P. v. Nava
Filed 1/8/14 P.
v. Nava 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO MANUEL NAVA, JR., et al.,
Defendants and Appellants.
2d
Crim. No. B233532
(Super.
Ct. No. 1259550)
(
Ricardo
Manuel Nava, Jr., Ruben Nicholas Mize, Bryan Steven Medinilla, and Raul Junior
Diaz appeal the judgments entered against them following two jury trials. In the first trial, appellants were charged
with the murder of Lorenzo Carachure (Pen. Code,
Noe Carachure and Rogelio Hernandez (§§ 187, 664), and active
participation in a criminal street gang (§ 186.22, subd. (a)). Mize was separately charged with the
attempted murder of Prospero Sotelo.
were convicted of the substantive gang offense, and Mize was convicted of the
attempted murder of Sotelo. The jury was
unable to reach a verdict on the remaining counts, and the court declared a
of first degree murder (§ 187, subd. (a)), and Nava and Diaz were
convicted of second degree murder. The
jury also found true allegations that the murder was committed for the benefit
of a criminal street gang (§ 186.22, subd. (b)(1)), and that Mize and
Medinilla personally used a deadly weapon in committing the offense (§ 12022,
subd. (b)(1)). Appellants were found not
guilty of the attempted murders of Noe Carachure and Rogelio Hernandez. In a bifurcated proceeding, Nava admitted two
prior serious or violent felony strike convictions (§§ 667, subds. (a)(1),
(b) - (i), 1170.12, subds. (a) - (d)). The
trial court sentenced Medinilla to a
total term of 26 years to life in state prison, and Mize to a total term of 41
years to life. Nava and Diaz were each
sentenced to state prison terms of 15 years to life.
Appellants
contend (1) the court abused its discretion in refusing to bifurcate the gang
allegations; (2) the court erred in failing to give accomplice instructions for
witness Lucero Uribe; (3) the court erred in limiting appellants' arguments
regarding their ages and its effect on their ability to premeditate; (4) the
sentences imposed for the gang offense should have been stayed under section
654; and (5) cumulative error compels the reversal of their convictions.
court abused its discretion in denying their motion to sever Mize's trial. Diaz and Nava further
denying their motion for a mistrial, while Nava also challenges the sufficiency
of the evidence supporting his murder conviction. Medinilla separately challenges the court's
failure to modify the jury instructions on vicarious liability (CALCRIM No.
400). Mize additionally faults the court
for admitting evidence of two rap songs he wrote, and failing to instruct on
assault with a deadly weapon as a lesser offense of the charge of the attempted
murder of which he was convicted. We
shall order the three-year concurrent sentences imposed for the active gang
participation count stayed under section 654.
Otherwise, we affirm.
STATEMENT OF
FACTS
In July
2007, appellants were active members of Santa Barbara's Eastside
gang (Eastside). Eastside's primary criminal
gang activities are assaults with deadly weapons, murders and attempted
murders, and witness intimidation. As an
Eastside "shot-caller," Mize made decisions for the gang and directed
the activities of its members.
Eastside's
primary rival is the Westside gang (Westside). Predictably, Eastside claims the east side of Santa Barbara as
its territory, while Westside claims the west side. Eastside members, who refer to themselves as
"Eastsiders," designated the Pennywise store on Montecito Street as their primary "hangout." Westside members, or "Westsiders," usually
gathered at either the Guadalajara Market on San Pascual Street, or the nearby Westside Boys and Girls Club.
From
2006 through 2008, Eastsiders and Westsiders engaged in approximately 200 knife
fights. Shortly before the murder of
which appellants were convicted, Westsider Richard Garcia stabbed Mize's
brother, Eastsider Robert Martinez. Martinez
survived. Eastside then issued a
"green light" on Garcia, which meant he was to be killed in
retaliation for the attack.
Lucero
Uribe was Mize's girlfriend. On the
night of July
16, 2007, Uribe's brother Carlos Diaz drove
Uribe and her friend Carla Neri to the Pennywise store on Montecito Street. Carlos
through Uribe. Carlos waited in his
truck while Uribe and Neri went in the store.
Appellants were at the store with Emilio Mora, an Eastside shot-caller.
Carlos would give them a ride to the west side of town. Uribe conveyed the request to Carlos. Before Carlos had the opportunity to respond,
appellants got into the cab of his truck and Mora jumped in the truck bed. Mora looked through the window into the cab and
saw Mize, Nava, and Medinilla holding switchblade knives.
Carlos
drove appellants and Mora to San
Pascual Street. As Carlos was driving down San Pascual, he
saw Westsiders Lorenzo "Nemo" Carachure, his cousin Noe Carachure, and
Rogelio Hernandez walking on the right side of the street. Carlos continued driving and heard someone in
the truck say "Westside" or "Westsider."
Mora
told Carlos to slow down and stop. When
Carlos stopped the truck and turned off the engine and lights, appellants and
Mora jumped out and ran toward Lorenzo, Noe, and Hernandez. One of the Eastsiders yelled "Eastside Traviesos."
the Westsiders responded by throwing gang signs and yelling,
"Westside." Mize asked,
"What's up?"
The
Westsiders threw bottles at the Eastsiders, hitting Mora. Hernandez, who had been walking with a bicycle,
threw the bicycle at the Eastsiders and Mora picked it up. At that point, everyone ran toward the
Guadalajara Market. Witnesses saw
several men converge on Lorenzo, then heard the sound of glass breaking. Shortly thereafter, Lorenzo could be heard
pleading for his life. Diaz hit Lorenzo
in the head with a carjack, causing him to fall to the ground. Mize threw Hernandez's bicycle at Lorenzo. As Lorenzo lay pinned on his back under the
bicycle, Mize pulled out a knife and stabbed him twice in the neck and once in
the abdomen. Witnesses heard two or
three of the participants say "fuck him up." Medinilla stabbed Lorenzo in the chest or
stomach and Mora said, "[s]tick 'em."
