having been a victim of gang violence.
This contention is meritless.
Constitutionally deficient
representation requires proof of two factors:
(1) that counsel’s performance was deficient; in other words, it fell
below an objective standard or reasonableness based on prevailing norms; and
(2) the deficiency was material in the sense that but for counsel’s errors, the
outcome would have been more favorable to the defendant. (In re
Cudjo (1999) 20 Cal.4th 673, 687; see Strickland
v. Washington (1984) 466 U.S. 668, 687, 696.) When evaluating the adequacy of a lawyer’s
performance, reviewing courts typically defer to counsel’s reasonable tactical
decisions. (See People v. Wright (1990) 52 Cal.3d 367, 412, overruled on other
grounds as stated in People v. Williams (2010)
49 Cal.4th 405, 458-459.)
In the immediate case, trial
counsel objected to Officer DeLuccia’s testimony about being shot during a
confrontation with a Cypress Park gang member.
The trial court overruled the objection, finding the evidence more
probative than prejudicial. Having lost
that objection, trial counsel could have made a reasonable tactical decision
that proceeding with DeLuccia as the expert was in Martinez’s interest: (1) exclusion of DeLuccia would have simply
resulted in the prosecution calling another officer as its gang expert; (2)
DeLuccia was not shot by a gang member but by a fellow officer in a
confrontation with a gang member; and (3) under those circumstances, counsel’s
ability to argue that DeLuccia was biased because of the shooting presented a
net benefit. Thus, counsel’s performance
was not deficient.
Counsel’s performance was not
deficient for yet another reason:
“[c]ounsel is not ineffective for failing to make frivolous or futile
motions.†(People v. Thompson (2010) 49 Cal.4th 79, 122.) Here, there was no legal basis for
disqualifying DeLuccia altogether as an expert witness. A witness may testify as an expert if he has
the “special knowledge, skill, experience, training, or education sufficient to
qualify him as an expert on the subject to which his testimony relates.†(Evid. Code, § 720; see People v. Vang (2011) 52 Cal.4th 1038, 1044.) The trial court has wide discretion in
determining whether or not a witness is qualified to testify as an expert, and
its ruling will not be disturbed on appeal absent a clear abuse of that
discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175; People v. Williams (1989) 48 Cal.3d 1112, 1136.)
Based on his background, training,
and experience, Officer DeLuccia was clearly qualified to testify as an expert
on Hispanic gangs generally and the Cypress Park gang specifically. DeLuccia had been a police officer for 18
years, assigned to the Northeast Division (which encompasses the territory
claimed by Cypress Park) for five years, and within Northeast had been assigned
to the Gang Enforcement Detail for four years.
Cypress Park was one of the primary gangs DeLuccia monitored. During this experience, DeLuccia had
“hundreds†of contacts with gang members generally and Cypress Park members
specifically. He had investigated
numerous gang-related crimes, spoken to gang members, their families, and
members of the community terrorized by gangs.
The fact that DeLuccia had been shot during a confrontation with a
Cypress Park gang member does not undercut, in any way, these otherwise valid
expert qualifications.
We agree with the People. None of the cases cited by Martinez in his
brief stand for the proposition that an expert must be completely free from
bias before he can testify. (See
[impartiality of expert testimony regarding scientific acceptance of voiceprint
analysis questioned when expert was leading proponent of analysis];
778, 789-790 [expert testimony regarding inmates’ tendency to lie properly
excluded because of dubious scientific basis and because issue was not beyond
the common experience of the average juror]; People v. King (1968) 266 Cal.App.2d 437, 458 [scientific
acceptance of voiceprint analysis not established when based on subjective
opinion of sole proponent].) Nor is such
a rule, in our opinion, even workable.
Experts, oftentimes, are paid or, in this case, effectively employed, by
one side or the other, so there are always factors upon which an argument of
bias can be based. That Officer DeLuccia
was shot during an altercation with a Cypress Park gang member gave him,
perhaps, a more direct experience with gang-related violence than the average
officer who simply investigates gang crimes, but it did not make him so
fundamentally different that he could be properly disqualified from testifying
despite otherwise sufficient qualifications.
