P. v. Romero
Filed 5/2/13 P. v. Romero
CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
STEVEN
ROMERO,
Defendant and Appellant.
B240180
(Los Angeles County
Super. Ct. No. NA088206)
APPEAL from
a judgment of the Superior
Court of
County. Mark C. Kim,
Judge. Affirmed with directions.
Thomas T.
Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven
Romero (defendant) appeals from his murder
conviction. He contends that the
trial court erred in denying three Wheeler/
use of CALJIC Nos. 3.00, 3.01, and 3.02 to instruct the jury. In addition, defendant contends that the
jury’s findings of guilt and gang motive were not supported by
effect of instructional error requires reversal of the judgment. Defendant also asks that we modify the
abstract of judgment by striking the sentence enhancement imposed under Penal
Code section 667, subdivision (a)(1).
defendant’s contentions and affirm the judgment. We also direct the trial court to correct
clerical errors in the abstract of judgment.
BACKGROUND
Procedural history
Defendant was charged with the first degree murder of Fernando
Huerta (Huerta) in violation of section 187, subdivision (a). The information also alleged that the murder
was gang related as defined in section 186.22, subdivision (b)(1)(C); that
defendant had suffered two prior felony convictions within the meaning of
section 667, subdivision (a), and for purposes of the “Three Strikes†law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(i)); and that he served two prior
prison terms within the meaning of section 667.5, subdivision (b).
Defendant waived his
prior convictions and admitted them. The
jury found defendant guilty of first degree murder as charged and found true
the gang allegation. On March 16, 2012, the trial court sentenced defendant to a total term of 55 years to
life in prison, comprised of 25 years to life for murder, doubled as a second
strike, plus five years due to one of the prior felony convictions. The court stayed the gang enhancement and
awarded 778 actual days of custody credit.
The court also ordered defendant to pay mandatory fines and fees and to
provide a DNA sample. Defendant filed a
timely notice of appeal from the judgment.
Prosecution evidence
Just before 11:00
p.m. on April 12, 2006, musician Reyes Serrano (Serrano) was sitting in his truck, taking
a break between sets at the Los Potros restaurant in Long Beach, when he
saw a gold car park next to him. A
Hispanic man with a cell phone to his ear got out of the gold car and went to a
corner of the parking lot where a black SUV pulled up close to him, about 40
feet from Serrano’s truck. Serrano then
saw another man, later identified as Huerta, come out of the restaurant with a
cell phone to his ear. As Huerta walked
further into the parking lot, Serrano saw four Hispanic men exit the black SUV
and approach Huerta. Serrano then heard
the sound of many shuffling feet from the area of the SUV, saw what appeared to
be a fight, and then saw Huerta limping quickly back toward the restaurant as
the SUV left the parking lot at a high rate of speed, followed by the gold
car. A woman yelled out, “Call an
ambulance,†as she helped Huerta to the ground in the doorway of the
restaurant.
Huerta died that night as a result of multiple stab wounds. Along with nonfatal wounds, Huerta was
fatally stabbed twice in the chest by a single-edged blade, possibly scissors,
which penetrated his heart. Some other
smaller blade, possibly a knife, was used to inflict cuts in Huerta’s
back. The police recovered a pair of
bloody scissors in the parking lot of the restaurant and blood was later
recovered from the shoe of suspect Jose Ceja (Ceja). Huerta’s blood provided DNA which was found
to match the DNA in the blood on the scissors and on Ceja’s shoe.
Homicide detectives interviewed Nicholas Canales (Canales) on April 27, 2006, 15 days after the murder.
At trial, Canales a reluctant, prosecution witness, admitted that he was
once a member of the East Side Longo (ESL) gang of Long Beach, and that he knew
defendant and Ceja. In 2008, Canales
testified against Ceja, whom he knew as “Perico†and was thereafter
beaten. The beating resulted in a head
wound requiring 89 stitches, leaving a visible scar. After a series of evasive answers, a
recording of the police interview was played for the jury.
In the interview, Canales told the detectives that “Massive,â€
another member of the ESL gang, came to his home one afternoon and told Canales
that his friends Perico and “Capone†had “shanked some fool up†and needed a
place to stay. Canales identified Capone
as defendant and a member of the Malditos clique of the ESL gang. He told the detectives that Ceja was also a
member of ESL, but belonged to the Barrio Viejo clique. Canales knew the manager of the building
across the street from his and arranged for defendant and Ceja to spend the
night in an empty apartment there. Later
that evening in the apartment defendant told Canales that he, defendant, had
“shanked some fool,†a member of Barrio Small Town (BST), another Long Beach
gang. Defendant said that he intended to
leave town for Las Vegas, that he was concerned because he had dropped his knife while
running away, and he hoped that he wiped the knife before it dropped. Defendant also told Canales that Ceja was
with him, but did not say where the stabbing took place.
Canales saw defendant and Ceja again the next morning before they
left. Later, Canales received a message
on his home answering machine in which defendant said that if anyone needed to
reach him or send him clothes, to contact “Gabby.â€
defendant’s girlfriend, Gabriella Sanchez (Sanchez).
Sanchez testified that defendant was her boyfriend in 2006. He was a member of the Malditos clique of the
ESL gang, and she knew him as Stevie or Capone.
