P. v. Palacios
Filed 3/21/13 P. v. Palacios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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opinion has not been certified for publication or ordered published for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.
MELVIN PALACIOS et al.,
Defendants and
Appellants.
2d Crim. No.
B235222
(Super. Ct.
No. BA377687)
(Los
Angeles County)
Melvin Palacios, Rene
Molina and Jessie Morales, (referred to by their surnames and collectively,
Defendants), appeal their convictions for attempted
murder and the resulting prison sentences of 32 years to life. We affirm.
FACTS
AND PROCEDURAL HISTORY
I.
The Crime
Defendants belonged to the
Mara Salvatrucha (MS 13) street gang. In
2007, Palacios had confronted Luis Vasquez (Vasquez) about what gang he
belonged to, and Vasquez denied any gang affiliation. In 2008, Molina did the same to Vasquez. Soon thereafter, Palacios, Molina and others
chased Vasquez into an ambush and beat him.
In early December 2009, Morales threatened Vasquez.
About a week after
Morales's threat, Palacios approached Vasquez and two others as they stood in
front of an apartment building in South Los Angeles. Palacios wanted to "hit them up"
for tagging the alley behind the building with a rival gang's graffiti. One of Vasquez's companions belonged to that
rival gang.
Seeing Palacios approach
with a gun tucked into his waistband, Vasquez turned and ran into the building. Palacios gave chase. Vasquez ran through the building and into the
alleyway behind it. Molina and Morales
were standing next to each other in the alleyway, just to the left of the
apartment's back door. Morales had a gun
tucked into his waistband. As Vasquez
took off running away from Molina and Morales, Palacios walked over to
them. Standing beside Molina and
Morales, Palacios then shot at Vasquez three times, hitting him once in the
back.
II.
The Prosecution
Defendants were charged
with attempted murder, in violation of Penal Code sections 664/187, subdivision
(a).
in violation of section 186.22, subdivision (b)(1)(C), as well as three
different firearm enhancements. As to
each defendant, the jury returned guilty verdicts and found true the gang
enhancement and the enhancement for intentional
discharge of a firearm causing great bodily injury, in violation of section
12022.53, subdivisions (d) and (e)(1).
The trial court sentenced each defendant to seven years to life on the
attempted murder charge, and a consecutive twenty-five years to life on the
firearm enhancement.
name="_ftnref2" title="">[2]
DISCUSSION
I.
Admission of Palacios's Statement
to Police
Police officers interviewed
Palacios the day after the shooting.
They read him his Miranda
rights, which Palacios said he understood.
(Miranda v. Arizona (1966) 384
U.S. 436 (Miranda).) When the officers asked Palacios if he wanted
to tell his side of the story, Palacios responded, "I don't
know." In response, the officers
explained that they were giving Palacios a chance to give his account of what
happened. They further stated that it
was up to him to decide if he would take that opportunity for the sake of his
love for his children and his mother.
Palacios then admitted
to being present when Vasquez was shot, but denied any involvement in the
shooting. Palacios said he was going to
"hit up" the people he believed to be responsible for placing rival gang
graffiti in the alleyway. At first,
Palacios said he was alone, but later stated he was with Blanco. Palacios never identified who Blanco
was. Palacios said he and Blanco heard
shots and ran away.
A. Miranda
violation
Palacios argues that the
trial court erred in admitting his statement because it was obtained in
violation of Miranda. Palacios contends that (1) he did not waive
his Miranda rights when he said he
was unsure whether he wanted to talk; and (2) any subsequent waiver was
involuntary due to the officers' promises of leniency. We independently review the validity of a
v. Marshall (1990) 50 Cal.3d 907, 925.)
A suspect may waive his
right to remain silent under Miranda
by the act of speaking to the police if (1) he understands the
(2) he does not invoke his Miranda
rights; and (3) his statement is not coerced.