The jury was fully apprised of the shooting and could evaluate its
impact on DeLuccia’s objectivity. That
was sufficient to ensure Martinez’s right to a fair trial. Any attempt to disqualify DeLuccia would have
been frivolous and properly denied.
IV. Sua Sponte Voluntary
Manslaughter Instruction
Martinez next contends the trial
court had a sua sponte duty to instruct the jury on heat of passion voluntary
manslaughter. Again, we find this
contention to be without merit.
Manslaughter is “the unlawful
killing of a human being without malice.â€
(§ 192.) A defendant who kills in
a sudden quarrel or heat of passion lacks malice and is guilty of voluntary
manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Breverman (1998) 19 Cal.4th 142, 163.) Although section 192 refers to “sudden
quarrel or heat of passion,†it is provocation that distinguishes this form of
voluntary manslaughter from murder. (
accord, People v. Avila (2009) 46
Cal.4th 680, 705.) The provocation that
prompts a defendant to homicidal conduct must be caused by the victim, or be
reasonably believed by the defendant to have been caused by the victim. (Lee, at
p. 59; accord, Avila, at p.
705.) The provocation must also be such
that would “cause an ordinarily reasonable person to act rashly and without
deliberation, and from passion rather than judgment.†(People
v. Koontz (2002) 27 Cal.4th 1041, 1086.)
In
402-403, the Supreme Court summarized the standards which define a trial
court’s sua sponte obligation to instruct on lesser included offenses: “A defendant’s constitutional right to have
the jury determine every material issue presented includes the obligation of a
trial court to instruct the jury on the general principles of law relevant to
the issues raised by the evidence.
[Citations.] Thus, a trial court
must give ‘“‘instructions on lesser included offenses when the evidence raises
a question as to whether all of the elements of the charged offenses were
present [citation], but not when there is no evidence that the offense was less
than that charged.’â€â€™ [Citation.] ‘As our prior decisions explain, the
existence of “any evidence, no matter
how weak†will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit consideration†by the
jury. [Citations.] “Substantial evidence†in this context is
“‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[]’†that the lesser offense, but not the greater, was committed.’ [Citation.]â€
In the
immediate case, there was no substantial evidence that would support a
voluntary manslaughter instruction. The
confrontation between J.M. and Martinez was not such that a reasonable person
might have been provoked to act rashly and without deliberation: narrowly missing a pedestrian with a car and
failing to roll down a car window when confronted by the pedestrian do not
legally qualify as provocation sufficient to mitigate a homicidal reaction, in
this case encouraging a fellow gang member to “Shoot that fool. Pull out the strap.â€
The trial
court was not obligated to instruct on voluntary manslaughter for an additional
reason. Martinez’s defense was not that
he participated in the shooting out of rage or anger, but, instead, that he did
not participate at all. His defense was
that he never encouraged Galindez to shoot and that he was completely surprised
when Galindez did so. Thus, Martinez
denied all complicity in the shooting.
“Generally, when a defendant completely denies complicity in the charged
crime, there is no error in failing to instruct on a lesser included
offense.†(People v. Gutierrez (2003)
112 Cal.App.4th 704, 709.) Martinez
provides no reason why we should ignore this rule under the facts of this
case. Indeed, it is apparent why his
trial counsel, as a tactical matter, did not affirmatively request such an
instruction. Doing so would have
required him to argue to the jury that his client did not encourage Galindez to
shoot but, if he did, he did so out of anger.
Arguing from both sides of one’s mouth is rarely a good way to convince
a jury to acquit or convict of a lesser charge.
V. Sentencing Error
The trial
court sentenced appellants on separate dates.
A. Murder and Attempted Murder
With
respect to Martinez, the trial court sentenced him to 25 years to life for the
first degree murder of Solis, plus an additional 15-year determinate term for
the gang allegation. For the willful,
deliberate, and premeditated attempted murder of J.M., the trial court
sentenced Martinez to a consecutive term of “life or 15 to life,†and imposed
but stayed a 15-year determinate term for the gang allegation.
