Mendoza
Filed
8/1/12 P. v. Mendoza CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ABEL JULIO MENDOZA,
Defendant and
Appellant.
F062048
(Super.
Ct. No. VCF235060)
APPEAL from
a judgment of the Superior Court of
Robert
Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
After gunfire hit a car driving through Ducor, a small
community in Tulare County, a jury found Abel Julio Mendoza guilty of four
counts of attempted willful, deliberate, and premeditated murder, four counts
of assault with a firearm, and one
count of shooting at an occupied motor vehicle and found
personal-discharge-of-firearm allegations true.
On appeal, he challenges the judgment on three grounds. We affirm.
BACKGROUND
On January 24, 2011, the district attorney filed an amended
information that charged Mendoza with four counts of attempted willful,
deliberate, and premeditated murder (counts 1-4; Pen. Code, §§ 187, subd. (a),
664),
title="">[2] one count of shooting at an occupied motor
vehicle (count 5; § 246), and four counts of assault with a firearm (counts
6-9; § 245, subd. (a)(2)). Counts 1-4
alleged his active participation in a criminal street gang (§ 186.22, subds.
(b)(1)(C), (b)(5)), his personal use of a firearm (§ 12022.53, subd. (b)), and
his personal and intentional discharge of a firearm (§ 12022.53, subd.
(c)). Count 5 alleged his active participation
in a criminal street gang (§ 186.22, subd. (b)(4)), his personal use of a
firearm (§ 12022.53, subd. (b)), and his personal and intentional discharge of
a firearm (§ 12022.53, subd. (c)).
Counts 6-9 alleged his active participation in a criminal street gang (§
186.22, subd. (b)(1)(C)) and his personal use of a firearm
(§ 12022.5, subd. (a)(1).
On February 1, 2011, a jury found Mendoza guilty as charged
and found each allegation true. On March
3, 2011, the court sentenced him to an aggregate term of 35 years to life. The components of his sentence were a term of
15 years to life with the possibility of parole for attempted willful,
deliberate, and premeditated murder plus 20 years for personal and intentional
discharge of a firearm on count 1 and concurrent terms of 15 years to life with
the possibility of parole plus 20 years for personal and intentional discharge
of a firearm on counts 2-5. The court
imposed and stayed sentence on counts 6-9.
DISCUSSION
1. Evidence of Exercise of
State Constitutional Right
Mendoza argues that the court’s ruling excluding evidence
of the refusal of a victim to speak with a defense investigator in exercise of
a state constitutional right was
federal confrontation clause error, state constitutional error, and state
evidentiary error. The Attorney General
argues that there was no error and that error, if any, was harmless. We agree with the Attorney General that
error, if any, was harmless.
The issue before us arose out of a brief exchange on
cross-examination between Mendoza’s attorney and Belen Avila (Belen).
“Now,” he asked her, “did you ever talk to a man named Jake Torrence
about this case” She replied, “I’ve
never spoke to him, but he went looking for me.” He inquired of her, “Did you refuse to talk to
him,” and she answered, “Yes.” The
prosecutor interjected, “Objection. Move
to strike based on relevance.” The court
ruled, “Granted. The question and the
answer will be struck,” and admonished, “Jurors, you’re not to consider those
matters or [sic] for any purpose.”
Later, out of the presence of the jury, the court
identified Jake Torrence as an investigator for the public defender’s office
and solicited argument by counsel about the ruling.
