P. v. Sambrano
Filed 11/15/13 P. v. Sambrano 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.
JESSIE ESPINOZA SAMBRANO
et al.,
Defendants and Appellants.
E054725
(Super.Ct.No. INF051722)
OPINION
APPEAL
from the Superior Court of
County. James S.
Hawkins, Judge. Affirmed as modified.
Sharon
G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant Jessie Espinoza Sambrano.
Richard
A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant
Anthony Castro Lares.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Andrew Mestman and Lise S. Jacobson, Deputy
Attorneys General, for Plaintiff and Respondent.
Jessie Espinosa Sambrano and
Anthony Castro Lares, defendants and appellants, appeal from the judgment
entered after a jury found them both guilty of
(a); count 1),
name="_ftnref1" title="">[1] six counts of attempted murder (§§ 664, 187,
subd. (a); counts 3, 4, 8, 9, 10, & 11); one count of discharging a
firearm at a dwelling house (§ 246; count 5); and two counts of assault with a
firearm (§ 245, subd. (a)(2); counts 6 & 7).
true the special circumstance allegation that defendants committed the murder by
means of a drive-by shooting within the meaning of section 190.2, subdivision
(a)(21). In connection with all the
counts, the jury also made true findings on section 12022.53 firearms use allegations
and section 186.22, subdivision (b) criminal street gang allegations. The jury also found true great bodily injury enhancements
under sections 12022.7 and 12022.55 alleged in connection with counts 3, 4, 6,
and 7.
In
the penalty phase of the trial, the jury rejected death, and found life in
prison without the possibility of parole was the appropriate sentence for both
defendants. The trial court sentenced
defendants, accordingly, on count 1.
After sentencing defendants on the remaining counts and imposing the
various enhancements, the details of which we recount below in our discussion
of defendants’ claims of sentencing error, the trial court sentenced Sambrano
to serve life in prison without the possibility of parole, plus three
consecutive terms of 25 years to life, plus six consecutive terms of 15 years
to life, plus 80 years. The trial court
sentenced Lares to serve life in prison without the possibility of parole, plus
three consecutive terms of 25 years to life, plus six consecutive terms of
15 years to life, plus 90 years.
Defendants individually and
jointly raise numerous claims of error in this appeal. We recount the details, below, in our
discussion of those claims. We agree
with defendant Lares’s claim the evidence is insufficient to support the true
findings on the section 12022.7 and section 12022.55 enhancements alleged in
connection with counts 4 and 7. We also
agree with both defendants’ claim the trial court should have stayed the gang
enhancement imposed on counts 3, 4, 8, 9, 10, and 11. Except for those sentencing errors, defendants’
remaining claims lack merit. Therefore,
we will modify the judgments to reflect the corrected sentences, and as
modified, we will affirm.
What happened in this case
is not in dispute.
name="_ftnref3" title="">[3] On August 12,
2005,
defendants and codefendant Daniel Torres,
Coachella gang called Varrio Coachella Rifa 52 (VCR), drove into the territory
of a rival gang in Indio. Defendant Sambrano drove the car even though
it belonged to defendant Lares. Torres
was the front passenger, and defendant Lares was in the backseat. After driving at least twice past a group of
people gathered outside a house on Ruby Street, defendant Lares and Torres
opened fire. Defendant Lares by his own
admission fired at least 10 rounds from his .30-caliber M1 carbine rifle;
Torres fired an unknown number of shots from a .22-caliber handgun that held
five rounds. Their shots killed 19-year-old
Vanessa Torres, and seriously wounded Jacob Rodriquez and Jesus Morin, all of
whom were outside the house at the time of the shooting.
