P. v. Romero



















Filed 2/7/12 P. v. Romero CA2/4











NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY GONZALES ROMERO Defendant and Appellant.

B231100 (Los Angeles County Super. Ct. No. BA269229)

APPEAL from a judgment of
the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Kathleen Kennedy, Judge. Affirmed as modified, remanded with
directions.

Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan
Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.







Appellant
Johnny Gonzales Romero appeals his convictions for href="http://www.fearnotlaw.com/">first degree murder and attempted
willful, deliberate and premeditated murder.
Appellant contends there was insufficient
evidence of premeditation to support the convictions. In addition, he contends the court made
inappropriate statements to prospective jurors at the beginning of voir dire
and failed to properly exercise its discretion when imposing consecutive
sentences for the two counts. Finally,
he contends -- and respondent agrees -- that the sentence imposed for the
attempted murder count was unlawful, that custody credits were miscalculated,
and that the abstract of judgment cited the incorrect statutory subdivision for
one enhancement. We remand for correction
of the sentencing errors, but otherwise affirm.



>FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Appellant was
charged in a two-count information with the murder of Emilia Rosario Clemente
(count one, Pen. Code § 187, subd. (a)) and the attempted murder of Tony
Arellano (count two, Pen. Code §§ 664/187, subd. (a)).href="#_ftn1" name="_ftnref1" title="">[1] The information further alleged that
appellant personally used a firearm within the meaning of section 12022.53,
subdivision (b), personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivision (c), and personally and intentionally
discharged a firearm which proximately caused great bodily injury to Clemente
and Arellano within the meaning of section 12022.53, subdivision (d).



B. Trial

Evidence
was introduced that on July 3, 2004, Arellano, a drug dealer, was in
Clemente’s apartment, sitting on her couch smoking crack with her.href="#_ftn2" name="_ftnref2" title="">[2] Arellano was also drinking and had been awake
for two days. Appellant came by and they
all smoked crack together. Appellant got
up and started walking toward the door.
He stopped and asked Arellano for a rock. Arellano said he did not have any more. Appellant walked back and stood behind Arellano
while jogging in place. Appellant took
out a gun. Arellano laughed, thinking it
was a toy.href="#_ftn3" name="_ftnref3" title="">[3] Appellant shot Arellano twice, once in the
ear and once in the head. Clemente was
seated on the bed across from appellant and Arellano at the time. After being shot, Arellano was unconscious
for several minutes. When he awoke, he
did not see Clemente.href="#_ftn4"
name="_ftnref4" title="">[4] He tried to call 911, but could not get
through. He left the apartment to get
help.

After the
shooting, fingerprint specialists found fingerprints on a beer bottle inside
Clemente’s apartment and identified them as appellant’s. Investigators put together a photographic
six-pack, which included appellant’s picture.
Arellano identified appellant after reviewing the six-pack. Appellant left the state and was located in Pennsylvania approximately one month after the
shooting. In 2010, he was extradited to California.

Elpidio Quiles
had known Clemente since 1985. He had
seen appellant in Clemente’s apartment shortly before she was killed.href="#_ftn5" name="_ftnref5" title="">[5] Quiles identified appellant from a
photographic lineup as the man he had seen with Clemente.

The autopsy
revealed that Clemente had been shot twice, once in the upper chest and once in
the lower abdomen. The absence of soot
or stippling on the body indicated that the barrel of the gun had been more
than two feet away when the weapon was fired.
Investigators did not notice any bullet holes in or recover any bullets
from the apartment. No gun was
recovered.



C. Verdict
and Sentencing

The jury
convicted appellant of first degree murder
in the killing of Clemente and of attempted willful, deliberate and
premeditated murder with respect to the shooting of Arellano. It found the special allegations true.

The court
imposed a term of 25 years to life for the murder charge (count one), plus a
consecutive term of 25 years to life for the weapon enhancement under section
12022.53, subdivision (d); it imposed a consecutive term of 15 years to life
for the attempted murder charge (count two), plus a consecutive term of 25
years to life for the weapon enhancement under section 12022.53, subdivision
(d).



DISCUSSION

A. Premeditation

Appellant
contends the jury’s findings that the murder of Clemente and the attempted
murder of Arellano were premeditated was unsupported by the evidence. For the reasons explained below, we disagree.