Nava
chased Noe and Hernandez as they ran toward the market. Diaz joined Nava after hitting Lorenzo with
the carjack. Noe was stabbed and punched
in his rib cage and legs. He hit either
Nava or Diaz with a stick. Hernandez was
hit with a bottle and suffered a stab wound to his right arm.
Carlos saw
what was happening and started to drive away.
Mize yelled for him to stop.
Carlos stopped his truck and Mize, Medinilla, and Mora got in. Carlos drove to Mize's house, where all three
passengers got out. Uribe and Neri
arrived at Mize's house after Carlos left.
Witnesses
to the incident called 911. The police
arrived to find Lorenzo was lying on a driveway surrounded by several
people. Noe cradled Lorenzo's head and
spoke to him in Spanish. Lorenzo had a
large stab wound to his neck that was bleeding heavily. One of the responding officers applied a gauze
pad with pressure to the wound while waiting for the paramedics to arrive. Lorenzo was transported to the hospital,
where he died from his stab wounds.
At 10:30 p.m. that night, Mize knocked on Martinez's bedroom
window. Martinez went outside
and saw Mize, Medinilla, Uribe, and Neri.
Mize and Medinilla were both panicked and nervous and asked Martinez to help
them dispose of some knives. Medinilla
said, "I stabbed that motherfucker." Mize also admitted stabbing Lorenzo. Martinez drove Mize and Medinilla to Goleta Beach, dropped
them off at the entrance, and returned to pick them up a few minutes later. Martinez dropped Medinilla off at a Vons market in Montecito, then drove
home with Mize.
title="">[8]
Medinilla
was interviewed by the police on July 20, 2007. His right eye was bruised and red. He said he had been attacked by three men a
couple of days earlier. Medinilla
subsequently told Martinez he participated in the attack on Lorenzo in retaliation for the
stabbing of Martinez. Medinilla told Uribe he was
involved in the fight but was not specific. About a week after the murder, Medinilla
confided in his friend Denise Sandoval that he had stabbed a Westsider. Medinilla said he had kicked and stomped on
the victim before stabbing him in the neck with a stick.
The day
after the murder, Diaz saw Neri and told her not to say anything about what had
happened. Within a week of the crime,
Mora saw Diaz at the Pennywise store.
Diaz was holding a carjack and said, "I hit the guy with
this." A couple of weeks later,
Diaz saw Uribe at school and told her he had fought one of the Westsiders.
Three
days after the murder, Mize told fellow Eastsider Jose Herrera that he had
beaten up and stabbed a couple of Westsiders and had disposed of the evidence.
Marin that he "stuck" a Westsider named "Nemo." Mize seemed proud of his actions and said,
"Screw that Westsider." Mize
went on to state that he and other Eastsiders dressed in black and stabbed a
Westsider walking on San
Pascual Street. Mize also told Marin who was present during
the attack, although the individuals he named did not include appellants. Mize said he had stabbed the victim about 30
times. Around the same time, Mize told
his cousin, Eastsider Christopher Diaz,
Christopher he had stabbed Lorenzo in the stomach.
Within
a week of his conversation with Mize and Medinilla, Christopher agreed to wear
a wire to record any subsequent conversations.
On April
1, 2008, Christopher was wearing a wire
when he picked Mize up from a juvenile facility in Woodland Hills and drove him
back to Santa Barbara. As they were passing the
spot where Lorenzo was killed, Mize referred to the crime. Christopher asked Mize where he went for the
kill shot, and Mize replied "[i]n the throat." A redacted recording of the conversation was
played for the jury and admitted into evidence.
Nava
also confessed his role in the crime to several people. The day after the murder, Nava saw Herrera at
the Pennywise store and told him he had stabbed a Westsider who hit him with a
stick during a fight by the Guadalajara Market. About a week later, Nava told Neri he was
responsible for what had happened and had stabbed two Westsiders. About a month after the murder, Nava told
Uribe he had been in a fight and was the one who hit or hurt Lorenzo the
most. In September 2007, Nava showed
Marin a knife and said, "this is the exact knife that I killed Nemo
with." On Halloween 2007, Nava
bragged to Marin that he had stabbed Lorenzo and said, "I got this
Weaksider, Nemo." As a reward for
killing Lorenzo, Nava was jumped into the Traviesos clique. Nava fled to Mexico
after the murder and got a teardrop tattoo.
Santa
Barbara Police Detective Gary Siegel testified as the prosecution's gang
expert. When presented with a
hypothetical based on the case, Detective Siegel opined that Lorenzo's murder was
committed in association with and for the benefit of the Eastside gang. The crime benefitted and promoted Eastside by
creating fear within the community, thereby boosting the gang's notoriety and
reputation for violence. Based on his
training and experience, Detective Siegel also opined a gang member might get a
teardrop tattoo to represent he had killed or seriously assaulted someone.
On January 18, 2008, Westsider Prospero Sotelo was walking near the place Lorenzo was
killed when Mize and several other Eastsiders attacked Sotelo and repeatedly
stabbed him. During the April 2008
recorded conversation between Mize and Christopher, Mize admitted his role in
the crime and said, "that fool got stabbed sixteen [16] times[.]" When Mize was arrested on May 6, 2008, he said, "You guys got me on this one" and added,
"I'll never see my dad again. He's
an ex-con, so he can't visit me."
Appellants
did not testify in their defense. Medinilla
presented the testimony of a detective who interviewed Mora in connection with
Lorenzo's murder. Mora said during the interview that although Medinilla
participated in the attack, Medinilla was standing nearby when Lorenzo was
stabbed. According to the detective, it
was obvious from the outset of the interview that Mora was lying.
DISCUSSION
Denial of Motion to Bifurcate Gang Allegations
Appellants
contend the court erred in denying their motion to bifurcate the gang
allegations in the second trial. They
claim the gang evidence was admitted in violation of their due process rights
because most of the evidence was not cross-admissible as to the substantive crimes.