The issue at trial was why
the shooting occurred. The prosecutor’s
theory was that the shooting was gang related, specifically that defendants and
Torres were retaliating for a rival Indio gang’s graffiti in VCR territory, near
the home of defendant Sambrano’s godmother. The prosecutor presented photos that depicted
the purportedly offending graffiti, and testimony from its gang expert,
District Attorney Investigator Charles Cervello, regarding, among other things,
the significance of gang graffiti, in general, and in particular the
significance of one gang leaving their own graffiti in the territory of a
rival. In this case, the rival gang,
North Side Indio (NSI), not only left graffiti in VCR territory, but also
obliterated VCR’s own gang graffiti. Investigator
Cervello expressed the opinion that NSI’s act would be viewed by VCR as
disrespect, and in his view “everything†gang members do is about respect. Gang members do the things they do in order
to achieve respect. Investigator
Cervello testified that when a gang member is disrespected, he must retaliate
with violence. Failure to do so diminishes
the status of both the gang and the member.
In his opinion, defendants committed the crimes in this case for the
benefit of, in association with and in furtherance of VCR.
Defendants, on the other
hand, initially denied involvement in the shooting. Ultimately, they both admitted their
involvement to the investigating law enforcement officers. Defendant Lares claimed they had been looking
for a girl he knew who lived somewhere in the neighborhood when they passed by
the gathering in front of the Ruby Street house. When they drove by a second time, Torres
apparently fired at the group. Defendant
Lares testified at trial that he was hallucinating as a result of the various
substances he had ingested and thought shots had been fired at them from the group
outside the house. Defendant Lares told
the investigating police officer that he heard gunshots and fired back with the
M1 rifle he kept in the trunk of the car for protection.
his arrest, defendant Lares admitted he fired more than 10 rounds from his M1
carbine rifle. Defendant Sambrano told
law enforcement officers that he did not know his companions had guns when he
drove them to Indio to look for a girl who knew about a party.
Ecstasy, smoked marijuana, and had a few beers; he was too impaired to drive. Defendant Sambrano claimed he drove past the
house at least once, turned the car around and drove back to see if the girl
they were looking for was one of the people outside the house. He was just pulling up to the curb in front
of the house, and about to park the car when he heard seven or eight gunshots,
after which defendant Lares opened fire from the backseat. Defendant Sambrano immediately pulled away
from the curb and drove off.
The Rodriquez
family lived in the house on Ruby Street where the shooting occurred. Jacob Rodriguez and his girlfriend, Vanessa
Torres (no relation to codefendant Daniel Torres), had just walked out the
front door when the gunfire started. Vanessa
was hit by three bullets. The fatal
wound was inflicted by a high velocity, medium caliber bullet, such as a .30-caliber
bullet, that entered her lower back. Jacob
was hit twice, once in the arm and once in the torso, but the bullets were not
recovered. He spent several weeks in the
hospital recovering from his injuries, which included a shattered forearm that
required surgery. Jesus Morin was hit in
the left leg. The bullet that eventually
worked its way out of his body was .44-caliber, the same caliber as Torres’s
handgun.
Additional facts pertinent
to the issues defendants raise on appeal will be recounted below.
Defendants
both contend their convictions for attempted murder as alleged in counts 8
through 11 must be reversed because the trial court incorrectly instructed the
jury on the so-called kill zone theory of concurrent intent to kill. Under that theory,
which we discuss in more
detail below, the jury may infer from the fact a person fired a barrage of
bullets at a group of people, that the shooter had the specific intent to kill
everyone in the group. The trial court not only instructed the
jury on that principle but also instructed, over defendants’ objection, “A
person need not be aware of other victims in the kill zone.†Defendants contend the quoted statement is
incorrect and the trial court committed reversible error by including it in the
jury instructions. We disagree.
and Procedural Details
In
addition to charging defendants with the attempted murders of Jacob Rodriguez
and Jesus Morin, both of whom were actually hit by bullets fired by defendant Lares
and Torres, the district attorney charged defendants in counts 8 through 11 with
the attempted murders of four people who were not actually hit. The charges are alleged in the alternative to
identify both a specific victim, whom the evidence showed was inside the house
at the time of the shooting, and an unnamed victim but a member of the group
gathered at the house. For example, in count
8, the district attorney charged defendants with the attempted murder of “Peter,
a minor, age 11, or a member of the group gathered at 83-062 Ruby Street,
Indio, a human being.†Counts 9 through
11 included the same allegation as count 8, but identified the victims as
Eddie, Tatianna, and Dianna, respectively, all of whom along with Peter had
been inside the house at the time of the shooting, “or a member of the group
gathered at 83-062 Ruby Street, Indio, a human being.â€
By his own admission,
defendant Lares fired at least 10 rounds from his M1 rifle. The evidence showed that weapon could fire as
many as 30 rounds. Torres in turn fired
his handgun some unspecified number of times.