A murder that
is willful, premeditated and deliberate is murder in the first degree. (§ 189.)
“[T]he crime of attempted murder is not divided into degrees. [Citation.]
The prosecution may seek a jury finding that an attempted murder was
‘willful, deliberate, and premeditated’ for purposes of sentence
enhancement. [Citations.]” (People
v. Smith (2005) 37 Cal.4th 733, 740.)
A killing or attempted killing is premeditated and deliberate “if it
occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” (>People v. Stitely (2005) 35 Cal.4th 514,
543.) “‘Deliberation’” refers to
“careful weighing of considerations in forming a course of action” and
“‘premeditation’” means “thought over in advance. [Citations.]”
(People v. Koontz (2002) 27
Cal.4th 1041, 1080.) The process of
premeditation and deliberation does not require any extended period of
time. (People v. Cook (2006) 39 Cal.4th 566, 603.) “‘The true test is not the duration of time
as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .’” (People
v. Mayfield (1997) 14 Cal.4th 668, 767.)


“Review on
appeal of the sufficiency of the evidence supporting the finding of
premeditated and deliberate murder [or attempted murder] involves consideration
of the evidence presented and all logical inferences from that evidence in
light of the legal definition of premeditation and deliberation that was
previously set forth. Settled principles
of appellate review require us to review the entire record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence -- that is, evidence which is reasonable, credible, and of solid value
-- from which a reasonable trier of fact could find that the defendant
premeditated and deliberated beyond a reasonable doubt.” (People
v. Perez (1992) 2 Cal.4th 1117, 1124.)
“The standard of review is the same in cases . . . where
the People rely primarily on circumstantial evidence.” (Ibid.) “‘Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence, it is
the jury, not the appellate court which must be convinced of the defendant’s
guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment.’” (Ibid.)

The Supreme
Court has “distilled certain guidelines to aid reviewing courts in analyzing
the sufficiency of the evidence to sustain findings of premeditation and
deliberation”: “(1) planning activity,
(2) motive, and (3) manner of killing.”
(People v. Perez, >supra, 2 Cal.4th at p. 1125.) “‘Analysis of the cases [shows] that [the
Supreme Court] sustains verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least extremely strong
evidence of (1) or evidence of (2) in conjunction with either (1) or
(3).’” (Ibid., quoting People v.
Anderson (1968) 70 Cal.2d 15, 27.)
“These factors need not be present in any particular combination to find
substantial evidence of premeditation and deliberation. [Citation.]”
(People v. Stitely, >supra, 35 Cal.4th at p. 543.) “However, ‘[w]hen the record discloses
evidence in all three categories, the verdict generally will be sustained.’” (Ibid.,
quoting People v. Proctor (1992) 4
Cal.4th 499, 529.)

The evidence supports the
inference that appellant had a motive for killing Arellano -- his refusal to
supply him with more crack.href="#_ftn6"
name="_ftnref6" title="">[6] There was also evidence of planning. Appellant, having earlier concealed a loaded
weapon on his person, maneuvered himself behind and close to Arellano. Before drawing the gun, he jogged in place
for a period of time, giving him sufficient opportunity for deliberation and
reflection. The manner of killing also
supported the jury’s verdict. Appellant
shot Arellano twice, in the ear and the head, at close range. The fact that neither bullet proved fatal did
not require the jury to conclude that appellant did not intend to kill Arellano
or that he did so without deliberation and premeditation.

There was also
evidence that appellant had a motive for killing Clemente. She had just witnessed him shoot Arellano and
could easily have identified him to authorities due to their prior
acquaintance. Although there was no
evidence demonstrating the precise interval between the shooting of Arellano
and the shooting of Clemente, the fact that she was shot twice in two different
areas of her body -- both areas where the bullet was likely to strike vital
organs and cause death -- supported that appellant had time to reflect. The jury could reasonably have inferred that
having shot Arellano in cold blood, appellant transferred his attention to
Clemente and made a calculated decision to kill her to prevent her from being a
witness against him, firing directly into her chest and abdomen.href="#_ftn7" name="_ftnref7" title="">[7]

B. Court’s
Statements to Jurors

1. Background

On the first
day of voir dire, the court addressed the prospective jurors about the
importance of jury service, the duties of a juror and the standard for claiming
hardship. During this discourse, the
court stated: “Now some of you may be
thinking, ‘Wow, this is an opportunity for me not to have to go to work for a
few days. Not bad.’ [¶] And some of you might also be thinking,
‘This is an opportunity for me to contribute to the effective criminal justice
system, to participate in seeing that justice is done in a given case.’ And that’s what we are all here to do, to see
that justice is done in this particular case, to select twelve citizens who
don’t have an interest in how this case comes out, but have an interest only
[in] seeing that justice is done by seeing that the jurors participate in a
fair trial for the defendant here and a fair trial for the prosecution, and . .
. the parties that were affected in this case, the defendant who has been
waiting for trial for sometime, the victim, one of whom we expect will testify
and one of whom will not be testifying in this case, and the witnesses who are
involved in this matter, that they, too, can see that there is ultimately a href="http://www.mcmillanlaw.com/">fair trial that occurs and that the jury
reaches a just result.”