We
review the trial court's denial of appellants' motion to bifurcate the gang
allegations for abuse of discretion. (
1040,
1048 (Hernandez).) The moving party bears the burden of showing a
substantial danger of prejudice absent bifurcation. (Id. at
p. 1050.) No such showing was made here.
A gang
enhancement allegation is attached to the charged offense and usually inextricably
intertwined with it. Moreover, evidence of
a defendant's gang affiliation is often relevant and admissible to prove
identity, motive, modus operandi, specific intent and other issues. (Hernandez,
supra, 33 Cal.4th at p. 1049.) Any
inference of prejudice is dispelled, and bifurcation is unnecessary, when the
gang enhancement evidence is relevant to prove the charged offense. (Id. at
pp. 1049–1050; see People v. Lee (2011)
51 Cal.4th 620, 644.) Cross-admissibility
is not essential, however. As our
Supreme Court has explained: "Even
if some of the evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime itself—for example, if some of
it might be excluded under Evidence Code section 352 as unduly prejudicial when
no gang enhancement is charged—a court may still deny bifurcation. In the context of severing charged offenses,
we have explained that 'additional factors favor joinder. Trial of the counts together ordinarily avoids
the increased expenditure of funds and judicial resources which may result if
the charges were to be tried in two or more separate trials.' [Citation.]" (Hernandez,
supra, at p. 1050.) Bifurcation is
appropriate, by contrast, when the gang evidence is minimally probative and so
inflammatory it threatens to sway the jury to convict without regard to actual
guilt. (Id. at p. 1051; People v.
Albarran (2007) 149 Cal.App.4th 214, 227–228.)
In
denying the bifurcation motion, the court stated: "I think here the gang enhancement
allegations and the facts necessary to prove that are interwoven with the
underlying charges. And that therefore .
. . there's not any substantial prejudice to leaving the matters together. [¶] The
evidence is cross-admissible I think with regard to the elements of the gang enhancement.
And what I anticipate the evidence is
going to show with regard to the defendants' membership in a gang, and that membership,
promotion of that gang being a motivator in what happened or what allegedly
happened. The group going to the west
side, engaging in an altercation with three opposing gang members."
There
was no abuse of discretion. "Evidence
of the defendant’s gang affiliation—including evidence of the gang's territory,
membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent to guilt of
the charged crime. [Citations.]" (Hernandez,
supra, 33 Cal.4th at p. 1049.) Here,
the evidence of appellants' gang affiliation and activities was admissible and
highly relevant to show that appellants had a motive for attacking Lorenzo, and
that they acted with the specific intent necessary to prove murder.
Appellants
claim "the jury heard a repetitive cascade of superfluous and prejudicial
gang-related testimony about all of the defendants that existed solely in the
context of proving the gang enhancement."
We disagree. As we have explained,
the majority of gang evidence was relevant to prove the primary contested
issues relating to whether appellants were guilty of murder, not merely whether
they committed the crime for the benefit of their gang. To the extent some of the gang evidence was
"repetitive" and/or "superfluous," appellants did not move
to limit the amount of gang-related
evidence; rather, they sought to exclude all
of it. As for the evidence being "prejudicial,"
it was not rendered inadmissible simply because it "may have led the jury
to the ineluctable conclusion" that appellants were guilty of murder. (People
v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) The fact that the evidence is highly
incriminating simply increases its weight.
Moreover, any danger that the gang evidence might unfairly prejudice
appellants is dispelled by the overwhelming evidence of their guilt. Because appellants fail to demonstrate that
the court misapplied state law in denying their motion to bifurcate the gang
allegations, their federal due process claim also fails.
In
challenging the court's refusal to bifurcate the gang enhancement allegations,
Nava takes particular issue with Detective Siegel's expert gang testimony. Although Nava does not dispute the propriety
of the detective's answer to a hypothetical question that closely tracked the
evidence (People v. Vang (2011) 52
Cal.4th 1038, 1048), he asserts that "as to [Nava], its prejudicial effect
eclipsed its probative value under [Evidence Code] section 352." He claims this is so because "the
prosecution failed to marshal sufficient evidence to support a finding that
[Nava] aided and abetting [sic] the
stabbing of [Lorenzo]." He further
complains that "[t]he trial court's decision to deny bifurcation of the
gang enhancement also opened the door for the prosecution to pile on evidence
about [Nava's] criminal record and other bad acts to support the fact that he
was a gang member." Nava did not
object to Detective Siegel's testimony on these grounds, so his claim is
forfeited. In any event, as we shall
later explain, there is no merit in Nava's claim that the evidence is insufficient
to support his conviction of second degree murder under an aiding and abetting
theory. (See infra, pp. 22-24.) Moreover,
any error in admitting the challenged evidence was rendered harmless by other
evidence, such as Nava's admissions to four different people that he
participated in the killing. In light of
these admissions, it is not reasonably probable that Nava would have achieved a
more favorable result had the challenged evidence been excluded, be it through
bifurcation or an evidentiary ruling. (
836 (Watson); People v. Gonzales (2011) 51 Cal.4th 894, 924 [exercise of
discretion under Evidence Code section 352 subject to Watson harmless error standard of review].)
Accomplice Instructions for Witness Uribe
CALCRIM
No. 335 instructed the jury that Mora, Martinez, and
Carlos were accomplices as a matter of law and that their testimony thus had to
be viewed with caution and corroborated by other evidence. The jury was not so instructed as to Uribe, nor
was it instructed that her testimony had to be corroborated if she was found to
be an accomplice (CALCRIM No. 334).
Appellants claim this amounts to reversible error.
Section
1111 states: "A conviction can not
be had upon the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the commission of
the offense . . . ." An accomplice
is "one who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the testimony of the
accomplice is given." (
The definition of accomplice "encompasses all principals to the
crime [citation], including aiders and abettors and coconspirators. [Citation.]" (People
v. Stankewitz (1990) 51 Cal.3d 72, 90 (Stankewitz).)