His weapon, according to the evidence, was capable of firing a total of
five rounds. In addition to the bullets that hit the
three named victims, the evidence also showed that four bullets from defendant Lares’s
M1 rifle actually entered the residence and a fifth bullet lodged in the
outside wall of the house. At least 10
bullets also hit a car parked in the driveway but because the police only
recovered bullet fragments it could not be determined who fired those rounds. The trial court instructed the jury according
to CALCRIM No. 600 that, “[t]he intent to kill only requires that a person
intend to kill someone, even if the person has no specific target in mind. A person may intend to kill a specific victim
or victims and at the same time intend to kill everyone in a particular zone of
harm or ‘kill zone.’
in the ‘kill zone.’
order to convict the defendant of the attempted murder of Jacob Rodriguez,
Jesus Morin, Peter, a minor age 11, Eddie, a minor age 7, Tatiana, a minor age
9 and Dianna Rodriquez, the People must prove that the defendant not only
intended to kill a person at the gathering but also either intended to kill
Jacob Rodriguez, Jesus Morin, Peter, a minor age 11, Eddie, a minor age 7,
Tatiana, a minor age 9 and Dianna Rodriquez or intended to kill everyone within
the kill zone. If you have a reasonable
doubt whether the defendant intended to [kill] Jacob Rodriguez, Jesus Morin,
Peter, a minor age 11, Eddie, a minor age 7, Tatiana, a minor age 9 and Dianna
Rodriquez or intended to kill a person at the gathering by killing everyone in
the kill zone, then you must find the defendant not guilty of the attempted
murder of Jacob Rodriguez, Jesus Morin, Peter, a minor age 11, Eddie, a minor
age 7, Tatiana, a minor age 9 and Dianna Rodriquez.â€
The
crime of attempted murder requires the specific intent to kill a human being
and a direct but ineffectual act toward accomplishing the intended
killing. (People v. Stone, supra, 46
Cal.4th at p. 136.) Therefore, a person
who fires a single shot into a crowd of people, intending to kill one of them
but not knowing or caring which one, can be convicted of attempted murder. (Stone,
at p. 134.) Moreover, a person who fires
multiple shots at a group of people can be viewed as having created a kill zone,
which constitutes circumstantial evidence of the person’s concurrent intent to
kill everyone in the group if the number of shots fired equals or exceeds the
number of people in the group. (
331 (Bland).)
The trial court presumably
took the language, “A person need not
be aware of other victims in the ‘kill zone,’†from the section entitled
“AUTHORITY†that follows CALCRIM No. 600 in the bound CALCRIM volume. That section includes the point “Killer Need
Not Be Aware of Other Victims in Kill Zone†and cites People v. Adams (2008) 169 Cal.App.4th 1009, 1023 (
(See CALCRIM No. 600 (2013) p. 369.)
The quoted phrase, although a correct statement of law, is not one about
which the trial court should instruct the jury, as we now explain.
In Adams, supra, 169
Cal.App.4th 1009, the defendant set fire to a house. She was convicted, among other things, of the
attempted murders of everyone in the house at the time she set it ablaze. On appeal, she argued that CALCRIM No. 600 is
ambiguous to the extent it permitted the jury to find her guilty of attempted
murder even if she was not aware the alleged victims were in the house. (Adams,
at pp. 1020-1021.) In rejecting her
argument, our colleagues in the Fifth District discussed Bland, in which the California Supreme Court confirmed the doctrine
of transferred intent does not apply to attempted murder, it applies only to
murder. “However, the California Supreme
Court also recognized that ‘a shooter may be convicted of multiple counts of
attempted murder on a ‘kill zone’ theory where the evidence establishes that
the shooter used lethal force designed and intended to kill everyone in an area
around the targeted victim (i.e., the ‘kill zone’) as the means of
accomplishing the killing of that victim.â€
(Adams, at p. 1021.)
