P. v. Roman



















Filed 10/16/12 P. v. Roman CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. TONY ERNESTO ROMAN, Defendant and Appellant.

E054698 (Super.Ct.No. RIF10003632) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. W. Charles
Morgan, Judge. Affirmed as modified.

Mark Alan Hart, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting
and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.

Defendant Tony Ernesto Roman meted out discipline
to an errant member of his gang by shooting and killing him.

After a jury trial, defendant was found guilty on
one count of first degree murder
(Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally
and intentionally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)) and a gang
enhancement (Pen. Code, § 186.22, subd. (b)), and one count of gang
participation (Pen. Code, § 186.22, subd. (a)). Defendant was sentenced to a total of 50
years to life in prison, plus the usual fines and fees.

Defendant now contends:

1. Defense
counsel rendered ineffective assistance by failing to request instructions on href="http://www.fearnotlaw.com/">voluntary intoxication.

2.
Punishment for both murder and causing death by discharging a firearm
violated double jeopardy.

3.
Punishment for both murder and gang participation violated Penal Code
section 654 (section 654).

4. The
trial court erroneously failed to award sufficient presentence custody credit.

The People concede that the sentence violates section
654. We agree; we will modify the
sentence so as to correct this error.
While this appeal was pending, the trial court remedied the error
regarding presentence custody credit.
Otherwise, we find no error.
Hence, we will affirm the judgment as modified.

I

FACTUAL BACKGROUND

Defendant was the second-in-command of a Corona
gang called the Visioneros (VNS). His
moniker was “Rider.”

The victim, Sergio “Downs”
Rocha, was also a member of VNS.
Defendant and Rocha had been friends since childhood. As of 2010, however, they were “bumping
heads” over a number of issues.

First, Rocha was using methamphetamine. Defendant was “angry and disappointed,”
because he “hated meth.”

Second, Rocha had started hitting his girlfriend,
Vanessa Merced. At one point, defendant
told Rocha, “Don’t put your hands on her or I’ll put my hands on
you . . . .”

Third, Rocha had trashed Merced’s
apartment. Defendant was “appalled” and
said that Rocha “was giving everyone a bad
name . . . .” He
added that Rocha “is fucking up and I’m tired of apologizing for him.”

Fourth, and most grievously, Rocha had defied
defendant’s orders regarding a gun.
Rocha was the VNS “sergeant at arms,” meaning that he was the custodian
of the gang’s firearms. The gang,
however, had only one gun — a chrome .22 semiautomatic with a black handle.

When defendant saw Rocha twirling the gun with
the safety off, he took it away from him and gave it to another VNS member,
Daniel “Weeble” Ocampo. Rocha then stole
the gun from Ocampo’s apartment. Defendant
found it in Rocha’s apartment and stole it back. In the wake of this incident, defendant told
others that he wanted Rocha out of the gang.

Rocha started avoiding defendant. In early August 2010, defendant phoned him
and asked for a meeting, but Rocha insulted defendant, then hung up on him.

On August
17, 2010, around 11:00 a.m.,
according to Rocha’s girlfriend, while she and Rocha were at Ocampo’s
apartment, Ocampo told them to leave because defendant was on his way there and
defendant was drunk. (At trial, Ocampo
did not remember this.)

That same day, around 5:30 p.m., Rocha and his girlfriend were hanging out
at a picnic table outside Ocampo’s apartment building. They were with a small group of people,
including Ocampo and Paul “Oso” Sanchez, who was yet another VNS member. Ocampo knew that defendant was looking for
Rocha. He phoned defendant and left a
message for him saying that Rocha was there.

Shortly thereafter, a man dressed all in black,
including a hoodie, gloves, and a bandanna over his face, approached the group.href="#_ftn1" name="_ftnref1" title="">^[1] Merced
recognized him as defendant, based on his voice, his height, and “the way he
walked . . . .” At
trial, Ocampo identified him as defendant.
Sanchez likewise identified him as defendant.

Defendant ordered Rocha to get up. Defendant then said, “Vanessa, tell your man
to get up and stop being such a bitch.”
She told Rocha not to get up, but Rocha said he had to. He kissed her, then stood up. Defendant pulled out the chrome .22 and shot
Rocha once in the forehead, killing him.

Merced
later told the police that the shooter sounded drunk. (At trial, she did not remember saying this.)

About a week after the shooting, in a phone call
with another VNS member, Johnny “Spooke” Recendez, defendant admitted that he
was the shooter. When Recendez
commented, “That’s fucked,” defendant replied that he was “cleaning up
house.” Defendant went to North
Carolina, where he was arrested. He falsely told the police that, on the date
of the shooting, he was in North Carolina.

Defendant, testifying on his own behalf, denied
shooting Rocha. When the shooting
occurred, he testified, he was at the home of his aunt, Rosanna Alvarado. He was reluctant to give her name because she
had outstanding warrants.

II

DEFENSE COUNSEL’S FAILURE TO
REQUEST INSTRUCTIONS

ON VOLUNTARY INTOXICATION

Defendant contends that his trial counsel
rendered ineffective assistance by failing to request instructions on voluntary
intoxication.

“ . . . ‘In assessing claims
of ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence
in the outcome. [Citations.] A reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.
[Citations.] If the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one,
or there simply could be no satisfactory explanation. [Citation.]’
[Citation.]” (>People v. Gamache (2010) 48 Cal.4th 347,
391.)

“[E]vidence of voluntary intoxication [is]
relevant on the issue of whether the defendant actually formed any required
specific intent.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1242-1243; see also Pen.
Code, § 22, subd. (b).) Thus, in a
homicide case, it may be relevant to the issues of premeditation and
deliberation and intent to kill. (Pen.
Code, § 22, subd. (b).)