"It
is well settled that the phrase 'liable to prosecution' in section 1111 means,
in effect, properly liable. Any issues of fact determinative of the
witness's factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed
may the court determine that the witness is or is not an accomplice as a matter
of law. [Citations.]" (People
v. Rodriguez (1986) 42 Cal.3d 730, 759.)
"When
a jury receives substantial evidence that a witness who has implicated the
defendant was an accomplice, a trial court on its own motion must instruct it
on the principles regarding accomplice testimony. [Citation.]
This includes instructing the jury that an accomplice's testimony
implicating the defendant must be viewed with caution and corroborated by other
evidence. [Citations.]" (People
v. Houston (2012)
54 Cal.4th 1186, 1223.) The defendant
has the burden of proving that a witness is an accomplice by a preponderance of
the evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 968 (Tewksbury).) A person's mere
knowledge that a crime might be committed by another in the future or failure
to prevent it does not make that person an accomplice. (See People
v. Horton (1995) 11 Cal.4th 1068, 1116; Stankewitz,
supra, 51 Cal.3d at pp. 90–91.)
"Providing assistance without sharing the perpetrator's purpose and
intent is insufficient to establish that a person is an accomplice. [Citation.]" (People
v. Carrington (2009) 47 Cal.4th 145, 191.)
The
court did not err in failing to instruct the jury that Uribe was an accomplice
as a matter of law. The answer to the question
whether the court should have instructed the jury to determine whether Uribe
was an accomplice, however, is less clear.
On the one hand, it can be said Uribe merely asked her brother to give
her then-boyfriend and his friends a ride to the west side. On the other hand, although Uribe ostensibly
asked, she effectively made the decision by falsely telling Mize that Carlos
had agreed to the request. The People
correctly note that Uribe was not an Eastsider, yet it is reasonable to infer
that she knew her boyfriend and his friends were members of the gang. Uribe also knowingly aided Mize and his
fellow Eastsiders in obtaining a nighttime ride to the west side of town, which was rival gang territory. Moreover, Uribe was offered immunity for her
testimony. While the People correctly
note that this fact is insufficient by itself to compel a finding that Uribe
was an accomplice (see Tewksbury
inference.
Ultimately,
it does not matter whether the court should have given accomplice instructions
as to Uribe because her testimony was corroborated by other evidence. (People
v. Lewis (2001) 26 Cal.4th 334, 370.)
"Corroborating evidence may be slight, entirely circumstantial, and
entitled to little consideration when standing alone. [Citations.]
It need not be sufficient to establish every element of the charged
offense or to establish the precise facts to which the accomplice
testified. [Citations.] It is 'sufficient if it tends to connect the
defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.'
[Citation.]" (
Here,
there is independent corroborating evidence that tends to connect appellants to
the commission of the crimes. All four
appellants confessed to their involvement.
Moreover, the jury was instructed to assess the credibility of all
witnesses by considering their bias and other factors that might lead them to
be less than truthful. (CALCRIM No.
105.) Even in the absence of
corroboration, we must affirm if it is reasonably probable that the error did
not contribute to the verdicts. (
254, 304.) Any error in failing to
instruct on accomplice liability as to Uribe was harmless.
Limitation of Arguments on Age
Appellants
contend the court violated their Sixth Amendment right to assistance of counsel
by limiting counsel's reference to appellants' ages and precluding them from
arguing as a matter of common knowledge that people of appellants' ages act
rashly and impulsively. We disagree.
The
trial court has discretion to control the proceedings during the trial,
including the argument to the jury.
(§ 1044; People v.
Absent a showing of an abuse of discretion, we must uphold the trial
court's actions in this regard. (
1327, 1334.) Even if the court has
abused its discretion under section 1044, the defendant is not entitled to
reversal unless he can show a reasonable probability he would have obtained a
more favorable result had the error not occurred. (People
v. Garcia (1986) 183 Cal.App.3d 335, 347 (Garcia); Watson, supra,
46 Cal.2d at p. 836.)
Prior
to closing arguments, Mize's attorney asked that he be allowed to argue as "a
general principle of human development that teenagers, especially around the
age these defendants were, . . . tend to be more impulsive." Over the prosecutor's objection, the court allowed
counsel to argue that appellants' ages were relevant to the extent they could
be tied to the facts of the case.
Counsel was prohibited, however, from arguing as a matter of common
knowledge that individuals of a certain age are impulsive or rash. The court reasoned: "The argument of counsel is always
restricted ultimately by the facts brought out during trial. . . . [¶] The
age of the defendants may have some relevance as it applies to the facts of the
case. . . . [Defense counsel] may not argue or suggest what everyone may
know. In fact, we don't know what
everyone knows or what their common experiences are . . . . [¶] . . . The best
way to avoid crossing the line is not to get too close to it. So by way of example, he is young, therefore
he is impulsive, compulsive, or assigning some other trait to one or more of
the defendants simply because of age crosses the line. The defendant acted impulsively because, and
then referring to the specific facts of the case would seem to me to be
appropriate argument."
Mize's
counsel responded that he had asked the investigating officer Mize's age and
the time of the offenses and offered, "I would be satisfied if the Court
took judicial notice of the birth dates of the defendants that are stated in
the information filed by the People.
That's all I want." Over the
prosecutor's objection, the court then indicated it would take judicial notice
of appellants' birth dates.
At the
beginning of his closing argument, Mize's attorney informed the jury of
appellants' ages. Counsel went on to
argue that the decision to kill Lorenzo was "momentary" and was made
"rashly, impulsively and without careful consideration." Medinilla's attorney argued that his client
"was a 15 year old kid who was out there, probably over his head, being
led around by 19 year old Emilio Mora and others." In concluding, counsel argued that Medinilla
"certainly didn't know . . . what the stabber was going to do, if you find
that to be Mr. Mize, he had no idea, and it was not foreseeable in his
15-year-old mind." Nava and Diaz
offered no argument on the issue.