The Supreme Court in
harboring a “concurrent†specific intent to kill everyone within the kill zone,
either as an end in itself, or in order to kill a primary or targeted victim. (Bland,
supra, 28 Cal.4th at pp. 330-331.) The court also stated that unlike transferred
intent, the concurrent intent theory “is not a legal doctrine requiring special
jury instructions.†(
the jury may draw in a given case: a
primary intent to kill a specific target does not rule out a concurrent intent
to kill others.†(Ibid.) In
defendant’s argument that in a kill zone situation, attempted murder liability
requires knowledge of the victims’ presence in the kill zone. “[T]he concurrent intent doctrine permits a
rational jury to infer the required express malice [or specific intent to
kill] from the facts that (1) the defendant targeted a primary victim by
intentionally creating a zone of harm, and (2) the attempted murder victims
were within that zone of harm.†(
It is not a defense that the defendant did not know the victims were
present within the zone of harm. (
In short the trial court’s
instruction to the jury in this case is correct, even though it includes the kill
zone theory; that so-called theory describes the type of circumstantial
evidence that will support an inference the defendant harbored the requisite specific
intent to kill everyone within the zone.
Because it concerns specific application of the established legal
principles pertinent to the sufficiency of circumstantial evidence, the kill
zone theory and related concepts are not ones that require special
instruction. Although instruction is not
required, it also is not error to give such an instruction.
Defendants
raise various claims challenging the sufficiency of the evidence to support the
jury’s guilty verdicts on various counts and true findings on various special
allegations. We address those claims
below.
“In addressing a challenge
to the sufficiency of the evidence supporting a conviction, the reviewing court
must examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
circumstantial evidence.
[Citation.]†(
1053.)
Convictions
Defendants challenge the
sufficiency of the evidence to support the jury’s verdicts finding them guilty of
attempted murder as alleged in counts 8 through 11, which they contend pertain
to victims inside the house. Defendants
argue there was no evidence that showed they knew anyone was in the house at
the time defendant Lares and Torres fired their respective weapons; therefore,
the evidence was insufficient to show they had the specific intent to kill
anyone in the house. Relying on the
claim they must know of a victim’s presence in order to be guilty of attempted
murder, defendants contend the evidence did not show they knew people were in
the house, and therefore they cannot be guilty of the corresponding attempted
murders. We disagree.
Defendant’s liability for
the attempted murder of people in the house turns on the evidence regarding the
manner in which defendants committed their crimes. As the Adams
court put it, the means employed to accomplish the crime are what distinguish
“attempted murder under a concurrent intent theory from ‘normal’ attempted
murder.†(Adams, supra, 169
Cal.App.4th at p. 1022; see also People
v. McCloud (2012) 211 Cal.App.4th 788 [defendant who fired 10 shots into a large
group of people, killing two, could only be charged with attempting to murder
eight, not all 46 people in the group].)
Here, the evidence presented at trial (and recounted above) shows defendant
Lares admitted to firing an assault type weapon that held 30 rounds capable of
piercing walls. Torres fired a .44-caliber
handgun that held five rounds. The
evidence shows three rounds hit Vanessa Torres, two hit Jacob, one hit Jesus,
five hit the house, and at least nine bullets hit Jacob’s car, which was parked
in the driveway. Therefore the evidence
shows defendants fired no less than 18 and as many as 35 rounds at the group
and the house.
name="_ftnref9" title="">[9]
From the fact they fired
between 18 and 35 rounds, numbers that exceed the total number of potential
victims, and they hit three people, killing one and injuring the other two, the
jury could reasonably infer defendants had the specific intent to kill everyone
inside and outside the house. The fact
that defendants missed their marks and did not actually hit everyone does not
compel us to find the evidence insufficient to support the jury’s implied
findings that defendants had the specific intent to kill everyone in the
group. The fact that the house was not
riddled with bullet holes and that some bullets hit the structure near the roof
or ceiling and therefore could not have killed anyone also does not compel a
finding that defendants lacked the necessary specific intent.