Mendoza’s attorney contended that Belen’s decision “to discuss the
matter with sheriff deputies but not defense investigators demonstrates bias on
her part” and that the evidence was “relevant for that purpose.” He grounded his argument in the “Right to
Truth-in-Evidence” provision of the California Constitution,
as the right at issue, and in the Sixth
Amendment confrontation clause of the United States Constitution. The prosecutor argued that Belen’s decision
“goes to the heart of Marcy’s [sic]
law.[
title="">[6]]
If [she] did not want to speak to the defense or their investigators,”
then “the California Constitution” guarantees that “she’s permitted to exercise
that right.” The court affirmed the
original ruling.
name="_ftnref7" title="">[7]
Our Supreme Court has observed that Marsy’s Law “amended
the California Constitution to guarantee crime victims a number of
rights.” (Kling v. Superior Court (2010) 50 Cal.4th 1068, 1080.) As so
amended, the California Constitution mandates the prompt enforcement of those
rights by the courts.
name="_ftnref8" title="">[8]
The Attorney General argues, in
reliance on Evidence Code section 913,
discovery request is in effect the exercise of a privilege that may not be
commented on.” In a case arising before
the adoption of Marsy’s Law, our Supreme Court held, “The jury may not draw any
inference from a witness’s invocation of a privilege.” (People
v. Doolin (2009) 45 Cal.4th 390, 441.)
Mendoza argues, in reliance on
another case arising before the adoption of Marsy’s Law, that Belen’s refusal
to talk with Torrence “shows the possibility of bias against [him].” In that case, People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse), our Supreme
Court held, “A witness’s refusal to talk to a party is relevant to that
witness’s credibility because it shows the possibility of bias against that
party.” (Id. at p. 494.) With
commendable candor, Mendoza acknowledges the holding in Hillhouse that the ruling at issue in that case sustaining a
relevance objection to evidence of the witness’s refusal to talk was harmless
error under state law but was not a violation of the federal confrontation
clause. (Id. at pp. 494-495.)
Accordingly, he “raises the issue to preserve it for federal
review.” Duly noted.
The Attorney General argues that
the witness at issue in Hillhouse “was
not a victim” but that Belen was a
victim who “had the benefit of relying on the newly-created right of crime
victims to decline to talk with the defense.”
Mendoza insists, “Although this section gives victims the right to
refuse to be interviewed, it says nothing about the admissibility of evidence
of that refusal.” The Attorney General
retorts, “But that would punish her for exercising a constitutional
right.” On a record of overwhelming evidence
of Mendoza’s guilt, we need not lower our oars into those troubled waters.
Assuming, without deciding, that
the exclusion of Belen’s refusal to speak with Torrence was error, the error
was harmless beyond a reasonable doubt.
(See Delaware v. Van Arsdall (1986)
475 U.S. 673, 680, citing, e.g., Davis v.
Alaska (1974) 415 U.S. 308, 318, Chapman
v. California (1967) 386 U.S. 18, 24; but see Hillhouse, supra, 27 Cal.4th at pp. 494-495.) Belen, a Fresno State University student,
grew up in Ducor, moved out when she was 18, and stayed with her parents on
weekends and vacations. As she drove
from her aunt’s home to her parents’ home one Friday night in the car that her
brother Ismael usually drove, three passengers were in the car with her – her
sister-in-law Selena Casillas in the front passenger seat, her sister-in-law
Karla Hernandez in the rear seat behind Casillas, and her niece Aliene Avila
(Ismael’s and Casillas’s baby) in a car seat behind her. Turning at the T-intersection in front of
Mendoza’s home, she saw, illuminated by the headlights of the car, seven people
in the yard of his home, all of whom she knew, all of whom started running
toward the car.
One was Mendoza, who does not get
along with Ismael. He had shot at Ismael
a couple months before. Mendoza was the
husband of one of Belen’s childhood friends, Maria Maciel. Another person in the yard was Albert Chavez,
whom Belen knew from elementary school.
He used to hang out with Ismael but, once they got to high school,
Chavez picked the Norteños and Ismael chose the Sureños. Also in front of Mendoza’s home was Hector
Leon, who “hangs around with” and “backs up the Norteños.” Luis Selveldra was there, too. Leon and Selveldra used to be Ismael’s
friends, but once they went to high school they stopped being his friends. Ismael had had problems with both Leon and
Selveldra before. Two others she saw in
Mendoza’s yard were Manuel Ramos and Juan Saldana, both neighbors of her
parents. As far as she knew, Ramos was
not part of a gang. The other person she
saw was Gerardo Lucio, whom she had known since she was a little girl and who
was best friends with one of her uncles, on good terms with her parents, and
Mendoza’s neighbor. She had never seen
him take sides with the Norteños or the Sureños.