Appellants
did not object to the ruling they now challenge. Indeed, Mize's attorney made clear that he
merely wanted the court to take judicial notice of appellants' birth dates, and
the court did so. Appellants' claim that
the court improperly restricted their arguments is thus forfeited. In any event, the court's ruling did not preclude
counsel from urging jurors to apply their own experiences in deciding whether
the evidence—which included appellants' ages—established they had the required
mental state to commit murder. Rather,
the court merely precluded counsel from arguing it is "common
knowledge" that individuals of a certain age generally act rashly and impulsively,
such that they are incapable of premeditating.
In so ruling, the court correctly found that the proffered proposition
is not a matter of common knowledge
or experience.
In
arguing to the contrary, Medinilla relies on Roper v. Simmons (2005) 543 U.S. 551,
in which the Supreme Court held that capital punishment for defendants who were
under the age of 18 when they committed their crimes constitutes cruel and
unusual punishment. Medinilla quotes the
case as follows: "First, as any
parent knows and as the scientific and sociological studies respondent and his
maturity and an underdeveloped sense of responsibility are found in youth more
often than in adults and are more understandable among the young. These qualities often result in impetuous and
ill-considered actions and decisions.'"
(Id. at p. 569.) This passage, however, demonstrates the
wisdom of the court's ruling in this case.
As the court noted, "we don't know what everyone knows or what
their common experiences are or whether or not they were parents or, if they
were, how their children got through adolescence." It is one thing to state that parents might
know and studies might tend to indicate that young people are more likely than
adults to demonstrate immaturity and lack of responsibility. It is quite another to state as a matter of
common knowledge that young people of appellants' ages act rashly and
impulsively merely by virtue of their ages.
Nothing in the court's ruling precluded appellants from offering evidence—be
it in the form of expert testimony, accepted studies, or facts relating to
appellants' own life experiences—indicating that appellants' youth interfered
with their ability to form the intent to commit murder. Moreover, nothing precluded jurors from
relying on their own life experiences in making that determination.
Even if
we were to assume the court abused its discretion, the error would be harmless.
Medinilla's attorney was able to argue
that Medinilla "was a 15 year old kid" who acted under the influence
of others who were significantly older.
He also offered that the killing "was not foreseeable in his
15-year-old mind." Moreover, the jury
did not have to find that Mize and Medinilla acted with mature and meaningful
reflection in order to find them guilty of first degree murder. (§ 189; People v. Smithey (1999) 20 Cal.4th 936, 979.) Finally, the evidence of appellants' guilt
was overwhelming. Because it is not
reasonably probable appellants would have achieved a more favorable result
absent the alleged error, their claim fails for lack of prejudice. (Garcia,
supra,183 Cal.App.3d at p. 347; Watson,
supra, 46 Cal.2d at p. 836.)
Section 654
In
sentencing appellants, the court imposed concurrent three-year terms for the
substantive gang offense (§ 186.22, subd. (a)). Appellants assert that these sentences must
be either stayed under section 654 or vacated as a double jeopardy
violation. The People correctly concede
that the sentences must be stayed because appellants were separately punished
for the crimes upon which the gang offenses were based. (People
v. Mesa (2012) 54 Cal.4th 191,
199.) We shall order the judgments
modified accordingly.
Denial of Motion to Sever Mize's Trial
Nava,
Medinilla, and Diaz contend the court abused its discretion in denying their
motion to sever Mize's trial.
name="_ftnref12" title="">[12] They claim that a joint trial resulted in
gross unfairness to them and violated their state and federal due process
rights to a fair trial.
"Section
1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: '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[s]
separate trials.' [Citations.] Joint trials are favored because they 'promote
economy and efficiency' and '"serve the interests of justice by avoiding
the scandal and inequity of inconsistent verdicts."' [Citation.]
When defendants are charged with having committed 'common crimes
involving common events and victims,' as here, the court is presented with a 'classic
case' for a joint trial. [Citation.]" (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)
We
review the denial of a severance motion for abuse of discretion, based on the
facts as they appeared at the time of the ruling. (Coffman,
supra, 34 Cal.4th at p. 41.)
name="_ftnref13" title="">[13] "[S]everance may be appropriate '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.'" (
when 'there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.'
[Citations.]" (
such as limiting instructions, often will suffice to cure any risk of
prejudice. [Citation.]" (Id.
at p. 40.) Even if the court's ruling
amounts to an abuse of discretion, reversal is mandated only if the moving
party demonstrates a reasonable probability he would have achieved a more
favorable result if he had been tried separately. (Id.
at p. 41.)
In
denying the severance motion in the second trial, the court reasoned: "[I]t is the Court's impression that,
number one, the spillover effect or so-called spillover effect [in the first
trial] was minimal and in fact well contained by the limiting instructions
given throughout the trial, as well as in the jury instructions themselves. . .
. [¶] . . . So again, many of those
issues came up the first time around and I think we were able to make things
work. . . . [¶] . . . The long and the
short of it is that the motion is denied with regard to severing. . . . [T]he
California Constitution provides for joint trials. The exception is not having a joint trial. The exception is not that in every gang case there
should be joint trials simply because there are interlocking facts, allegations
and theories that in fact one assumes is the reason behind the [c]onstitutional
preference for joint trials."
The
court's ruling was not an abuse of discretion.
"Because defendants were charged with having committed 'common
crimes involving common events and victims' [citation], this was a 'classic
case' for a joint trial." (
168; Coffman, supra, 34 Cal.4th at p.