Sanchez was also acquainted with Ceja and had seen him with defendant on
several occasions. Sanchez was familiar
with several of defendant’s tattoos and she explained that the “C†and “K†on
his calves stood for “Crip Killer†(although she denied this on
cross-examination). Sanchez was also a
reluctant witness, and gave a series of evasive answers. She denied she was afraid, but admitted she
did not want to testify and could be hurt or killed for doing so. Sanchez explained several slang terms
commonly used by gang members, such as “jura†for the police and “throwing a
rat on somebody†for being a witness against someone.
Long Beach Police Officer Daniel Mendoza was a homicide detective in
2006 and interviewed Sanchez while investigating this case. Sanchez told Officer Mendoza that defendant
belonged to the Malditos clique of the ESL gang at that time. She said that defendant had telephoned her
and said he was frightened because the police were looking for him and Ceja,
and that the “hood†was upset at defendant, Perico, and the others involved in
a stabbing in which a member of the ESL gang had been killed.
he hoped that no one from the hood would throw a rat on him. Sanchez told Officer Mendoza that later,
sometime around Mother’s Day, she met defendant for tacos in Tijuana, Mexico.
Jessica Preli, the manager of the apartment building where Canales
arranged for defendant and Ceja to spend the night, testified that the building
was in the neighborhood claimed by the ESL gang. She knew Canales as a member of that gang and
occasionally allowed him to use empty apartments for his fellow gang members in
order to avoid conflict with his gang.
Preli also knew defendant as a gang member whose name was Stevie or
Capone. The night of April 13, 2006,
after giving Canales permission for defendant to stay in one of the empty
apartments, Preli saw defendant on the balcony.
The next morning, she overheard defendant on the telephone saying that
he needed money to go to Mexico, that the police might be looking for him, and
that it was getting too “hot†in Long Beach.
In December 2009, defendant was arrested in Mexico, turned over to
American authorities, and brought back for trial. As Officer Mendoza drove him from the border,
defendant asked how Officer Mendoza had picked up his trail. As he was being booked, defendant admitted he
was a member of the Malditos clique of the ESL gang.
Detective Tim Olson testified that
he and his partner, Detective Anguiano, arrested Ceja about one week after
Huerta’s death. Ceja admitted he was a
member of the ESL gang and that his gang moniker was Perico. Detective Olson had worked with the Long
Beach Police Department gang unit for 10 years and had expert knowledge of the
ESL gang. In his opinion Ceja was a
member of the ESL gang. He identified
Ceja’s tattoos in photographs and explained that they demonstrated his
membership in the Barrio Viejo clique of the ESL gang.
A few months before Huerta’s death,
Detective Olson arrested defendant in an unrelated incident. At that time, defendant admitted he was a
member of the ESL gang and that his gang name was Capone. Detective Olson had also stopped defendant in
2005. On both occasions, Detective Olson
observed tattoos which identified defendant with the ESL gang. During the 2006 arrest, Detective Olson
noticed that a “Longo†tattoo had been added since the 2005 encounter. He also explained that the initials “C†and
“K†stood for Crip Killer.
Long Beach Police Sergeant Cory
Brown testified that while on patrol in 2002, he issued a citation to defendant
who was in Ceja’s company. Officer Udom
Sawai testified that when he stopped defendant in traffic in 2002, Ceja was in
the front passenger seat. When he and
his partner booked the two men, Officer Sawai observed that Ceja had ESL and
Barrio Viejo tattoos.
Long Beach Police Detective Chris Zamora testified as the
prosecution’s gang expert. He had spent
most of his career investigating the criminal activities of the ESL gang, the
largest Hispanic gang in Long Beach with about 900 members. Subgroups or cliques of the ESL gang included
the Malditos and Barrio Viejo. Members
of the two cliques associated routinely with one another.
Detective Zamora testified that the gang’s territory was located
primarily in central Long Beach, but had expanded over the years to include
almost the entire city. He explained
that territory was established and expanded by intimidating the community and
other gang members with violence, followed with gang graffiti and more criminal
activity. Detective Zamora explained
that the concepts of fear and respect were very important in gang culture and
in the ESL gang in particular. Openly
committing violent crimes and threats helped the gang maintain and control its
territory by discouraging people from calling the police or cooperating with
law enforcement.
The primary activities of the ESL gang were narcotics sales,
physical assaults, hate crimes, assaults with a deadly weapon, gang shootings,
gang murders, and attempted murders. The
gang’s other common criminal activities included
robberies, carjacking, and possession of illegal weapons. Detective Zamora presented the certified
convictions of two active members of the ESL gang: Genaro Zaragoza, who committed an assault
with a firearm in 2004; and Angel Ramirez, who committed attempted murder in
2004.
Many Hispanic gangs, including the ESL gang, are aligned with the
Mexican Mafia prison gang which has established a code of conduct for its
affiliated gangs. The most serious rule
violation is “snitching,†meaning cooperating with law enforcement in any way,
and a gang discourages cooperation with law enforcement by punishing the
“snitch,†whether or not a member of the gang.
Punishment can range from intimidation or physical assault to
murder. Detective Zamora spoke to
Canales after his beating. Canales
reported that he had been “jumped†by ESL members due to his testimony, and he
believed Ceja had placed him on the “green light†list for punishment. Canales told Detective Zamora that Ceja had
said, “I wish they had done a better job on your head,†which Canales
understood as a threat because Ceja was a high-ranking member of ESL. When Detective Zamora told Canales that
defendant would be in the courtroom when he testified, Canales put his head
down.
Detective Zamora expressed his opinion that defendant and Ceja were
both active ESL gang members, that defendant was a member of the Malditos
clique and that Ceja’s clique was Barrio Viejo.