(Berghuis v. Thompkins (2010)
560 U.S. __, __ [130 S. Ct. 2250, 2264; 176 L.Ed.2d 1098, 1115].) Palacios understood the Miranda advisements.
Palacios also did not invoke his right to remain silent under
An invocation must be "unambiguous." [130 S. Ct. at pp. 2259-2260; 176 L.Ed.2d at
pp. 1110-1111].) Palacios's statement
that he did not know whether he wanted to talk was ambiguous.
We also conclude that
Palacios's waiver was not coerced.
Promises of leniency can render a Miranda
waiver and subsequent statement involuntary.
(In re Shawn D. (1993) 20
Cal.App.4th 200, 216 [promises of return of property and lesser charges;
coercion]; People v. Vasila (1995) 38
Cal.App.4th 865, 874 [promises of lesser charges and release on recognizance;
coercion].) However, police do not
render a waiver involuntary by encouraging a suspect to tell the truth or by
explaining that doing so would be to his advantage. (Vasila,
supra, at p. 874.)
The officers who
interviewed Palacios did not promise him anything. They mentioned his children and mother, but
did not state or otherwise imply that he would see them sooner if he spoke. Instead, they emphasized that he should talk
for the sake of giving his side of the story.
This did not cross the line into impermissible coercion.
B. Exclusion
of Redacted Portions of Palacios's Statement
Molina and Morales argue
that the trial court should have admitted more
of Palacios's statement. The
court had ordered all references to Blanco redacted. The court concluded that the portions of
Palacios's statement involving Blanco were not inculpatory to Palacios. Alternatively, the court ruled that redaction
of those portions was necessary to avoid post-trial claims by Molina or Morales
that they were Blanco and that admitting Palacios's out-of-court statement
violated their right to confrontation under People
v. Aranda (1965) 63 Cal.2d 518, and Bruton
v. United States (1968) 391 U.S. 123 (Aranda-Bruton)).
Molina and Morales
contend both rulings are incorrect, and that they have an overriding
evidence. We review for an abuse of discretion
the application of the declaration against interest hearsay exception. (People
v. Valdez (2012) 55 Cal.4th 82, 143.)
We review de novo the
admissibility of evidence under the Confrontation and Due Process Clauses of
the United States Constitution. (
846, 857; People v. Avila (2009) 46
Cal.4th 680, 698-699.)
1. Declaration
against interest
A statement is
admissible under Evidence Code section 1230 only if the proponent shows that
(1) the declarant is unavailable; (2) the declaration was against the
declarant's penal interest when made; and (3) the declaration is sufficiently
reliable. (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (
his privilege against self-incrimination,
the admissibility of the redacted portions turns on the other two
requirements. The trial court did not
abuse its discretion in concluding that Molina and Morales did not establish these
other requirements.
In determining whether a
statement is a declaration against interest, we examine the context in which
the statement was made. (
612.) Palacios was being questioned
about his involvement in a shooting death; he admitted to being in the area to
stop graffiti taggers and denied any involvement with the shooting. As a whole, the "net exculpatory
effect" of this statement was not against Palacios's interest. (Ibid.) Even if we focus on the specific portions of
Palacios's statement mentioning Blanco (People
v. Leach (1975) 15 Cal.3d 419, 441), we reach the same conclusion because
those portions simply reiterate that Palacios and Blanco had nothing to do with
the shooting.
Molina and Morales
nevertheless argue that these portions inculpate Palacios for two reasons. First, they contend that Blanco's presence
renders Palacios liable for gang enhancements.
We disagree. The presence of a
second gang member is irrelevant to the charged gang enhancement under section
186.22, subdivision (b) (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1138-1139), and only became an element of
the separate crime of street terrorism a year after Palacios made his statement
when our Supreme Court overturned the majority rule to the contrary (
that he and Blanco did anything that would constitute street terrorism or
otherwise qualify for a gang enhancement (§ 186, subds. (a) & (b)). Second, Molina and Morales assert that
Palacios mentioned Blanco only after one of the interviewing officers informed
Palacios that Blanco's presence would subject Palacios to greater criminal
liability. We need not decide whether an
officer's incorrect advisement that a statement is against a declarant's
interest could make it so because this claim is unsupported by the record.