We base our conclusion, in
part, on People v.
the defendants, as they drove by in a car, fired an AK series rifle and a
shotgun more than 50 times into both units of a duplex. A short time later they drove by an apartment
complex where they used the same assault rifle to spray bullets into a specific
apartment unit. (Id. at p. 558.) In affirming
the defendants’ convictions on 11 counts of attempted murder based on the total
number of occupants present in both housing units when defendants fired their
weapons, the appellate court stated, “The fact they could not see all of their
victims did not somehow negate their express malice or intent to kill as to
those victims who were present and in harm’s way, but fortuitously were not
killed.†(Id. at p. 564.)
Moreover, this is not a
so-called kill zone case. In our view, that
phrase applies when the district attorney charges the defendants with
attempting to kill an entire group of people the defendant put in danger as a
result of the defendant’s act, of say, setting a house on fire as in
In this case, the district attorney did not charge defendants with
attempting to kill everyone present. The
district attorney charged defendants with killing one person and attempting to
kill six others. The jury could reasonably
infer from the above noted evidence that defendants intended to kill someone
with each round fired, and therefore the evidence supports the jury’s verdicts
on all the attempted murder charges.
The district attorney alleged so-called gang sentence
enhancements under section 186.22, subdivision (b) in connection with each of
the 11 crimes charged against defendants in the second amended
information. In order to prove the enhancements,
the prosecutor had to present evidence to show, among other things, that VCR is
a criminal street gang. Section 186.22
defines a criminal street gang as “any ongoing organization, association, or
group of three or more persons, whether formal or informal, having as one of
its primary activities the commission of [specified felonies including, assault
with a deadly weapon, possession of controlled substances for sale, burglary,
and auto theft], having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.†(§
186.22, subds. (f), (e)(1), (4), (11), (25).)
Defendants challenge the
sufficiency of the evidence to prove one of the primary activities of VCR is
the commission of one or more of the enumerated crimes. We conclude the evidence is sufficient to
support that implied finding.
“The phrase ‘primary
activities,’ as used in the gang statute, implies that the commission of one or
more of the statutorily enumerated crimes is one of the group’s ‘chief ’ or
‘principal’ occupations. (See Webster’s
Internat. Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the
occasional commission of those crimes by the group’s members.†(People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members
committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as
occurred in [People v.]
the gang of which defendant Gardeley had for nine years been a member was
primarily engaged in the sale of narcotics and witness intimidation, both
statutorily enumerated felonies. (See §
186.22, subd. (e)(4) & (8).) The
gang expert based his opinion on conversations he had with Gardeley and fellow
gang members, and on ‘his personal investigations of hundreds of crimes
committed by gang members,’ together with information from colleagues in his
own police department and other law enforcement agencies. [Citation.]â€
(Id. at p. 324.)
In this case, the prosecutor
presented the testimony of Investigator Cervello, an undisputed gang expert, to
prove the primary activities of VCR. The
prosecutor asked Investigator Cervello, “Okay.
What is the primary activity of Varrio Coachella Rifa criminal street
gang? By this I mean can you tell me the
activities the gang engages in consistently and repeatedly as their chief or
principle occupation?†Investigator
Cervello responded, “In my opinion, those activities include shootings, fights,
stabbings, homicides, drug sales, all the way down to stealing cars and doing
robberies.â€
Defendants contend shootings, fights,
stabbings, homicides, and drug sales are not among the crimes specified in
section 186.22, subdivision (e); only car theft and robbery are included in the
list of qualifying offenses. Moreover,
they note the trial court instructed the jury, in pertinent part, in order to
be a criminal street gang, that one or more of the primary activities must be
“the commission of murder, attempted murder, assault with a deadly weapon, robbery,
and burglary.†Of the crimes the trial
court included in the jury instruction, defendants point out only robbery is
also included in Investigator Cervello’s list of VCR’s primary activities.