His opinion was based on information gained during the investigation of
this case, his prior contacts with them and his observation of their gang related
tattoos, as well as Detective Zamora’s communication with other law enforcement
officers. Defendant and Ceja were known
as “road dogs,†meaning fellow gang members who were friends and who had been
previously contacted in each other’s company by law enforcement officers.
Detective Zamora was familiar with Los Potros restaurant, which was
located within ESL territory and was the site of regular narcotics
trafficking. He testified that
circumstances in which a gang member would kill another member of his own gang
included rivalry between junior and senior factions, competition for narcotics
distribution, and rule violations.
The prosecution gave Detective Zamora the following hypothetical
facts: in ESL territory, ESL road dogs
shank a fellow gang member in the parking lot outside a restaurant known for
narcotics trafficking. The prosecutor
then asked for Detective Zamora’s opinion whether such a crime would be
committed for the benefit of, in association with, or at the direction of the
ESL gang. Detective Zamora had no doubt
the crime was committed in association with the gang, as at least two members
committed the crime together. He was
also of the opinion that the crime was committed at the direction of the gang
and for that gang’s benefit. The basis
of his opinion was that the crime was a violent act, committed in gang
territory by members of the same gang acting together. Such a crime would instill fear in the
community and in rival gangs; and if the victim was a rule violator, it would
help to maintain discipline within the ESL gang.
Defense evidence
Defendant called Canales, who
testified he was not married in 2006 and did not have an answering machine at
home. Before speaking to the detectives
in this case, Canales was arrested for discharging a firearm and would have
gone to prison on the charge, but police said they would take care of it. The police told Canales if he cooperated he
would be placed on probation. Canales
agreed to cooperate and to enter a plea in exchange for probation, which he
later violated and was sent to prison.
Canales claimed not to remember arranging for an apartment for
defendant; that defendant said he had shanked someone; or that Canales told the
police of defendant’s statement.
DISCUSSION
Defendant contends
that the trial court erred in denying three Wheeler/
the prosecution had used peremptory challenges to exclude an African-American
prospective juror (Juror No. 4670) and two Hispanic prospective jurors (Jurors
No. 7651 and 6924), resulting in a violation of defendant’s right to a fair
trial and impartial jury under the United States and California Constitutions.
The use of
peremptory challenges to remove prospective jurors solely on the basis of a
presumed group bias violates both the state and federal Constitutions. (Wheeler,
supra, 22 Cal.3d at pp. 276-277; Batson,
supra, 476 U.S. at p. 89.) In
reviewing a Wheeler/
in a three-step inquiry: the first requires
the objecting party to make a prima facie showing of prohibited group bias; in
the second, the burden shifts to the party who exercised the peremptory
challenge to articulate a nondiscriminatory reason; and in the third step, the
court determines whether the objecting party has established purposeful
discrimination. (People v. Silva (2001) 25 Cal.4th 345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.) “The ultimate burden of persuasion regarding
[discriminatory] motivation rests with, and never shifts from, the opponent of
the strike. [Citation.] The three-step procedure also applies to
state constitutional claims.
[Citations.]†(
612-613 (Lenix); see also
162, 170-171.)
In this case, the
trial court asked the prosecutor to articulate a nondiscriminatory reason for
challenging the three jurors without ruling that defendant had made a prima
facie showing of prohibited group bias.
The first step is thus considered moot and we “‘skip to
prosecutor’s reasons for dismissing [the three] prospective jurors.’ [Citations.]â€
(People v. Riccardi (2012) 54
Cal.4th 758, 786-787 (Riccardi).)
The trial court’s determination that the prosecution’s motive for
the challenge was nondiscriminatory presents a question of fact, which we
review using the substantial evidence standard.
(Hernandez v. New York (1991)
500 U.S. 352, 364-365; Lenix,
regarding the sufficiency of a prosecutor’s justification for exercising
peremptory challenges ‘“with great restraint.â€â€™
[Citation.] We presume that a
prosecutor uses peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide reasons from
sham excuses. [Citation.] So long as the trial court makes a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered,
its conclusions are entitled to deference on appeal. [Citation.]â€
(People v. Burgener (2003) 29
Cal.4th 833, 864.) The trial court’s
ruling will not be overturned on appeal unless it is shown to be clearly
erroneous. (Riccardi, supra, 54
Cal.4th at p. 787.)
Defendant contends that the trial
court erred in finding his motion untimely with regard to Juror No. 4670, and
that the court erred in its belief that to make a prima facie showing,
defendant was required to show a pattern of discrimination. The trial court did not base its ultimate
ruling on either of these two issues; it ruled on the merits of defendant’s
motion after hearing the prosecutor’s reasons.
At most, the challenged findings created an ambiguity that we may bypass
in favor of the trial court’s ruling on the ultimate issue of purposeful
discrimination. (See
Cal.4th at pp. 786-787; People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1009-1010.) We therefore
turn directly to defendant’s remaining contention that the trial court failed
to make a reasoned evaluation of the prosecution’s justification for exercising
this peremptory challenge.
When asked to state the reason for
challenging Juror No. 4670, an African-American woman, the prosecutor stated
that Juror No. 4670 reported a bad experience with the police, and that she had
wanted to be a police officer but that did not work out. The prosecutor added: “She’s also young and single, which sometimes
I’ll keep somebody who is young.