“The trial court,” however, “has no duty to
instruct sua sponte on voluntary
intoxication. [Citation.]” (People
v. Clark (1993) 5 Cal.4th 950, 1022, disapproved on an unrelated point in >People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.) Rather, “‘[a]n
instruction on the significance of voluntary intoxication is a “pinpoint”
instruction that the trial court is not required to give unless requested by
the defendant.’ [Citation.]” (People
v. Verdugo (2010) 50 Cal.4th 263, 295.)

“‘[A] defendant is entitled to such an
instruction only when there is substantial evidence of the defendant’s
voluntary intoxication and the intoxication affected the defendant’s “actual
formation of specific intent.”’
[Citation.]” (>People v. Verdugo, supra, 50 Cal.4th at p. 295.)
Substantial evidence of intoxication alone is not enough; there must
also be evidence that the intoxication impaired the defendant’s ability to
formulate intent. (People v. Williams (1997) 16 Cal.4th 635, 677-678.) Here, while there was some evidence that
defendant had been drinking, there was absolutely no evidence that this had any
effect on his ability to form any specific intent. If defense counsel had requested a voluntary
intoxication instruction, the trial court could properly have refused it. Thus, the failure to request one was not
ineffective assistance.

Separately and alternatively, defendant cannot
show prejudice. There was powerful
evidence of premeditation and deliberation and, a fortiori, of intent to
kill. Defendant had decided that the
victim had to be removed from the gang and was on the lookout for him. After Ocampo tipped defendant off, defendant
dressed all in black, putting a bandanna over his face and wearing gloves — all
this on an August day in the Inland Empire that Merced described as “freakin’
hot.” He also armed himself with the
gang’s only gun, the same gun that Rocha had previously misappropriated. In Merced’s opinion, this was deliberate and
“symbolic. [Rocha] stoled [>sic] it . . . [and] he got
shot with the gun he stoled [sic].”

The evidence that defendant was intoxicated was
minimal. And, as already discussed,
there was no evidence that intoxication had any effect on his ability to form
intent. Thus, even if the jury had been
instructed on voluntary intoxication, there is no reasonable probability that
it would have returned a more favorable verdict.

III

PUNISHMENT FOR BOTH MURDER AND


THE FIREARM ENHANCEMENT

Defendant contends that the imposition of
punishment both for murder and for personally and intentionally discharging a
firearm, causing death, violates double jeopardy.

As defendant concedes, however, the California
Supreme Court has held that enhancements are not treated as crimes or offenses
for purposes of the multiple conviction aspect of double jeopardy. (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1130, and cases cited.) He indicates that he is raising this issue
“to preserve it for later review.” That
is his privilege. At this stage,
however, we must reject it.

In any event, even assuming that a conduct
enhancement could violate double jeopardy, Penal Code section 12022.53 does
not. “In Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d
535 (1983), the Supreme Court made clear that the protection against multiple
punishments for the same offense did not necessarily preclude cumulative
punishments in a single prosecution. The
key to determining whether multiple charges and punishments violate double
jeopardy is legislative intent.
[Citation.] When the legislature
intends to impose multiple punishments, double jeopardy is not invoked. [Citation.]

“Here, the language of California Penal Code §
12022.53 is clear. Subsection (d)
provides for a 25 year enhancement when a ‘firearm is used’ to commit
murder. There is, therefore, no question
as to what the California legislature intended. . . . [T]he California legislature has simply
determined that ‘a criminal offender may receive additional punishment for any
single crime committed with a firearm.’”
(Plascencia v. Alameida (9th
Cir. 2006) 467 F.3d 1190, 1204.)

We therefore conclude that the sentence did not
impose multiple punishment in violation of double jeopardy.

IV

MULTIPLE PUNISHMENT FOR BOTH
MURDER

AND GANG PARTICIPATION

Defendant contends that the imposition of
separate and unstayed punishment for both murder and gang participation
violated section 654.

The crime of gang participation has three
elements: (1) “Active participation in a
criminal street gang, in the sense of participation that is more than nominal
or passive”; (2) “‘knowledge that [the gang’s] members engage in or have
engaged in a pattern of criminal gang activity’”; and (3) “‘willfully
promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by
members of that gang.’ [Citation.]” (People
v. Lamas (2007) 42 Cal.4th 516, 523.)

While this appeal was pending, the Supreme Court
held that section 654 bars multiple punishment for both gang participation and
for the underlying felonious criminal conduct.
(People v. Mesa (2012) 54
Cal.4th 191, 193, 197-200; accord, People
v. Sanchez (2009) 179 Cal.App.4th 1297, 1313-1316 [Fourth Dist., Div.
Two].) Here, the murder was the only
felonious criminal conduct supporting the gang participation charge. Thus, as the People concede, the trial court
should have stayed the sentence for gang participation.

In our disposition, we will modify the sentence
accordingly.

V

PRESENTENCE CUSTODY CREDIT

Defendant contends that the trial court
erroneously failed to award him presentence custody credit for the time he
spent in custody in North Carolina.

While this appeal was pending, the trial court,
at defendant’s request, modified the judgment so as to award him the
presentence custody credit that he is seeking.
Hence, as defendant concedes, this contention is moot.

VI

DISPOSITION

The trial court is directed to modify the
judgment by staying execution of the concurrent two-year term imposed on count
2; the total term is unaffected. This
stay will become permanent once defendant has served the rest of his
sentence. The judgment as thus modified
is affirmed. The superior court clerk is
directed to prepare a new sentencing minute order and a new abstract of
judgment and to forward a certified copy of the amended abstract to the
Director of the Department of Corrections
and Rehabilitation. (Pen. Code,
§§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We
concur:





McKINSTER

Acting P. J.





CODRINGTON

J.