With
respect to Galindez, the trial court sentenced him to 25 years to life for the
first degree murder of Solis, plus an additional consecutive term of 25 years
to life for the firearm enhancement, plus an additional 15-year determinate
term for the gang allegation. With respect
to the willful, deliberate, and premeditated attempted murder of J.M., the
trial court sentenced Galindez to 15 years to life, plus a 10-year determinate
term for the firearm enhancement, plus an additional 15-year determinate term
for the gang allegation. The trial
court, however, stayed execution of the 15-year term for the gang allegation
pursuant to section 654.
Where the
sentence for an underlying offense is an indeterminate term, the punishment for
any gang allegation found true in connection with that offense is not an
additional determinate term under section 186.22, subdivision (b)(1)(C), but a
minimum term before parole eligibility of 15 years pursuant to section 186.22,
subdivision (b)(5). (
1010-1011.) This rule applies even where
it will have no practical effect, such as in the case of indeterminate terms
for offenses that by definition already carry minimum terms of 15 years or
greater. (See id. at p. 1009 [discussing first and second degree murder].) The trial court therefore improperly imposed
additional 15-year enhancements for the gang allegations found true in
connection with convictions on counts 1 and 2, both of which by law required
indeterminate terms.
B. Shooting at an Occupied Car
In their
original briefs, the parties did not address the legality of the sentences
imposed for the shooting at an occupied car convictions returned on counts 3
and 4. We requested supplemental
briefing on this issue.
With respect to Martinez’s
conviction for the May 1 shooting at an occupied car (count 3), the trial
court’s stated sentence was not clear:
“But as to count three [the May 1
shooting], which was that earlier situation, probation is denied. [¶]
The defendant is sentenced to the mid term of five years, but pursuant to
the gang allegation it’s 15 years to life on that. So that’s consecutive.â€
In the abstract of judgment, the
clerk interpreted this to mean a midterm of five years for the substantive
offense, plus a consecutive determinate term of 15 years for the gang allegation.
With
respect to the conviction for the May 2 shooting at an occupied car (count 4),
the trial court sentenced Martinez to a determinate midterm of 5 years for the
substantive offense, plus a consecutive determinate term of 15 years for the
gang allegation, but stayed the total term of 20 years pursuant to
section 654. The trial court
sentenced Galindez to an indeterminate term of 15 years to life for the
substantive offense, plus an additional indeterminate term of 25 years to life
for the firearm enhancement, plus an additional unstated term for the gang
allegation. The trial court then stayed
the entire term pursuant to section 654.
Neither the
sentences imposed on Martinez nor the sentence imposed on Galindez for the
section 246 convictions were legal. The
sentence for shooting at an occupied car where a
found true is an indeterminate term, with a minimum term the greater of the
determinate term (including enhancements) that would otherwise be imposed
pursuant to section 1170, or 15 years.
(§ 186.22, subd. (b)(4); People
v. Sok (2010) 181 Cal.App.4th 88, 96-99.)
If used to calculate the minimum term under option one, above,
enhancements are not added to the
indeterminate term. (
alternative penalty, not a determinate term enhancement. (People
v. Sok, supra, at p. 96.)
Thus, pursuant to section 186.22,
subdivision (b)(4), Martinez’s sentences on counts 3 and 4 should be
indeterminate terms of 15 years to life.
There are three possible indeterminate terms for Galindez on count
4: the low term of 3 years for the
section 246 conviction, plus 25 years for the gun enhancement for a total term
of 28 years to life; the midterm of 5 years for the section 246 conviction,
plus 25 years for the gun enhancement for a total term of 30 years to life; or
the high term of 7 years for the section 246 conviction, plus 25 years for the
gun enhancement for a total term of 32 years to life. (See People
v. Sok, supra, 181 Cal.App.4th at pp. 96-98.)
Martinez contends that he cannot be punished with the
indeterminate term described above because section 186.22, subdivision (b)(4),
was not cited in support of the gang allegations in the information or in
support of the gang allegation findings on the verdict forms. He argues he did not receive adequate notice
that the gang allegations would subject him to an indeterminate term if he was
convicted of the offenses charged in counts 3 and 4. For the reasons that follow, we
disagree.