Sometimes I will keep somebody who is single. But those are factors I take into
account. By far the most important
factor for me was that she explicitly said she had a bad experience with the
police.â€
The trial court found the negative
experience with police officers was a sufficient reason. The California Supreme Court has “‘repeatedly
upheld peremptory challenges made on the basis of a prospective juror’s
negative experience with law enforcement.’
[Citations.]†(
We also note that peremptory challenges have been deemed appropriate
where the prospective juror is immature or single with limited life
experience. (People v. Sims (1993) 5 Cal.4th 405, 430-431; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.)
Defendant contends that the prosecutor’s insufficient voir dire
regarding Juror No. 4670’s police experience demonstrates that his reasons were
pretextual. We disagree. The trial court conducted most of the voir
dire, limited counsel’s questioning, and precluded Juror No. 4670 from
providing additional details about her experience. Further, we find that substantial evidence
supports the trial court’s ruling. Juror
No. 4670 stated that she was single and worked as a dispatcher for a security
company. Her father was a Los Angeles
police officer whose position involved the investigation of gangs and narcotics
trafficking. With regard to her negative
experience with law enforcement, she reported that while parked in her new car
waiting for a friend, Gardena police officers passed her, turned around,
approached and rudely questioned her.
Later in voir dire, the trial court asked whether anyone had any type of
legal training. Juror No. 4670 replied
that she had majored in criminal justice, intending to become a police officer,
but it had not worked out.
Defendant also contends that a
comparison with several seated jurors shows that the prosecutor’s reasons were
pretextual. Defendant represents that
Juror No. 7061 was ultimately seated after revealing that his good friend of 20
years was shot to death during an altercation with a deputy sheriff who claimed
that the friend was armed. Juror No.
7061 did not think it likely that his friend had a weapon, but said the matter
was still under investigation. Defendant
also points out that the Juror No. 7061, like Juror No. 4670, had family in law
enforcement; and that although the prosecutor was concerned that Juror No. 4670
was young and single, several other single jurors and alternates were seated.
A “comparative juror analysis
is but one form of circumstantial evidence that is relevant, but not
necessarily dispositive, on the issue of intentional discrimination.†(Lenix,
jurors may tend to show purposeful discrimination “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve.†(Miller-El
v. Dretke (2005) 545 U.S. 231, 241; Lenix,
supra, 44 Cal.4th at p. 621.)
As respondent observes, because defendant did not make a comparative
analysis in the trial court, appellate review is necessarily
circumscribed. (Lenix, supra, 44 Cal.4th
at pp. 622, 624.) “Defendants who wait
until appeal to argue comparative juror analysis must be mindful that such
evidence will be considered in view of the deference accorded the trial court’s
ultimate finding of no discriminatory intent.
[Citation.]†(
We note that the trial court ruled with regard to Juror No. 4670
before the cited voir dire responses were elicited from other single
jurors. “[T]he trial court’s finding is
reviewed on the record as it stands at the time the Wheeler/Batson ruling is
made. If the defendant believes that
subsequent events should be considered by the trial court, a renewed objection
is required to permit appellate consideration of these subsequent
developments.†(
defendant did not renew his objection to Juror No. 4670 after hearing that
other jurors were single, a comparison is not helpful.
Moreover, defendant’s analysis is inadequate. He has failed to identify any seated juror
who was young, single, and non-African-American, and who had had a negative
experience with law enforcement. Juror
No. 7061 was married and apparently not young, as he was the vice president of
a construction firm. The age and race of
the other single jurors does not appear in the record, and defendant does not
point out any responses indicating a negative experience with law enforcement. As defendant has failed to demonstrate that
the proffered reason for striking Juror No. 4670 applies equally to any similar
non-African-American seated juror, he has not met his burden to show that the
trial court erred. (See
Defendant contends that the prosecutor’s proffered reason for
dismissing Juror No. 7651 was implausible and not subjectively genuine. The critical question in determining whether the
prosecutor’s proffered reason was genuine is credibility, measured by factors
that include the prosecutor’s demeanor, which the trial court is in a better
position than the reviewing court to evaluate; we thus treat the issue as one
of fact entitled to great deference. (
Juror No. 7651 was a Hispanic woman who stated she had a close
friend who had been charged with rape and convicted under a plea bargain, and
she had spoken to his mother about the charge.
When the court asked whether Juror No. 7651 had an opinion as to whether
her friend had been treated fairly by police officers or the court, she
responded that she had no opinion because she did not know the facts. The prosecutor explained that he did not
believe the prospective juror had no opinion about such a serious charge
against a close friend. He added, “I’m
concerned that she is going to have a prejudice against the criminal justice
system as a result.â€
Defendant claims that the prosecutor’s explanation included
purported statements that Juror No. 7651 did not make. Defendant is apparently referring to defense
counsel’s complaint to the trial court that Juror No. 7651 did not say she
would be prejudiced by the incident. The
prosecutor was not required to show that the juror was in fact prejudiced or
that she admitted her prejudice. “‘The
justification need not support a challenge for cause, and even a “trivial†reason, if genuine and neutral, will
suffice.’ [Citation.]†(Lenix,
(1996) 13 Cal.4th 92, 136.)
Defendant also contends that a comparison between Juror No. 7061 and
Juror No. 7651 shows that the prosecutor’s justification should not have been
believed because Juror No. 7061 had expressed skepticism that his friend was
armed at the time he was shot by a deputy sheriff. We note once again that defendant did not ask
for a comparison in the trial court and that he points to no similarities in
the two jurors’ responses other than each had an acquaintance accused of
committing a crime. In fact, the
differences are notable. Juror No. 7061
was forthcoming with his thoughts about his friend’s death and was aware of the
facts surrounding the event. Unlike
Juror No. 7651, he did not claim to have no opinion or knowledge about a
serious incident in a close friend’s life.