40.) The facts known to the court at the
time of its ruling demonstrated that none of the defendants would be unfairly
prejudiced by a joint trial. As the
court noted, it had successfully dealt with issues regarding evidence that was
only admissible against Mize during the first trial. The majority of the evidence offered against
Mize was also admissible against Nava, Medinilla, and Diaz. When evidence only admissible against Mize was
elicited, the jury was admonished to that effect. Instructions that embodied the prior
admonitions were also given at the conclusion of the trial.
these instructions.
name="_ftnref15" title="">[15] (People
v. Homick (2012) 55 Cal.4th 816, 879 (Homick).) Moreover, a significant portion of the
evidence that was not cross-admissible consisted of Nava, Medinilla, and Diaz's
self-incriminating statements. Even if
accepted Diaz's assertion that a separate trial of Nava, Medinilla and Diaz
would have been "relatively short," a joint trial was undeniably more
efficient. There is no indication that
appellants presented antagonistic defenses such that they would be prejudiced
by a joint trial. (See
present here.
title="">[16]
In any
event, any error in denying severance was harmless. The evidence against Nava, Medinilla, and Diaz—which
included their own admissions—was substantial.
Although Nava correctly notes that the jury in the first trial was
unable to reach a verdict on the murder count, the record reflects that the
jury was merely unable to agree whether appellants acted with premeditation and
deliberation, and not whether they were guilty of murder.
Nava, Medinilla, and Diaz would have achieved a more favorable result had they
been tried separately from Mize, the denial of their severance motion provides
no basis for reversal of their convictions.
(Coffman, supra, 34 Cal.4th at
p. 41.)
Motion for Mistrial
Nava
and Diaz contend the court committed reversible error in denying their motion
for a mistrial after a witness recounted Mize making statements that
potentially incriminated them. They
claim that this testimony, which the court immediately struck and admonished
the jury not to consider, violated their confrontation rights under
and its progeny.
We
review the court's denial of a mistrial motion for an abuse of discretion. (People
v. Price (1991) 1 Cal.4th 324, 428.)
A motion for mistrial is properly denied unless the error precipitating
it cannot be cured by limiting instructions or some other method. "'Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial motions.'" (People
v. Cooper (1991) 53 Cal.3d 771, 838-839.)
Nava
and Diaz moved for a mistrial based on statements that Neri and Christopher
attributed to Mize. Neri testified that
on the night of the crime, she heard Mize say that "[h]e thought they
killed someone." Mize objected, and
a bench conference followed. The court
then instructed the jury that "[w]ith regard to the last answer, . . . the
Court will order that answer be stricken.
The jury is admonished not to consider it for any purpose." When the prosecutor rephrased the question
that prompted the stricken answer, Neri testified that Mize said "[t]hat
he thought he killed . . . that they had killed somebody." The court immediately struck the answer and
reiterated its prior admonishment that the jury was not to consider the evidence
for any purpose.
Later
that same day, the prosecution called Christopher to testify. Shortly before playing Christopher and Mize's
recorded conversation, the prosecutor asked, "As you're driving by 700 San
Pascual, what, if anything, does Mr. Mize say regarding the facts and
circumstances of this case?"
Christopher then quoted Mize as stating, "That's where we got that
fool Nemo." Christopher proceeded
to testify that he asked Mize "where he went for the kill shot," and
that Mize replied, "The neck."
Shortly thereafter, Diaz asked for a bench conference and moved for a
mistrial on the ground that Christopher had referred to "we." Diaz also complained that Christopher had
mentioned a carjack even though he had been admonished not to do so. Nava joined in the motion.
After
hearing argument, the court ruled as follows:
"With regard to the we's and they's, we've had discussions about that.
The district attorney, it sounds like,
has been making an effort to avoid those problems. He has no better control over his witnesses
than any other attorney does. It's
problematic. I don't think that this
rises to the level of prejudice that would warrant a mistrial. [¶] My
inclination is to go along with [Diaz's] suggestion, that is, . . . move to
strike it as nonresponsive and hope that the jury doesn't give more credence to
the fact that we got up and came into chambers . . . discussing the issue, and
trying to decide if that means that this was important or not. And if so, how and why it was important may
cause more speculation on their part than the testimony itself. But to say that it was nonresponsive and strike
it and tell them not to consider it and move on from there." Following a recess, the court instructed the
jury that "the last answer from the witness was really nonresponsive to
the question, so we’re going to strike that answer, admonish the jury not to
consider it for any reason."
There
was no abuse of discretion. Nava's claim
that Mize's hearsay statements violated his rights under the confrontation clause
fails because the statements were excluded and the jury was admonished not to
consider them for any purpose. Any
reliance on the statement that Neri attributed to Mize is misplaced because no
one moved for a mistrial based on that statement. Appellants have thus forfeited any claim that
Neri's remarks warranted a mistrial.
(See People v. Lightsey (2012)
54 Cal.4th 668, 719 [defendant who did not object or move for mistrial based on
claim of prosecutorial misconduct "forfeited this aspect of his
claim"].)
Moreover,
appellants fail to establish that the error occasioned by the improper remarks
was incurable. In addition to striking
the remarks, the court promptly admonished the jury not to consider them for
any purpose. Similar admonishments were
given in the court's written instructions.
Once again, we presume that every juror was capable of understanding and
following these clear and straightforward instructions. (Homick,
supra, 55 Cal.4th at p. 879.)
Appellants offer nothing indicating otherwise. As the People note, appellants were in any
event not directly incriminated by the references to "we" and
"they." Other evidence
demonstrates that Mize subsequently identified his accomplices by name and that
appellants were not mentioned. Given the
brief and vague references at issue, Mize's exculpation
of appellants, the court's curative instructions and admonishments, and
overwhelming evidence of guilt that includes their own admissions, the denial
of Nava and Diaz's mistrial motion was not an abuse of discretion.
Sufficiency of the Evidence – Nava's Conviction
Nava
claims the evidence is insufficient to support his second degree murder
conviction. He argues there is no
evidence from which the jury could have found he acted as a direct perpetrator
or an aider and abettor, or that he was guilty under a natural and probable
consequences theory.