Belen testified that Mendoza,
Chavez, Leon, and Selveldra started to run toward Ismael’s car. Mendoza, who was in front of everyone else,
pointed something he pulled out from the side of his waist. No one else pointed anything. After Hernandez said to “duck,” Belen ducked
and heard two shots. Belen’s niece
started to cry after a shot hit the door next to her. Belen brought her head above the dashboard,
accelerated, ran a stop sign, and drove to her parents’ home, where she called
911. She found two bullet holes in the
car, one under the gas tank and one next to where her niece was sitting. She was absolutely sure Mendoza fired the
shots.
title="">[10]
Apart from minor discrepancies
characteristic of any trial in which multiple eyewitnesses communicate individual
perceptions of the same traumatic event, Casillas and Hernandez, both of whom
were in the car with Belen, testified congruently. Casillas testified that Mendoza and the
others, “all standing in front of the yard,” were “looking at us” or “at the
car.” She saw Mendoza reach with his
hand and “pull something out” and “heard about 2 or 3 gunshots.” After
Hernandez “screamed to duck,” Aliene “started crying.” Mendoza and the others probably “thought it
was Ismael” since she saw no one else pull anything out. Hernandez testified that as the car Belen
drove approached the house she saw Mendoza, in a group of seven to 10 people,
pull out a gun and point the gun at the people in the car. She yelled “duck” and then heard “about
three” gunshots.
Along with the devastating
evidence of Mendoza’s guilt in Belen’s, Casillas’s, and Hernandez’s testimony,
the evidence of the criminal street gang motives of disrespect and retaliation
and of Mendoza’s and Ismael’s opposing gang affiliations refutes Mendoza’s claim
of prejudice. Error, if any, in the court’s ruling was harmless beyond a reasonable doubt.
2. Sufficiency of the
Evidence: Premeditation and Deliberation
Mendoza argues that an insufficiency of the evidence of
attempted willful, deliberate, and premeditated murder is in the record. The Attorney General argues the
contrary. We agree with the Attorney
General.
Our role on a challenge to the sufficiency of the evidence
is limited. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206 (Ochoa).) Our duty is to review the entire record in
the light most favorable to the prosecution, to presume in support of the
judgment every fact a reasonable trier of fact could reasonably deduce from
both circumstantial and direct evidence, and to determine whether the record discloses
substantial evidence – credible and reasonable evidence of solid value – such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).)
Our analysis commences with a review of the record by the usual rules on appeal for a challenge
to the sufficiency of the evidence. (
1206.) Mendoza and Ismael were members
of opposing criminal street gangs who had a history of violent confrontations
with each other. On the night of the
shooting, Mendoza had a single-barrel shotgun stashed in the trunk of a car
outside his house. On seeing Ismael’s
car approach, he said, “Here we go, this fool is starting shit again.” He got
the shotgun from the trunk of the car and opened fire, striking the car
twice. From that evidence, a jury could
reasonably infer that he had a motive to kill Ismael, that he assumed Ismael
was driving the car he usually drove, and that as soon as he saw the car
approach he tried to execute his plan to kill Ismael with premeditation and
deliberation. (See, e.g.,
561-563; People v. Romero (2008) 44
Cal.4th 386, 400-401; People v. Villegas (2001)
92 Cal.App.4th 1217, 1223-1225.)
In a due process challenge to the sufficiency of the
evidence, the “critical inquiry” is “to determine whether the record evidence
could reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson
v. Virginia (1979) 443 U.S. 307, 318 (Jackson).) In that inquiry, the reviewing court does not
“‘ask itself whether it believes that
the evidence at the trial established guilt beyond a reasonable doubt’” but
only “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” (Id. at pp. 318-319, italics in original.) Mendoza’s argument simply asks us to reweigh
the facts. That we cannot do. (People
v. Bolin (1998) 18 Cal.4th 297, 331-333 (Bolin).)