Although he expressed skepticism about the presence of a weapon, Juror
No. 7061 knew his friend had been in a single-car accident, that there had been
an altercation with the police, and that the matter was under investigation.
The prosecutor was not required to believe Juror No 7651’s
“assurance that, despite an answer indicating the contrary, she would have no
problem being neutral.†(People v. Rushing (2011) 197 Cal.App.4th
801, 812.) We conclude that substantial
evidence supports a finding that the prosecutor’s concerns regarding Juror No.
7651’s sincerity was credible and genuine.
We thus defer to the trial court’s evaluation.
Defendant objected to the prosecution’s peremptory challenge to
Juror No. 6924, claiming that she was the fifth Hispanic juror to be
challenged. The trial court did not
think her name was Hispanic but asked the prosecution to provide a reason. The prosecutor explained that the subject
juror had a religious objection to judging people, and although she said could
probably render a guilty verdict, it was clear that she was reluctant. The trial court agreed and found the reason
might have even justified a challenge for cause and was thus not based upon
race or ethnicity.
name="_ftnref7" title="">[7]
Defendant contends that Wheeler
prohibits peremptory challenges based solely upon a prospective juror’s
religious beliefs. A peremptory
challenge based solely on membership in an identifiable religious group may be
unjustified. (Wheeler, supra, 22 Cal.3d
at pp. 276-277; see People v. Johnson
(1989) 47 Cal.3d 1194, 1217, fn. 3.)
However, Wheeler does not
preclude a peremptory challenge on the basis of a juror’s relevant personal
values “even though those views may be founded in the juror’s religious
beliefs.â€
(People v. Martin (1998)
64 Cal.App.4th 378, 385; see also People
v. Rushing, supra, 197
Cal.App.4th at p. 812.)
Here, substantial evidence
supports the prosecutor’s nondiscriminatory reason based upon the juror’s
religious beliefs. Juror No. 6924
expressed doubt concerning her ability to find the defendant guilty if the
prosecution met its burden of proof, explaining that she did not feel
comfortable judging others. She later
stated, “I shouldn’t be judging other people.
It’s just up to God. He’s the
only one that punishes us. Whatever you
have done, he punishes you when it’s your time.†Asked whether she had a religious objection
to rendering a guilty verdict because it meant that she was sitting in judgment
of another person, Juror No. 6924 replied, “Yes.â€
Defendant contends that despite Juror No. 6924’s uncertainty, the
trial court was required to disallow the challenge, because she stated she
could properly serve as a juror. We
disagree. The prosecutor’s reason for a
peremptory challenge need not support a challenge for cause. (Lenix,
supra, 44 Cal.4th at p. 613.) Nor must the prosecutor believe a juror’s
claim of impartiality. (People v.
Rushing, supra, 197 Cal.App.4th at p. 812.)
Moreover, the prosecutor had good reason to doubt Juror No. 6924’s
claim that she could properly serve.
Before overruling the prosecutor’s challenge for cause, the trial court
asked the juror whether she could determine the facts based on the evidence, apply
the law as instructed, and come to a conclusion. She replied, “I can do that, but I guess I
have mixed --†The court interrupted her
at that point and asked whether she could convict defendant if the people
proved their case. Again, the juror used
the expression, “I guess,†and then added, “Yes. Because you will be the one giving the
sentence. So I can just say whether I
feel he’s guilty or not guilty.†As
Juror No. 6924’s uncertainty and reluctance are apparent from her choice of
words, despite her assurance that she could render a guilty verdict, we
conclude that substantial evidence supported the court’s finding that the
prosecution sincerely believed in her reluctance to serve.
II. Substantial
evidence
Defendant contends that the evidence
was insufficient to support his conviction on a theory of aiding and abetting
and that the evidence was insufficient to support the gang finding.
The conviction and the gang enhancement finding are reviewed under
the same substantial evidence standard.
(People v. Ochoa (2009) 179
Cal.App.4th 650, 657.) We review the whole
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 -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We presume in support of the judgment the
existence of every fact the jury could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies when the
conviction rests primarily on circumstantial
evidence. [Citation.]†(Ibid.) Further, we do not reweigh the evidence or
resolve conflicts in the evidence. (
1181.) Reversal on a substantial
evidence ground “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
A.
Aiding and abetting
“[A] person aids and abets the commission of a crime when he or she,
acting with (1) knowledge of the unlawful purpose of the perpetrator; and
[with] (2) the intent or purpose of committing, encouraging, or facilitating
the commission of the offense, (3) by act or advice aids, promotes, encourages
or instigates, the commission of the crime.â€
(People v. Beeman (1984) 35
Cal.3d 547, 561.) Knowledge and intent
are rarely susceptible of direct proof and generally must be established with
reasonable inferences drawn from circumstantial evidence. (See Id.
at pp. 558-559.) It is unnecessary to
prove advance knowledge of the perpetrator’s purpose,
and intent may be formed instantaneously at the time of the commission of the
crime.
(People v. Nguyen (1993)
21 Cal.App.4th 518, 532.) Mere presence
at the scene of the crime and a failure
to take action to prevent it are not determinative factors by themselves, but
will tend to support a finding of aiding and abetting. (People
v. Durham (1969) 70 Cal.2d 171, 181.)