In
reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in prosecutions
primarily resting upon circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792.) "'An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise.'" (
weight of the evidence or the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
The
evidence is sufficient to support Nava's conviction of second degree
murder. In arguing to the contrary, Nava
essentially ignores the applicable standard of review, which requires us to
view the evidence in the light most favorable to the judgment. As we have noted, the record belies Nava's
assertion that the jury "specifically rejected the allegation that [he]
used a knife and found it not true."
No such allegation was ever made.
In any event, such a finding would provide no basis for us to conclude
the evidence is insufficient to sustain a finding that he directly perpetrated
the crime. (See People v. Miranda (2011) 192 Cal.App.4th 398, 405 ["under the
inconsistent verdict doctrine, the 'not true' finding on the personal use
enhancements does not inexorably lead to a finding that defendant was not the
direct perpetrator of the substantive offenses"].) Nava admitted to several people that he
stabbed Lorenzo during the altercation.
Moreover, after the murder Nava got an "Eastside" tattoo on his
face and a teardrop tattoo below his eye.
When asked about the tattoo, Nava said he had gotten it after stabbing
Lorenzo. Detective Siegel also offered
expert testimony that a teardrop tattoo can represent a murder or serious
assault. This evidence is sufficient to
support a finding that Nava was guilty as a direct perpetrator.
The
evidence is also sufficient to support Nava's conviction of murder as an aider
and abettor. Aider and abettor liability
is established when a person who does not directly commit a crime assists the
direct perpetrators by aid or encouragement, with knowledge of the
perpetrators' criminal intent and with the intent to help them carry out the
offense. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.) "'[A]mong the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.'" (People
v. Campbell (1994) 25 Cal.App.4th 402, 409.) Here, this showing is met by evidence that Nava
armed himself with a knife immediately prior to the murder and chased and
stabbed Noe and Hernandez, thereby preventing them from helping Lorenzo defend
against the attack.
Finally,
the evidence is sufficient to support Nava's conviction on the theory that the
crime was a natural and probable consequence of an assault in which he directly
participated. At the very least, Nava
knowingly and deliberately participated in a gang assault. In light of the evidence, the jury could have
reasonably found that a person in Nava's position would or should have known
that the incident would escalate and ultimately result in a killing. (See People
v. Medina (2009) 46 Cal.4th 913,
922-923.)
CALCRIM No. 400
Medinilla
contends the court erred in failing to modify CALCRIM No. 400 by excluding language
that an aider and abettor is "equally guilty" of a crime whether he
directly perpetrated it or aided and abetted the perpetrator. (Nero,
supra, 181 Cal.App.4th at pp. 517-518.)
Medinilla did not request modification or clarification of the
instruction in the trial court, so his claim is forfeited. (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1163–1165 (Samaniego).) Medinilla
alternatively claims that his trial attorney provided ineffective assistance by
failing to request modification. This
claim fails because in light of the instructions as a whole and the
circumstances of the case, there is no reasonable likelihood that the
instruction misled the jury.
In
evaluating a claim of instructional error, we examine the instructions to
determine "whether there is a 'reasonable likelihood' that the jury
understood the charge as the defendant asserts." (People
v. Kelly (1992) 1 Cal.4th 495, 525.) In addressing this question, we "consider
the specific language under challenge and, if necessary, the charge in its
entirety." (Id. at pp. 525-526.) We must
"determine whether the instruction, so understood, states the applicable
law correctly." (
487.) An instruction can only be found
to be ambiguous or misleading if, in the context of the entire charge, there is
a reasonable likelihood that the jury misconstrued or misapplied its words. (People
v. Harrison (2005) 35 Cal.4th
208, 251–252.)
The jury
was instructed pursuant to CALCRIM No. 400 that a person may be guilty of a
crime if he directly committed the crime or if he aided and abetted someone
else who committed the crime, and that a "person is equally guilty of the crime
whether he or she committed it personally or aided and abetted the perpetrator
who committed it." The jury was
also instructed pursuant to CALCRIM No. 401 that an individual cannot be guilty
of aiding and abetting unless the direct perpetrator committed the crime and the
aider and abettor (1) knew of the direct perpetrator's intent; (2) shared the
same intent as the direct perpetrator; and (3) did in fact aid and abet the
perpetrator's commission of the crime.
Other instructions explained the degrees of murder and provided the
requirements for first degree murder.
(CALCRIM No. 521.) Those instructions
made clear that in order to convict any defendant of first degree murder, the
jury had to find he specifically intended to commit the crime and did so with
premeditation and deliberation.
In
the court found that the "equally
guilty" language misled the jury in that case to believe the
defendant could not be found guilty of a lesser offense than the second degree
murder she aided and abetted.
name="_ftnref19" title="">[19] Here, the jury asked if it could find an
aider and abettor guilty of a lesser offense under a natural and probable
consequence theory, and the court answered that question in the
affirmative. To the extent this exchange
did not address the question whether a defendant who specifically intended to
aid and abet murder could be found guilty of a lesser offense, the instructions
made clear that a first degree murder conviction requires premeditation and
deliberation. (See People v. Prettyman (1996) 14 Cal.4th 248, 259 [an aider and
abettor of a specific intent crime must share the perpetrator's specific intent].) Based on the instructions as a whole, no
reasonable juror would have concluded that a defendant who did not intend to
aid and abet a premeditated and deliberate murder was nevertheless guilty of
first degree murder. (See
1119–1120 [any error in CALCRIM No. 400's "equally guilty" language
harmless where jury was also instructed with CALCRIM No. 401]; see also
1166 ["It would be virtually impossible for a person to know of another's
intent to murder and decide to aid in accomplishing the crime without at least
a brief period of deliberation and premeditation, which is all that is
required"].) Any error arising from
the "equally guilty" language was also harmless in light of the
evidence demonstrating that Medinilla was found guilty not merely as an aider
and abettor, but also as a direct perpetrator.
(See People v. Guiton (1993) 4
Cal.4th 1116, 1129.)