In connection with counts 3 and 4, the information
stated gang allegations in the appropriate statutory language, but cited as the
legal authority section 186.22, subdivision (b)(1)(C), rather than section
186.22, subdivision (b)(4). The verdict
forms likewise stated the gang allegations in the appropriate language but also
referenced section 186.22, subdivision (b)(1)(C), as the statutory basis. Section 186.22, subdivision (b)(1)(C),
requires an additional 10-year term when the gang allegation is found
true. It, however, only applies to
violent felonies, which a section 246 violation is not. (See § 186.22, subd. (b)(1)(C),
§ 667.5, subd. (c).) Consequently,
Martinez argues, he cannot receive indeterminate terms because the correct
statutory subdivision was not cited and he cannot receive 10-year determinate
terms because the subdivision cited does not legally apply to his convictions.
In support of his argument, Martinez cites two
cases: People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and
1014 (Botello). In Mancebo,
a jury convicted the defendant of forcible rape (§ 261, subd. (a)(2))
against one victim on one date and forcible sodomy (§ 286, subd. (c)) against a separate victim on
a different date. The jury also found
true two, “One Strike†circumstances (§ 667.61, subd. (e)) in connection with each count: use of a gun and kidnapping with respect to
the rape victim and use of a gun and tying and binding with respect to the
sodomy victim. (Mancebo, supra, at p. 740.)
The two One Strike circumstances found true on each count made defendant
eligible for a 25-to-life indeterminate term on each count. (Id. at
p. 742; see § 667.61, subd. (a).)
The jury also found true personal use of a firearm
allegations on each count (§ 12022.5, subd. (a)). (
For a reason not expressly disclosed by the trial record, the People did
not allege a “multiple victim†One Strike circumstance (§ 667.61, subd. (e)), so the
jury made no such finding on either count.
(Mancebo, supra, at p. 739.)
The trial court sentenced defendant to two consecutive
25-to-life One Strike terms for the two counts, but did so by substituting a
“multiple victim†One Strike circumstance for the proved gun use circumstance
with respect to each victim. This
allowed the trial court then to add two consecutive 10-year determinate terms
for the section 12022.5 personal use allegations, since the gun use was no
longer needed to establish the two circumstances required for the
25-to-life term under the One Strike enhancement. (Mancebo,
supra, 27 Cal.4th at p. 740.) On
appeal, the People acknowledged that the multiple victim circumstance was
neither separately alleged nor proved at trial, but argued that it was
“effectively†pleaded and proved by the substantive counts alleging different
victims and the jury’s return of guilty verdicts on those counts. (Id.
at pp. 744-745.)
The Supreme Court disagreed. The court found a
prosecution never gave notice that it intended to use the fact of multiple
victims to seek the indeterminate One Strike term, and then also use one of the
pleaded “One Strike†facts instead to support a consecutive 10-year gun
enhancement. (Mancebo, supra, 27 Cal.4th at p. 753.) The court also found statutory error because
the multiple victim circumstance was never formally pleaded and proved, as
required by the One Strike statute. (
The court therefore struck the two 10-year gun enhancements and instead
required the gun use to be used in support of the One Strike indeterminate
terms. (Mancebo, at p. 754.)
In Botello,
were identical twin brothers -- of two counts of willful, deliberate and
premeditated attempted murder (§ 664, § 187). The jury also
found true allegations that each defendant (1) personally discharged a firearm
causing great bodily injury (§ 12022.53, subd. (d)) and (2) committed
the crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). (Botello,
supra, 183 Cal.App.4th at pp. 1016, 1017.)
For the gun enhancements, the trial court imposed consecutive 25-to-life
indeterminate terms. (
On appeal to Division Four of this
court, the People conceded and the court agreed that the evidence was
insufficient to support the true findings on the gun allegations because the
evidence did not establish which of the two defendants actually discharged the
weapon. (Botello, supra, 183 Cal.App.4th at p. 1022.) Nevertheless, the People argued that the
25-to-life indeterminate terms should be upheld based upon
section 12022.53, subdivision (e)(1), which provides for such a term when a
defendant is convicted of certain offenses, including attempted murder, and the
jury also finds that (1) any
principal in the crime discharged a firearm, and (2) the defendant
committed the crime to benefit a criminal
street gang. (Botello, at p. 1022.) The People argued that the elements of
section 12022.53, subdivision (e)(1) were satisfied since (1) the jury
convicted both defendants of attempted murder (meaning both were therefore
principals), (2) the evidence showed that one of the two discharged the firearm
causing great bodily injury, and (3) the jury found that both committed the
crime to benefit a criminal street gang.