Defendants contend
Investigator Cervello did not testify that robbery was a primary activity of
VCR. Instead, he recited seven
activities in response to the prosecutor asking what is the primary activity of VCR.
Because Investigator Cervello cited seven activities, defendants assert
the jury could only conclude all seven collectively constitute the primary
activity of VCR; the jury could not logically infer that each activity
individually is the primary activity.
Defendants argue, in order to draw such an inference, the jury would
have to engage in the fallacy of division, i.e., assume what is true for the
whole is also true for its individual parts.
Defendants’ argument assumes
the jury ignored the second half of the prosecutor’s question, which as quoted
above, asked Investigator Cervello to identify the “activities†in which the
gang consistently and repeatedly engages as their chief or principle
occupation. Although not evidence, the
wording of counsel’s questions may be important to understanding the witness’s
response. (People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [“Often it is
vital to consider the question to understand anything about the answer, as with answers like ‘yes’â€].) In short, when considered in the context of
the prosecutor’s entire question, it is apparent Investigator Cervello’s
response identified various primary activities of VCR, including robbery.
Defendants also contend
Investigator Cervello’s conclusory opinion regarding the primary activities of
VCR does not constitute sufficient evidence to support the jury’s implied
finding that VCR is a criminal street gang.
Defendants’ argument is based on In
re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), in which the gang expert, when asked to describe the
primary activities of the gang at issue in that case, responded, “‘I know
they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I
know they’ve been involved with auto thefts, auto/vehicle burglaries, felony
graffiti, narcotic violations.’†(
evidence on the issue, and that the expert did not offer specific details, nor
did he “directly testify that criminal activities constituted [the gang’s]
primary activities†(id. at p. 612),
and in any event the testimony lacked an adequate foundation, the court held
that the evidence was insufficient to prove the gang in that case was a
criminal street gang within the meaning of section 186.22. (Id. at
pp. 613–614.)
In this case, Investigator
Cervello, the supervisor of the district attorney’s gang unit, testified as the
prosecutor’s gang expert. He was a
member of two multi-agency gang task forces, the Coachella Valley Violent Crime
Gang Task Force of which he was a founding member, and the FBI’s Gang Impact
Team, a team he and an FBI agent formed.
He had investigated gang-related crimes, including 200 homicide
investigations, and between 800 and 900 violent crimes, most of them gang
related. Investigator Cervello testified
that he had spoken with more than 1,000 gang members, including former and
current VCR members. In addition he had
spoken to other officers about VCR. As a
result of his personal experience and talking with other officers, he knew VCR’s
signs, symbols, turf, and number of members.
That testimony not only is sufficient to establish the primary
activities of VCR, but it also reveals the basis for Investigator Cervello’s
opinion, and thereby distinguishes this case from Alexander L., supra,
149 Cal.App.4th 605.
The evidence in this case is
akin to that in People v. Martinez
(2008) 158 Cal.App.4th 1324, in which two of the three justices who had earlier
decided In re Alexander L. held that
the expert’s direct testimony regarding the primary activities of the gang,
combined with his testimony regarding his experience investigating gang crimes,
which included personal conversations with gang members and reviews of reports,
was sufficient to establish the foundation for the expert’s opinion, and thus
to prove the primary activity of the gang. (People
v. Martinez, at pp. 1329–1330.)
Injury Enhancements
Defendant
Lares contends the evidence is insufficient to support the jury’s true findings
on the great bodily injury enhancements under sections 12022.7 and 12022.55
alleged in connection with counts 3, 4, 6, and 7, which pertain respectively to
the attempted murder of and assault with a deadly weapon on Jacob Rodriguez and
Jesus Morin. We agree with respect to
counts 4 and 7 in which Jesus Morin is the alleged victim.
