P. v. Meraz
Filed 1/22/13 P. v. Meraz
CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR MERAZ,
Defendant and Appellant.
2d
Crim. No. B235143
(Super.
Ct. No. 2009013585)
(Ventura County)
Victor
Meraz appeals from judgment after conviction by jury of
circumstances allegations to be true: that Meraz committed murder by
intentionally discharging a firearm from inside a motor vehicle with intent to
kill the person outside (§ 12022.53, subd. (b)); and that he intentionally
killed his victim while an active participant in a street gang, to further the
gang's activities. (§ 190.2, subd.
(a)(22).) The jury also found true
allegations that he personally and intentionally discharged a firearm causing
death and that he committed murder for the benefit of a street gang. (§§ 12022.53, subds. (c) & (d),
186.22, subd. (b).)
The
trial court sentenced Meraz, who was a minor, to life in prison without
possibility of parole (LWOP). (§
190.5.) For the firearm enhancements, it
imposed a consecutive term of 25 years to life, and imposed and stayed a
20-year consecutive term. (§ 12022.53,
subds. (c) & (d).) For the gang
enhancement, it imposed a consecutive 10-year term. (§ 186.22, subd. (b)(1)(C).)
We
reject Meraz' contention that the trial court did not properly instruct the
jury in response to a question about self-defense,
but we vacate the LWOP sentence and remand so the court may reconsider its
sentencing discretion in view of the United States Supreme Court's decision in
[183 L.Ed.2d 407, 424] (Miller). We also conclude that the trial court imposed
an incorrect security fine, should not impose a 10-year gang enhancement on
remand, and should not impose a parole restitution fine if the sentence on
remand does not include a period of parole.
FACTUAL AND
PROCEDURAL BACKGROUND
Meraz
shot and killed a rival gang member, Alberto "Payo" Avalos. Meraz
and Jorge Velasco
name="_ftnref2" title="">[2] were members of The Boyz
gang. Alberto Avalos was a member of Lil
Boyz, a rival gang.
Velasco
drove Meraz home through Lil Boyz territory at night. Velasco told an informant that Meraz was in
the back of the car, "talking shit," and that Meraz yelled,
"[T]he Boyz" as they drove by a group of Lil Boyz members. A car blocked Velasco's path. Meraz pointed a gun out the rear window and
shot Avalos in the chest. Velasco
reversed the car and they drove away through gunfire.
Meraz later
told a jail informant that he and Velasco went into Lil Boyz territory that
night "on a . . . mission" because Avalos had
shot a member of their gang. Meraz said, "That fool had to go,
homie." He said, "he capped my
homie a couple months before, homie.
Fuckin', this is perfect timing, let him have it, fool." He said, "I went over there to fuckin'
put a name out for myself." Meraz
told the informant that he had a "big[] smile" when Avalos "hit
the floor." He said he was not
scared and he was not "loaded."
Meraz told the informant that killing was, "like a drug." These statements were all recorded. In a separate, recorded conversation, Meraz
told Velasco, "I was going to hit the whole fuckin'--the whole crowd. Pow, pow, but [the gun] jammed on me."
Meraz
testified at trial that he shot Avalos out of fear. He said he was very drunk. He realized he was in rival gang territory
when Velasco stopped the car. Lil Boyz
members approached and he yelled, "Jorge, go leyva." Velasco gave him a gun. He panicked because they were "sitting
ducks." He saw the Lil Boyz members
reaching into their pockets or waists before he shot. He said his recorded statements were lies
that he told out of fear and in order to gain protection in jail.
The
court gave standard instructions on voluntary manslaughter, self-defense and
imperfect self-defense. Neither side
requested, and the court did not give, CALCRIM No. 3472 (the right to
self-defense may not be contrived).
In
closing argument, the prosecutor said that imperfect self-defense was not
available to Meraz because he "provoked the quarrel by calling out his
gang," rolling down his window, and "talking shit to Payo." She said, "You cannot go into a
situation on the offensive as an aggressor seeking out a confrontation and then
contrive self-defense to explain your actions."
During
deliberations, the jurors asked, "What is the legal definition of
contrived self-defense as instructed by the prosecutor?" After consulting with counsel, the court
asked the jurors to be more specific.
They responded, "If the defendant acts in a way that he knows may
incite violence, would the defendant be justified by law to commit homicide in
defense against violence incited by the defendant?"
With
the agreement of counsel and consistent with CALCRIM No. 3472, the trial court
responded, "A person does not have the right
to self-defense if he or she provokes a fight or quarrel with the intent to
create an excuse to use force." The
jury resumed deliberations, and then reported they were "hung up on
self-defense with a vote of 10 to 2 on all counts." The court ordered them to continue
deliberation. They requested read back
of the testimony of Meraz and two other witnesses. They reached a verdict the following day.
The
court selected a sentence of LWOP based on its finding that the crime involved
a high degree of violence and danger, that Meraz was armed, that he is a danger
to society and that he had numerous sustained juvenile petitions. The Court stated it was "mindful of the
fact that section 190.5[,] subdivision [(b)] has been interpreted to express a
presumptive sentence of life without possibility of parole for youthful
offenders convicted of first-degree murder [citing] People v. Guinn (1994) 28 Cal.App.4th 1130, 1145." It said, "However, the Court is also
obligated to consider the factors listed in Penal Code section 190.3 and
California Rules of Court [rules] 4.421 and 4.423 in determining whether the
appropriate sentence is 25 to life or life without the possibility of
parole."