(Botello, supra, at p. 1022.)
Division Four rejected the People’s
argument based largely on Mancebo. The court noted that an enhancement pursuant
to section 12022.53, subdivision (e)(1), like One Strike circumstances pursuant
to section 667.61, subdivision (e), must be separately pleaded and proved to
the jury. (Botello, supra, 183 Cal.App.4th at p. 1026.) Because that was not done, the People could
not rely on section 12022.53, subdivision (e)(1) to save the firearm
enhancement terms: “to apply section 12022.53,
subdivision (e)(1) for the first time on appeal would violate the express
pleading requirement of that provision, and defendants’ due process right to
notice that subdivision (e)(1) would be used to increase their sentences.†(Botello,
supra, at p. 1027.)
Both Mancebo and Botello are
distinguishable from, and therefore not dispositive of, the immediate
case. In both, the People attempted to
rely on facts not separately pleaded
and proved ‑‑ as statutorily required ‑‑ but implicitly
proved by the verdicts on the substantive charges. In contrast, both the information and the verdict forms in the
immediate case separately stated the gang allegations in the appropriate
statutory language. The court properly
instructed the jury on the elements of the gang allegations. Finally, the jury
returned separate true findings which are amply supported by the trial
record. Martinez does not contend
otherwise. Under these circumstances,
the erroneous citation to section 186.22, subdivision (b)(1)(C) and the failure
to cite section 186.22, subdivision (b)(4) do not require reversal. The allegations as written gave Martinez
sufficient notice that the People intended to prove a gang allegation and use
that to increase his sentence on counts 3 and 4. “[I]t is the language of the accusatory
pleading which is controlling and not the specification of the statute by
number.†(People v. Thomas (1987) 43 Cal.3d 818, 826, 831.)
Further, in both Mancebo
and Botello the record
demonstrated that the failure to allege and prove the enhancements separately
may have been a discretionary charging decision rather than due to mistake or
excusable neglect. (Mancebo, supra, 27 Cal.4th at p. 749; see Botello, supra, 183
Cal.App.4th at p. 1028.) The record
supports the opposite finding here: the
People separately pleaded and proved an allegation based on the correct
statutory language but cited, as legal authority, an inapplicable statutory
subdivision.
Martinez received notice that the People intended to
prove gang allegations pursuant to section 186.22, subdivision (b), and use
those allegations to increase his sentences on counts 3 and 4. The allegations were separately pleaded and
proved to the jury, and Martinez provides us with no argument how his defense
would have differed had the correct subdivision been cited. Indeed, given the record, we cannot conceive
of any such prejudice. The mandatory
sentence on counts 3 and 4, therefore, is the indeterminate term set forth in
section 186.22, subdivision (b)(4).
(See People v. Thomas, supra, 43
Cal.3d at p. 831; People v. Sok, supra, 181
Cal.App.4th at p. 96, fn. 8; cf. Mancebo,
supra, 27 Cal.4th at p. 749 [harmless error analysis inapplicable where
record demonstrates discretionary charging decision]; Botello, supra, 183 Cal.App.4th at p. 1028 [same].)
Appellants’ sentences will be
vacated and the case remanded to the trial court for resentencing consistent
with this opinion.
In light of the new indeterminate
terms that will be imposed on counts 3 and 4, the trial court, on remand, must
also decide which sentences should be stayed pursuant to section 654. (See People
v. Sok, supra, 181 Cal.App.4th at pp. 99-100.)
The sentences are vacated and the case is remanded for
resentencing consistent with this opinion.
In all other respects, the judgments are affirmed.
SORTINO, J.
title="">*
We concur:
FLIER, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1]
statutory references are to the Penal Code unless otherwise designated.
decline, at this point, to detail further how the trial court imposed the
sentences in this case. The record is
not altogether clear and shows inconsistencies between the reporter’s
transcript and the clerk’s transcript.
At this point, it is sufficient to say that the sentences imposed, at
least in part, are unauthorized by law and appellants must be resentenced. We discuss this issue further in part V.