2. Analysis

Jurors are not
to allow “public opinion” or the possible reactions of their own families and
significant others to influence their determinations. (People
v. Morales (1992) 5 Cal.App.4th 917, 928; CALJIC No. 1.00; CALCRIM No.
200.)href="#_ftn8" name="_ftnref8" title="">[8] In addition, appeals to sympathy for the
victim are “‘out of place during an objective determination of guilt.’” (People
v. Martinez (2010) 47 Cal.4th 911, 957, quoting People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) Appellant contends that by telling the
prospective jurors to consider the victims and the witnesses and their desire
for a “fair trial,” the court was essentially asking them take public opinion
and community expectations into account or to heed the presumed desire of the
witnesses, all of whom were called by the prosecution, to find appellant
guilty.

The court’s
comments are not reasonably susceptible to such an interpretation. The court did no more than inform the
prospective jurors of the importance of a fair trial and just verdict. It emphasized that their sole responsibility
to all the participants, including
appellant, was to be fair and “see that justice is done.” The court’s words did not suggest that the
victims or the witnesses were more important than appellant, or that reaching a
just result required a particular verdict.


Additionally,
we note that appellant’s failure to object and request clarification resulted
in forfeiture of the issue. (See >People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 322; People v. Melton
(1988) 44 Cal.3d 713, 735.) Appellant
contends it would have been futile to object because “the court manifestly
believed that the way it phrased its comments and the comments themselves, were
proper, or else it would not have made them.”
This argument proves too much, suggesting that only when a court is
already aware of some impropriety in its comments to the jury would an
objection or request for clarification prove anything but futile. The law is to the contrary. (See ibid.)



C. Consecutive
Sentencing

During
the sentencing hearing, defense counsel
asked the court to “consider concurrent time,” but expressed doubt that the
court had discretion “based on the charges.”
The prosecutor requested a consecutive sentence without suggesting the
court lacked discretion to do otherwise.
In passing sentence, which included consecutive sentences for counts one
and two, the trial judge stated:
“[T]here are separate victims, and there were -- the court sees no reason -- and I don’t think under the law it’s
even permitted when there are separate victims to have concurrent
sentencings.” There is no dispute that
the court had the discretion to impose concurrent sentences for counts one and
two. Appellant contends the judge’s
comments indicate she failed to exercise her discretion, and that the matter
must, therefore, be remanded for re-sentencing.


The trial
judge clearly saw “no reason” to impose concurrent sentences, and her comments
indicate she chose consecutive sentences because the crimes impacted two
victims. Thus, even had the judge fully
understood her discretionary power to sentence appellant concurrently for the
two crimes, she would have chosen consecutive terms. “‘Where . . . a sentence choice is based on
an erroneous understanding of the law,’” the matter must generally be remanded
“‘for an informed determination.’” (>People v. Gamble (2008) 164 Cal.App.4th
891, 901; People v. Downey (2000) 82
Cal.App.4th 899, 912.) “However, ‘[i]f
the record shows that the trial court would not have exercised its discretion
even if it believed it could do so, then remand would be an idle act and is not
required.’” (People v. Gamble, supra,
at p. 901, quoting People v. Sanders
(1997) 52 Cal.App.4th 175, 178.) Remand
is not required here.



D. Sentencing
Errors

There
is no dispute that the court erroneously imposed a sentence of 15 years to life
for count two, the attempted murder of Arellano, and that appellant should
instead have been sentenced to life with the possibility of parole on that
count. (See § 664, subd. (a).) In addition, there is no dispute that
appellant is entitled to an additional day of presentence custody credit. Finally, both sides agree that the abstract
of judgment erroneously identified the wrong subdivision of section 12022.53 --
subdivision (b), rather than subdivision (d) -- to support the sentence
enhancement imposed on count two.
Accordingly, we order the abstract of judgment amended to reflect the
appropriate sentence for count two, an additional day of custody credit, and
the appropriate citation to the statute under which the count two enhancement
was imposed, viz., section 12022.53,
subdivision (d).





DISPOSITION

The
judgment is affirmed. The clerk of the
superior court is directed upon issuance of the remittitur to prepare a
corrected abstract of judgment (1) changing the sentence on count two to life
with the possibility of parole; (2) changing custody credits to reflect credit
for 365 days; and (3) changing the statutory citation for the count two
enhancement to section 12022.53, subdivision (d). The clerk is directed to forward the
corrected abstract to the Department of
Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









MANELLA,
J.



We
concur:









EPSTEIN, P. J.









WILLHITE, J.