DISCUSSION
Claim of Instructional Error
Meraz
contends the court should have responded to the jury's question by instructing
them that a person's knowledge that their conduct might incite violence does
not render self-defense unavailable. (
616.) He forfeited the contention.
Meraz'
counsel agreed that the court should give CALCRIM No. 3472 in response to the
juror's question. "I'm afraid I
must acquiesce, your Honor. It appears
from this note that they are asking for something specific. [CALCRIM No.] 3472 seems to cover
that." Meraz did not request any
modification. (People v. Dykes (2009) 46 Cal.4th 731, 802 [a party who believes
the court's response to a jury's question should be modified or clarified must
make a contemporaneous request to that effect].)
Moreover,
the instruction did not imply that mere knowledge that conduct might incite
violence precludes a finding of self-defense.
The court instructed the jury that provocation with "intent to
create an excuse to use force" (CALCRIM No. 3472) would preclude a finding
of self-defense. This was a correct
statement of law. (People v. Hinshaw (1924) 194 Cal.1, 26; People v. Olguin (1995) 31 Cal.App.4th 1355, 1381.)
190.5
Meraz
contends that section 190.5 does not establish a presumption in favor of a LWOP
sentence for youthful special circumstance murderers. A change in the law has proven Meraz to be
correct. (Miller, supra, 567 U.S. __ [183 L.Ed.2d at p. 424.) The trial court did not expressly rely on an
LWOP presumption when it exercised its sentencing discretion, but we will
remand in an abundance of caution so that it may, if it so chooses, reconsider
its sentencing options in view of Miller.
Section
190.5, subdivision (b), provides that, when a 16- or 17-year-old is convicted
of a special circumstances murder, the sentence "shall be confinement in
the state prison for life without the possibility of parole or, at the discretion
of the court, 25 years to life." At
the time of sentencing, this language had been interpreted to provide "a
presumptive penalty of LWOP for a 16- or 17-year-old special circumstances
murderer," but to permit the court to grant leniency in its discretion,
based on any mitigating factors. (
at p. 1145 (Guinn).)
After
the trial court sentenced Meraz, the
United States Supreme Court decided in Miller
that the Eighth Amendment forbids
any sentencing scheme that mandates LWOP for juvenile offenders. (Miller,
supra, 567 U.S. __ [183 L.Ed.2d at p. 424.)
Section 190.5 does not mandate LWOP.
But after Miller it cannot be
read to presume that LWOP is the correct sentence for every youthful special
circumstance murderer. "[G]iven all
we have said . . . , this decision about children's
diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be
uncommon." (Ibid.)
name="_ftnref3" title="">[3]
The
trial court cited Guinn, supra, 28
Cal.App.4th at p. 1145, and acknowledged that "section 190.5 subdivision
(b) has been interpreted to express a presumptive sentence of life without the
possibility of parole for youthful
offenders convicted of first degree murder." The trial court then considered the factors
listed in section 190.3 and rules 4.421 and 4.423 of the California Rules of
Court "in determining whether the appropriate sentence is 25 [years] to
life or life without the possibility of parole."
There
are numerous factors the court may consider under section 190.3 in determining
whether to impose the death penalty or life without parole. The people point
out this includes, "[t]he circumstances of the crime of which the
defendant was convicted in the present proceeding . . ." (§ 190.3, subds.
(a)) and "the presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence."
(Id., subd. (b).) Age is also a factor. (Id.,
subd. (i).) The trial court found
numerous aggravating factors which could justify the trial court's sentence
under Miller.
The
trial court, however, rendered its sentencing decision against the backdrop of
the Guinn case which placed the
burden on Meraz to overcome the sentence of life without parole and receive a
lesser sentence. However aggravating the
circumstances are here, out of an abundance of caution we believe it to be the
better practice to remand the matter to the trial court so that it will have
the opportunity to reconsider its sentence in light of Miller. Indeed, the sentence
may be the same, or the trial court may feel less constrained now that
Court Security Fee
The
court's $120 security fee order as reflected on the abstract of judgment should
be modified to $40, reflecting a single offense, as respondent concedes. (§ 1465.8, subd. (a)(1).)
The
court should not impose and stay a $10,000 section 1202.45 restitution fine on
remand if Merraz' sentence does not include a period of parole, as respondent
concedes. (§ 1202.45.)
The
10-year gang enhancement imposed under section 186.22, subdivision (b)(1)(C)
may not be imposed on remand. A 15-year
minimum parole eligibility period should instead be imposed. (§ 186.22, subd. (b)(5).). The enhancement does not apply to crimes that
carry a life sentence. (
1007; People v. Johnson (2003) 109
Cal.App.4th 1230, 1239-1240.) The
15-year minimum parole eligibility period applies to life terms. (§ 186.22, subd. (b)(5).) Having concluded that the 10-year enhancement
under section 186.22, subdivision (b)(1)(C) was unauthorized, we do not reach
the question whether it should have been stayed pursuant to section 654.
DISPOSITION
The
sentence is vacated and the case is remanded for resentencing consistent with
the views expressed in Miller and in
this opinion. The judgment is otherwise
affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN,
J.
PERREN,
J.
>
Kevin G. Denoce, Judge
Superior Court County of Ventura
______________________________
Dan
Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Jorge Valasco is not a party
to this appeal.