These
portions are also not trustworthy.
Except for the common theme that he was merely in the wrong place at the
wrong time, Palacios's statement was ever changing. Palacios initially asserted that he was
alone. When he later stated that he was
with Blanco, Palacios failed to identify Blanco or provide any meaningful
description of him.
2. Aranda-Bruton
Molina and Morales argue
that the trial court was wrong to be concerned about Aranda-Bruton error. As
defined in Aranda-
confrontation bars the People from introducing the statement of a
non-testifying defendant that inculpates other defendants unless the trials are
severed or the portions implicating the other defendants are redacted. (People
v. Homick (2012) 55 Cal.4th 816, 847-848; People v. Gamache (2010) 48 Cal.4th 347, 378-379.)
Molina and Morales
contend that there was no proof that Palacios's reference to Blanco was a
reference to either of them because there was no evidence that they used the
moniker "Blanco." The trial
court had ample reason to be wary that admitting references to Blanco risked
post-trial Aranda-Bruton
objections: Vasquez identified Molina
and Morales as being present; Palacios refused to identify Blanco; and Molina
and Morales used multiple monikers.
Absent any assurance to the contrary, the trial court acted
appropriately in alternatively relying on this reason to exclude mention of
"Blanco."
3.
Molina and Morales also
argue that the hearsay rules must give way to their due process right to
present a defense. Adherence to the
rules of evidence, including Evidence Code section 1230, does not ordinarily
violate due process. (
58; People v. Lawley (2002) 27
Cal.4th 102, 154-155; Montana v. Egelhoff
(1996) 518 U.S. 37, 42.) Molina and
Morales accordingly point us to Chia v.
Cambra (9th Cir. 1995) 360 F.3d 997.
In Chia, the court held that
due process required admission of a declarant's statement taking full
responsibility for the crime and thereby exculpating the defendant. (Id.,
at pp. 1004-1005.) By contrast, Palacios
has denied any responsibility, and his statement consequently lacks trustworthiness. Moreover, Chia's
validity has been questioned. (
742, 759-760.)
II. Sufficiency
of the Evidence
Molina and Morales also
challenge the sufficiency of the evidence supporting their convictions of attempted
murder as aiders and abettors. Both
defendants argue that their convictions rest solely on their presence at the
scene and their gang membership, neither of which is sufficient to sustain
their convictions. Morales additionally
asserts that he was only an "associate" gang member who would not
have been trusted to engage in such a crime.
We review the entire record in the light most favorable to the judgment
to determine whether it contains evidence that is "reasonable, credible
and of solid value" and that would enable a reasonable trier of fact to
find the defendants guilty beyond a reasonable doubt. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
To convict a defendant
under an aiding and abetting theory, the People must prove that a perpetrator
committed the charged crime and that the aider and abettor (1) knew of the
perpetrator's unlawful purpose; (2) by act or advice, promoted, encouraged or
instigated the commission of the crime; and (3) did so with the intent or
purpose of committing, encouraging or facilitating the commission of the
offense. (People v. Prettyman (1996) 14 Cal.4th 248, 259;
1117-1118.) A defendant's mere presence
at the scene of a crime is insufficient to support aiding and abetting liability. (People
v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.)