3. Sufficiency of the
Evidence: Two Counts of Attempted Murder
Mendoza argues that the reversal of two convictions of
attempted willful, deliberate, and premeditated murder is necessary since the
record shows he fired only two gunshots.
The Attorney General argues that the record shows his intentional
creation of a kill zone in which the trier of fact could reasonably infer his
intent to kill everyone in the immediate vicinity. We agree with the Attorney General.
The crux of Mendoza’s argument is that he “fired at most
three shots at a car containing four people” and “did not use force calculated
to kill everyone in the car” so the “number of convictions is limited to the
number of shots fired.” He relies
primarily on People v. Perez (2010)
50 Cal.4th 222 (Perez), which
adjudicated the issue of whether the firing of a single bullet at a distance of
60 feet, from a car going 10 to 15 miles per hour, at a group of eight people
constituted a sufficiency of the evidence of “multiple convictions of attempted
murder where no particular individual was
being targeted, and one shot was fired at the group,” striking a single
person. (Id. at p. 224, italics added.)
Our Supreme Court held that “where the shooter indiscriminately fires a
single shot at a group of persons with specific intent to kill
particular individual or individuals, he is guilty of a single count of
attempted murder.” (Id. at p. 225, italics in original; italics added.)
On the record before us, Perez is inapposite. Belen
testified that after seeing Mendoza shoot she heard two shots. Casillas testified that she “heard about two
or three gunshots.” Hernandez testified
that after she saw Mendoza point a gun at the people in the car she yelled
“duck” and heard “like about three” shots.
A sheriff’s deputy testified that Hernandez told her shortly after the
shooting that she heard four shots fired at the car. Belen testified that she saw two bullet holes
in the car. A detective testified to the
recovery of fragments of two projectiles.
On that record, a jury could reasonably infer that Mendoza fired two,
three, or four shots.
The exact number of shots that Mendoza fired is not
determinative, however. As our Supreme
Court holds, “a person who shoots at a group of people [can be] punished for
the actions towards everyone in the group even if that person primarily
targeted only one of them.” (
329 (Bland).) With a sufficiency of the evidence of the attempted
willful, deliberate, and premeditated murder of Ismael in the record (
infer that Mendoza thought Ismael was driving the car, that his passengers, if
any, were fellow Sureños, and that he intended to kill not just Ismael but
everyone in the car. Whether that was by
hitting each person with a bullet or by causing the car to crash is immaterial.
The fact that “the person desires to kill a particular
target does not preclude finding that the person also, concurrently, intended
to kill others within what [is] termed the ‘kill zone.’” (Bland,
supra, 28 Cal.4th at p. 329.) “‘This
concurrent intent [i.e.,
“kill zone”] theory is not a legal doctrine requiring special jury
instructions’” but “‘is simply a reasonable inference the jury may draw in a
given case: a primary intent to kill a
specific target does not rule out a concurrent intent to kill others.’” (People
v. Smith (2005) 37
Cal.4th
733, 746, quoting Bland, supra, at p.
331, fn. 6.) Even if Mendoza might not
have seen or known the identities of all of his victims, that “did not somehow
negate [his] express malice or intent to kill as to those victims who were
present and in harm’s way, but fortuitously were not killed.” (People
v. Vang (2001) 87 Cal.App.4th 554, 564.)
Our review of the record satisfies us that “
found the essential elements of the crime beyond a reasonable doubt.” (Jackson,
supra, 443 U.S. at pp. 318-319, italics in original.) Again we decline Mendoza’s tacit invitation
to reweigh the facts. (
331-333.)
DISPOSITION
The judgment is affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Franson, J.
relevant (post).
Code unless otherwise noted.