Other relevant factors include companionship and conduct before and
after the offense. (People v. Miranda (2011) 192 Cal.App.4th 398, 407.)
Defendant contends that the evidence of premeditation and
deliberation was weak, and thus it was probable that the jury found him guilty
as an aider and abettor. He argues that
his admissions show only that he might have been an accessory after the fact
but no more, and that other evidence showed no more than his possible presence
at the scene of the stabbing. Finally,
defendant contends that any inference that he knew of or intended to assist in
Ceja’s criminal purpose was speculative.
Defendant’s contentions lack merit.
First and foremost, we reject defendant’s assumption that the jury
convicted him only as an aider and abettor, as the evidence amply supported a
finding that defendant was a direct perpetrator who acted with premeditation
and deliberation. On the night of the
murder, defendant admitted to Canales that he had “shanked some fool,†that
Ceja was with him, and that he had dropped his knife while running away. Huerta’s blood on Ceja’s shoe supports that
admission and established that defendant’s victim was Huerta.
Defendant
committed the crime with at least one other person, as
shown by Serrano’s testimony that he saw four Hispanic men approach Huerta just
before he saw what appeared to be a fight, heard shuffling feet, and saw Huerta
hurriedly limping back to the restaurant; and by the medical examiner’s
testimony that two different blades caused Huerta’s nine injuries.
The evidence also suggested that defendant and his companions went to the
restaurant intending to call Huerta out:
the gold car arrived just before the SUV; its occupant waited for the
SUV and then made a telephone call; moments later, Huerta emerged from the
restaurant with a cell phone to his hear and walked toward the SUV; and a fight
or assault ensued. Such evidence of planning activity supported a finding of
premeditation and deliberation. (See
1125.) The
repeated stabbing or repeated attempts to stab the victim provided
circumstantial evidence of an intent to kill him. (See People
v. Avila (2009) 46 Cal.4th 680, 701-702.)
And it may reasonably be inferred from the multiple stab wounds that the
killing was premeditated. (See
In sum, substantial evidence showed that defendant and Ceja each
used a sharp object to stab or cut Huerta nine times, and such evidence gave
rise to the reasonable inference that each man harbored a premeditated intent
to kill.
Thus the evidence established much more than defendant’s mere
presence at the scene or assistance after the fact. It showed that he arrived with Ceja and
others who intended to call Huerta out, and that he directly participated in
repeatedly stabbing or attempting to stab Huerta. As defendant and Ceja each acted in concert
with the other to attack Huerta with an apparent intent to kill him, it follows
that when defendant assisted Ceja in the attack he knew of and shared Ceja’s
unlawful purpose, as required for aider and abettor liability. (See People
v. Beeman, supra, 35 Cal.3d at p.
561.) Defendant’s contention that
insufficient evidence supported a finding of guilt either as a direct
perpetrator as an aider and abettor is without merit.
A gang finding has two prongs:
(1) the crime was committed for the benefit of, at the direction of, or
in association with any criminal street gang; and (2) the crime was committed
with the specific intent to promote, further, or assist in any criminal conduct
by gang members. (§ 186.22, subd. (b)(1);
47, 61, 67-68 (Albillar).) The first prong is satisfied with substantial
evidence that the defendant committed the crime in concert with a known gang
member; and the jury may reasonably infer the second prong from substantial
evidence that the defendant intended to commit the crime with the other gang
member. (Albillar, supra, at p.
68; People v. Villalobos (2006) 145
Cal.App.4th 310, 322.)
Defendant does not deny that the ESL gang was shown to be a criminal
street gang, as defined in section 186.22, subdivision (e).
prosecution was required to prove that his motive for the attack was to benefit
his gang or that the crime did in fact, benefit his gang. He points to evidence indicating that the
crime did not benefit the gang: Huerta
was an ESL member; it was a violation of gang code to kill a member of one’s
own gang unless sanctioned by the gang; and the “hood†was upset with defendant
over the incident.
Defendant cites no authority requiring proof that a crime was
sanctioned by the gang, and he is mistaken in his assumption that a motive to
benefit the gang was required. The
statute states the requirement in the disjunctive; thus the crime must have been
committed either for the benefit of,
(2) at the direction of, or (3) in
association with a gang. (
149, 162.) The second alternative may be
established with substantial evidence of the intentional commission of the
crime in association with a known gang member.
(People v. Morales (2003) 112
Cal.App.4th 1176, 1198; see Albillar,
The evidence was sufficient here.
We have already found substantial evidence to support a finding that
defendant and Ceja committed the crime together and that defendant harbored the
intent to kill Huerta. Defendant does
not contend that the evidence was insufficient to show that he and Ceja were
both gang members or that he knew Ceja was a gang member when they committed
the crime. Indeed, fellow ESL gang
member Canales identified defendant and Ceja as members of his gang, albeit of
different cliques. Sanchez, defendant’s
girlfriend at the time of the crime and who was also acquainted with Ceja, testified
that they were both ESL gang members. As
defendant was being booked on this charge, he admitted being a member of the
Malditos clique of the ESL gang. As
defendant was being booked on a different charge a few months before Huerta’s
murder he admitted being a gang member.
Defendant could not have been ignorant of Ceja’s gang membership, as
they had been “road dogs†since at least 2002, and Ceja had sported ESL-related
tattoos since that time.