The jury's verdicts
rested on more than Molina's and Morales's gang membership and presence at the
scene, and are otherwise supported by substantial evidence. Molina previously joined Palacios in beating
Vasquez, and did so after chasing Vasquez toward a location where other gang
members waited. This is similar to the
ambush charged in this case. Molina was
waiting alongside Morales, who was armed, in the alley into which Vasquez would
likely flee if he ran from Palacios. For
his part, Morales also previously threatened Vasquez and waited in the alley
with Molina and a gun. Morales's status
as an associate gang member only exacerbates his culpability, for he admitted
he was "putting in work" for the gang; such work would include
participating in an ambush. Based on
this evidence, the jury could reasonably conclude that Palacios, Molina and
Morales were acting in concert to corner Vasquez in the alley in order to harm
him.
III.
Jury Verdict Form Error
Defendants further
contend that their 25-year-to-life sentences for the firearm enhancement under
section 12022.53, subdivisions (d) and (e)(1), should be reversed because the
verdict form used by the jury mistakenly cited the language and statutory
citation for a different firearm enhancement.
Defendants argue that this violates Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi),
and obligates us to impose the sentence for the less-severe firearms
enhancement reflected on the verdict form.
There is no
requires a jury to find beyond a reasonable doubt all elements of offenses or
sentence-altering enhancements. (
490.) In this case, the jury was
properly instructed on the 25-year firearm enhancement. Apprendi
is not implicated in this situation. (
762, 767.)
The error in the verdict
form does not require reversal either.
We are to construe a verdict form reasonably and in light of the
issues submitted to the jury and the trial court's instructions. (People
v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1273.) We may disregard technical defects in the
verdict form if the jury's intent is "unmistakably clear." (Ibid.;
People v. Chevalier (1997) 60
Cal.App.4th 507, 514 (Chevalier).)
The jury's intent to
find the 25-year enhancement true is unmistakably clear. The trial court's instructions to the jury
were straight-forward: Determine if each
defendant is guilty of attempted murder; if so, determine if the gang
enhancement is true; and if so, determine if the 25-year firearm enhancement is
true. Defendants point out that the
verdict form did not recite the great bodily injury element of the 25-year
enhancement. However, a verdict form
need not list all elements of a sentencing enhancement. (Chevalier,
Defendants say Chevalier does
not apply because they were initially charged with the very firearm enhancement
mistakenly referenced on the verdict form.
This is of no moment. Regardless
of what was initially charged, the jury was only instructed on the 25-year enhancement, and its finding of
"true" on the verdict form "unmistakably" referred solely
to that enhancement.
IV.
Sentencing Credits
Morales also argues that
his presentence custody credits were
miscalculated. The People agree. Accordingly, we order that Morales be awarded
579 days of actual custody and 87 days of custody credit, for a total of 665
days.
We modify the judgment to
reflect a sentence of seven years to life for the attempted murder charge for
each of the defendants; and that Morales be awarded 579 days of actual
custody and 87 days of custody credit, for a total of 665 days. The trial court shall amend the abstract of
judgment accordingly and forward a copy of the amended abstract to the
affirmed.
NOT TO BE PUBLISHED.
HOFFSTADT,
J.
We concur:
GILBERT, P. J.
PERREN, J.
Alex
Ricciardulli, Judge
Superior
Court County of Los Angeles
______________________________
David L. Polsky, under
appointment by the Court of Appeal, for Defendant and Appellant Melvin
Palacios.
Lynette Gladd Moore,
under appointment by the Court of Appeal, for Defendant and Appellant Rene
Molina.
Heather J. Manolakas,
under appointment by the Court of Appeal, for Defendant and Appellant Jessie
Morales.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title=""> [1] All statutory references are to the Penal Code unless
otherwise indicated.
Palacios argues that the abstract of
judgment for each defendant erroneously reflects a seven-year determinate
sentence for the attempted murder charges.
He argues that this conflicts
with the trial court's oral pronouncement of sentence. We agree, and order that the abstract for
each of the three defendants be corrected to reflect a sentence of seven
years to life for the attempted murder charge.
(§ 664, subd. (a); § 3046, subd. (a)(1); People v. Jefferson (1999) 21 Cal.4th 86, 95.)