Rap Songs
Mize
asserts the court abused its discretion in admitting two of his rap songs at
both trials. He characterizes the songs
as improper character evidence and claims the evidence was irrelevant to
establish his state of mind when he committed the murder of Lorenzo and the attempted
murder of Sotelo. He also argues that to
the extent the evidence was relevant, it should have been excluded under
Evidence Code section 352 as substantially more prejudicial that probative.
Gang
evidence that is logically relevant to some material issue other than character
evidence is admissible if it is not cumulative or more prejudicial than
probative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) The evidence should be excluded if it is only
relevant to show a defendant's criminal disposition or bad character. (People
v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Where there is a gang allegation, gang
evidence will usually be admissible. (
925, 930.) Moreover, gang evidence is
admissible when it is relevant to prove motive or intent. (People
v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
Because motive is usually the incentive for criminal behavior, the
probative value of motive evidence generally outweighs its prejudicial
effect. Courts are thus granted wide
latitude in admitting such evidence. (
Cal.App.4th at p. 1550.)
Rap
lyrics containing gang references have been held admissible in cases involving
gang allegations. (People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin); People v. Zepeda
(2008) 167 Cal.App.4th 25, 34–35.) In
appellant's claim that the lyrics were inadmissible character evidence and
concluded the songs were relevant and admissible to show "his membership
in [the gang], his loyalty to it, his familiarity with gang culture, and,
inferentially, his motive and intent on the day of the killing." (At p. 1373.)
In
2007, Mize posted 10 "gangsta rap" songs on Youtube. Prior to the first trial, the prosecutor
moved to admit three of the songs and Mize opposed the motion. The court ruled that the prosecution could
play two of the songs: "Homicidal
Thoughts," which was written and performed by Mize and Martinez, and
"Untitled," which was written and performed by Mize. The third song, entitled "This Is Why He's
Dead," was excluded because it was about an unrelated crime that occurred
subsequent to the crimes with which Mize was charged. The court also indicated it would admonish
the jury that it was not to consider the songs as evidence against the other
defendants. The court issued an
identical ruling, over Mize's objection, prior to the first trial. The jury was once again admonished that the
evidence was only admissible against Mize.
In
"Homicidal Thoughts," Mize identifies himself as "Chiko"
and says, "Still I wanna gang bang till I fuckin drop [¶] Taking out the streets and get
popped by the fucking cops, that's why I chose to rap so I could change my
ways. I don't want to be like my brother
and get locked away, . . . if he asked me to pull the trigger I would pull
it. My enemies are my target, those
leva's will catch my bullet.
[¶] . . . Homicidal thoughts running through my fucking head
and they won't stop till I reach my fucking death." In the next verse, Martinez, or
"Lil Bullet," refers to "putting in work for that Eastside
Krazies gang" and adds, "In these streets there is no choice but to
gang bang."
In
"Untitled," the song begins: "It's
Chiko Loko putt[i]ng it down from the TRS [Traviesos] if you have something to
say about that go ahead and try to test, I'll put your ass to rest. East Bruta [East Santa Barbara] is the best, fuck with me and your body will be in a blo[o]dy
mess. . . . I haven't killed but I have the heart to do a one eighty seven
homicide. I can't wait till the day that
I take somebody's life. Homie don't get
it twisted my trigger finger's not the person that I love, the kick of the
Glock, the smell of the barrel burning. . . . [Y]ou know my barrio is
considered my family[] so you fuck with one of them you're fucking with
me." Mize continues: "Disrespect East Bruta fool and you are
bound to get hit. My Cuete [gun] is in my
clutch, in my times I never miss . . . .
[¶] . . . I'm just gonna cause some chaos till I'm put in some
fuckin cuffs, I'm a go out like a G and feed the cops some snuff. [¶] Fucking with me barrio please
don't make me have to bust, disrespect me bitch I'll make sure your grave is
dug. . . . I don't play any games and I bring that pain no matter what happens
in my life, I'll still bang for the TRS gang."
These
lyrics, in which Mize declares his readiness and willingness to kill anyone who
"fucks" with him or his gang, were relevant to show intent and motive
for the charged crimes. (See, e.g.,
1013-1016 [defendant's threat to "waste any mother fucker that screws with
me" properly admitted to show intent].)
As the People note, Mize's intent was a central issue in the case. Moreover, the lyrics are relevant to prove
Mize's intent regardless of when he wrote them.
(Olguin, supra, 31 Cal.App.4th
at p. 1373.) Because the evidence is
relevant to prove intent, its admission did not violate the statutory
restriction on propensity or character evidence under Evidence Code section
1101, subdivision (a). (
1044, 1119.) Mize's attempts to
distinguish or discredit the relevant authority are unavailing.
The
court also properly exercised its discretion in excluding the evidence under
| Description | Ricardo Manuel Nava, Jr., Ruben Nicholas Mize, Bryan Steven Medinilla, and Raul Junior Diaz appeal the judgments entered against them following two jury trials. In the first trial, appellants were charged with the murder of Lorenzo Carachure (Pen. Code,[1] § 187, subd. (a)), the attempted murders of Noe Carachure and Rogelio Hernandez (§§ 187, 664), and active participation in a criminal street gang (§ 186.22, subd. (a)). Mize was separately charged with the attempted murder of Prospero Sotelo.[2] Appellants were convicted of the substantive gang offense, and Mize was convicted of the attempted murder of Sotelo. The jury was unable to reach a verdict on the remaining counts, and the court declared a mistrial as to those charges. On retrial, Mize and Medinilla were found guilty of first degree murder (§ 187, subd. (a)), and Nava and Diaz were convicted of second degree murder. The jury also found true allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Mize and Medinilla personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)). Appellants were found not guilty of the attempted murders of Noe Carachure and Rogelio Hernandez. In a bifurcated proceeding, Nava admitted two prior serious or violent felony strike convictions (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)). The trial court sentenced Medinilla to a total term of 26 years to life in state prison, and Mize to a total term of 41 years to life. Nava and Diaz were each sentenced to state prison terms of 15 years to life.[3] |
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