We conclude that substantial evidence supported both prongs of
section 186.22, subdivision (b)(1): (1)
defendant committed the crime in association with a criminal street gang by
attacking Huerta in concert with a known gang member; and (2) defendant
committed the crime with the specific intent to assist in criminal conduct by
Ceja, another gang member. (See
Five-year enhancement
Defendant contends that if the gang
enhancement is upheld, the five-year enhancement imposed under section 667,
subdivision (a)(1), must be stricken because section 186.22, subdivision
(b)(5), prescribes a minimum parole period of 15 years. Defendant provides no argument or explanation
for this contention and cites no authority.
Respondent ignores the issue entirely.
We find no error in imposing the
five-year enhancement, but note that the abstract of judgment fails to reflect
the trial court’s oral pronouncement of sentence. The trial court sentenced defendant to a
total term of 55 years to life in prison, comprised of 25 years to life for
murder, doubled to 50 years as a second strike, plus five years due to one of
the prior felony convictions, for a total of 55 years to life. The abstract of judgment erroneously states
that defendant was sentenced to only 25 years to life plus the five-year
enhancement, and that defendant was sentenced under section 667.61. We thus direct the trial court to issue an
amended abstract, although we reject defendant’s request that the five-year
enhancement be stricken. (See
181, 185-186.)
III. Jury
instructions
Defendant contends that the trial
court erred by instructing the jury with CALJIC Nos. 3.00 and 3.02, and that
the error lessened the prosecution’s burden of proof and interfered with
defendant’s constitutional rights to a
jury trial and due process.
A.
CALJIC No. 3.00
The trial court read CALJIC No. 3.00, defining “principals†as
follows: “Persons who are involved in
committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or
manner of participation, is equally guilty.
Principals include: 1. Those who
directly and actively commit the act constituting the crime, or 2. Those who
aid and abet the commission of the crime.â€
Defendant cites People v.
McCoy (2001) 25 Cal.4th 1111, 1117, 1122 (McCoy), which held that an aider and abettor may be found guilty of
a different crime or degree of crime than the perpetrator if the aider and
abettor and the perpetrator do not have the same mental state. For example, a less culpable mental state can
be found where an innocent agent has been used to accomplish the murder. (Id.
at pp. 1118-1121.) Based upon that
holding in McCoy, defendant objects
to the following sentence in CALJIC No. 3.00:
“Each principal, regardless of the extent or manner of participation is
equally guilty.†He contends that the
trial court should have excised the phrase “equally guilty†from the sentence
because it could lead jurors to believe that it could not find an aider and
abettor guilty of a lesser degree of murder than the actual perpetrator.
CALJIC No. 3.00 is an accurate statement of the law; however a prior
version of the instruction was found misleading in some exceptional circumstances
in light of McCoy, and thus subject
to modification or clarification upon request.
(People v. Samaniego (2009)
172 Cal.App.4th 1148, 1163-1165 (Samaniego).)
Respondent contends that defendant has forfeited the issue, as the
“failure to request clarification of an otherwise correct instruction forfeits
the claim of error for purposes of appeal.
[Citations.]†(
638.)
provided the suggested clarification by giving the Spring 2010 revision of
CALJIC No. 3.00, which modified the instruction to reflect the holding in
Samaniego. (See Use Note to CALJIC No. 3.00 (Fall 2012
Rev.); McCoy, supra, 25 Cal.4th at pp. 1117, 1122; Samaniego, supra, 172
Cal.App.4th at pp. 1163-1165.) The trial
court read, in relevant part: “When the
crime charged is murder, the aider and abettor’s guilt is determined by the
combined acts of all of the participants as well as that person’s own mental
state. If the aider and abettor’s mental
state is more culpable than that of the actual perpetrator, that person’s guilt
may be greater than that of the actual perpetrator. Similarly, the aider and abettor’s guilt may
be less than the perpetrator’s, if the aider and abettor has a less culpable
mental state.â€
Defendant’s authorities and argument relate only to the prior
version. The 2010 clarification conforms
to the holding of McCoy and defendant
does not contend that the additional language was insufficient to clarify the
“equally guilty†phrase. We conclude
that defendant forfeited any further clarification not only by failing to
request it but also by failing to provide current authorities and relevant
argument.
B.
CALJIC No. 3.02
Defendant contends that the
trial court erroneously modified CALJIC No. 3.02, which explains the elements
of the natural and probable consequences doctrine. Under the natural and probable consequence
doctrine, a defendant may be found guilty as an aider and abettor when the
crime charged was not the crime the defendant intended to aid and abet, if the
jury also finds that “the defendant’s confederate committed an offense
the offense committed by the confederate was a natural and probable consequence
of the target crime that the defendant aided and abetted.†(People
v. Prettyman (1996) 14 Cal.4th 248, 262, fn. omitted (Prettyman).)
First, defendant contends that the court transposed the target crime
and murder in the instruction, and that the error was tantamount to a directed verdict of murder. Defendant also contends that the jury should
have been required to determine whether premeditated murder, not simply murder,
was the natural and probable consequence of assault with a deadly weapon. Both contentions lack merit.
1. Transposition of target
crime and murder
The trial court read CALJIC No. 3.02 to explain the natural and
probable consequences doctrine, and concluded the instruction with the
following modification: “In order to
find the defendant guilty of the crime of murder, as charged in count 1, you
must be satisfied beyond a reasonable doubt that: (1) the crime of assault with a deadly weapon
was committed; (2) that the defendant aided and abetted that crime; (3) that a
co-principal in that crime committed the crime of assault with a deadly weapon;
and (4) the crime of assault with a deadly weapon was a natural and probable
consequence of the commission of the crime of murder.†(Italics added.)
It is reasonably foreseeable that assault with a deadly weapon will
cause the death of the person assaulted.
(See Prettyman, supra,
14 Cal.4th at pp. 262-263.) Obviously,
the court inadvertently reversed the terms in the italicized sentence,
instructing the jury to decide whether assault with a deadly weapon was a natural and probable consequence of
murder, rather than whether murder was a natural and probable consequence of assault with a deadly
weapon. Respondent concedes the error,
but contends that it was harmless. We
agree with respondent.
An erroneous instruction regarding the natural and probable
consequences doctrine is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, unless there is “‘“a
reasonable likelihood that the jury has applied the challenged instruction in a
way†that violates the Constitution.’
[Citations.]†(Prettyman, supra, 14 Cal.4th at p.
272.) There was no reasonable likelihood
here that the jury erroneously applied the instruction. The prosecutor thoroughly explained the
theory in the correct terms. In his summation,
the prosecutor argued that the jury did not have to find that defendant
intended to aid and abet a murder, adding:
“If he intended to aid and abet an assault with a deadly weapon, . . . a
knife . . . , and you conclude that under all of the circumstances a reasonable
person in his position would know that the natural and probable consequence of
that knife attack is that somebody dies, that’s all you need.†The prosecutor then continued at length
explaining the theory more thoroughly and applying the evidence to the theory.
Further, as respondent notes, the error resulted in a nonsensical
theory of murder. It instructed the jury
that it could find defendant guilty of murder if assault with a deadly weapon
was a natural and probable consequence of murder. However, the court also instructed the jury
how to determine whether one crime was the natural and probable consequence of
another, and we “presume ‘that jurors understand and follow the court’s
instructions.’ [Citation.]†(People v. Wilson (2008) 44 Cal.4th
758, 803.) As there are many ways to
commit murder without weapons, the jury would not come to the illogical
conclusion that assault with a deadly weapon is a natural or probable
consequence of murder. Thus the
instruction most certainly did not direct a murder verdict as defendant
contends. We conclude that there was no
reasonable probability that defendant would have achieved a more favorable
result if the court had not transposed the target crime of assault with a
deadly weapon and the completed crime of murder. The error was thus harmless. (See People
v. Watson, supra, 46 Cal.2d at p.
836.)
with a deadly weapon
Defendant contends that the trial
court should have instructed the jury to determine whether premeditated murder,
not just any murder, was the natural and probable consequence of
assault with a deadly weapon. He
contends that the result was that “the jury could have used the natural and
probable consequences doctrine to return a first degree murder conviction
simply because it was the degree of murder the . . . perpetrator
committed.â€
We do not review error only in the context of a single instruction,
as we “must assess the instructions as a whole, viewing the challenged
instruction in context with other instructions, in order to determine if there
was a reasonable likelihood the jury applied the challenged instruction in an
impermissible manner.†(People v.
Wilson, supra, 44 Cal.4th at p.
803.) The
jury was instructed on murder, first
degree murder, malice, deliberation and premeditation, unpremeditated second
degree murder, second degree murder resulting from an unlawful act dangerous to
life, the jury’s duty to determine the degree of murder, giving defendant the
benefit of the doubt on the degree of murder, the required unanimity on the
degree of murder, and other aiding and abetting principles. There was no suggestion in the instructions
that the jury was required to find defendant guilty of the same degree of
murder as the actual perpetrator (if it found that he was not the actual
perpetrator).
The
only authority upon which defendant relies, People
v. Woods (1992) 8 Cal.App.4th 1570 (Woods),
does not require the particular wording defendant advocates here. There, the jury was charged with deciding
whether the murder of a bystander was the natural and probable consequence of
instructions only as to first degree murder and not second degree murder or any
other lesser offense. (See
defendant in Woods, the jury was given the option of finding defendant guilty of either first or
second degree murder.
Regardless, there is no reasonable likelihood that the jury applied
the instruction as defendant suggests, and no reasonable probability that he
would have achieved a more favorable result if the instruction had been worded
as defendant now contends it should have been.
Overwhelming evidence established defendant’s guilt of premeditated
murder either as a direct perpetrator or as an aider and abettor who knew and
shared the direct perpetrator’s intent to kill.
Defendant admitted that he was one of the men who “shanked†Huerta;
Huerta was not a bystander, he was the intended victim of the attack; the
meeting of the SUV with the gold car and the telephone call suggest
premeditation; and the multiple stabbings suggest premeditation and an intent
to kill. (See
required to insert “premeditated†before murder in CALJIC No. 3.02; and that
had its omission been error, it would have been harmless. (See People
v. Watson, supra, 46 Cal.2d at p.
836.)
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an
amended abstract of judgment reflecting the oral imposition of defendant’s
sentence of 50 years to life in prison, plus five years pursuant to section
667, subdivision (a)(1), for a total term of 55 years to life, and omitting
reference to section 667.61. The court
is further directed to forward a certified copy of the amended abstract to the
Rehabilitation.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________________,
J.
CHAVEZ
We concur:
________________________________, P. J.
BOREN
________________________________, J.
ASHMANN-GERST
(1978) 22 Cal.3d 258, 276-277 (Wheeler);
Batson v. Kentucky (1986) 476 U.S.
79, 89 (Batson); and see discussion,
unless otherwise indicated.