Both
section 12022.7 and section 12022.55 require proof a defendant personally
inflicted great bodily injury, the former in the commission of a felony, and
the latter by discharging a firearm from a motor vehicle.
was hit and wounded by a .44-caliber bullet, and that Torres fired the .44-caliber
handgun. The Attorney General
appropriately concedes the evidence does not prove Lares personally inflicted
great bodily injury on Jesus Morin.
Therefore, the evidence does not support the jury’s true findings with
respect to Lares on the section 12022.7 and section 12022.55 enhancements
alleged in connection with counts 4 and 7, in which Jesus Morin is the alleged
victim.
With
respect to Jacob Rodriguez, Lares contends the evidence is insufficient to
prove he personally inflicted the great bodily injury caused by the two bullets
that entered and exited Rodriguez’s body, one of which shattered his forearm,
because there was no evidence presented at trial to prove who fired the bullets
that caused those injuries. We disagree.
According
to the evidence presented at trial, the bullets that hit Rodriguez were not
recovered and the prosecutor did not offer any other evidence to show whether defendant
Lares or Torres or both fired the rounds that hit Rodriguez and caused him
great bodily injury. Defendant Lares
acknowledges the principle set out In re
Sergio R. (1991) 228 Cal.App.3d 588 (Sergio
R.), that “where, as here, more than one assailant discharges a firearm
into a group of people and ‘it is not possible to determine which assailant
inflicted which injuries, the defendant may be punished with a great bodily
injury enhancement if his conduct was of a nature that it could have caused the
great bodily injury suffered.’
[Citation.]†(
The
Supreme Court in People v. Modiri
(2006) 39 Cal.4th 481 (Modiri) did
not implicitly overrule Sergio R.,
contends. In fact, it did just the
opposite; the court implicitly affirmed the holding by citing it as an example
of cases in which courts have found the evidence sufficient to support a jury’s
personal infliction finding in the context of a group assault, or what is
commonly referred to as a group beating.
(Modiri, at p. 496.)
Defendant Lares
also contends even if it is “good law,†Sergio
R., supra, 228 Cal.App.3d 588, is
distinguishable because in that case both defendants fired the same type of
weapon (a 12-gauge shotgun) into a group of people, and therefore it was
impossible to determine which defendant fired the bullets that hit the victims. In this case defendant Lares contends the
prosecutor could have presented evidence other than the actual bullet to prove defendant
Lares fired the rounds that hit Jacob Rodriguez. For example, he notes the pathologist was
able to determine from the nature of the injury that a medium caliber bullet,
like the ones Lares fired from his M1 rifle, killed Vanessa Torres. Therefore, he contends similar evidence
should have been presented regarding the injuries Rodriguez sustained. In other words, defendant Lares is of the
view the prosecutor must show it was not possible to prove which bullet hit the
victim before the prosecution may rely on the group beating principle. We disagree.
When the victim of a crime dies
as a result of that crime, an autopsy generally is performed. That procedure includes forensic analysis of
the fatal wound, as in this case. That
analysis, in turn, enables an expert witness to express an opinion regarding
the cause of death. In contrast, when a
victim is seriously injured in an assault, the victim ordinarily receives
medical care from a medical practitioner, most likely a physician. When the injury consists of a bullet wound
but the bullet is not recovered, as in this case, the treating physician might not
have the training or expertise necessary to estimate the size of the bullet
that inflicted the wound. Other
evidence, such as photographs of the wound, might not have been taken, or if
taken might be inadequate to enable a physician trained in forensic medicine to
make the necessary determination or at least express an opinion regarding the
size of the bullet that caused the injury.
In our view, the defendant may rely on the absence of such evidence to
create a reasonable doubt about the truth of the great bodily injury
allegation. But if the jury returns a
true finding on allegations the defendant personally inflicted great bodily
injury, we will conclude the evidence is sufficient to support the finding if
it shows the defendant was one of two or more people who participated in an
attack on the victim in which the “defendant personally applied physical force
to the victim either (1) of a nature that, ‘by itself,’ could have caused great
bodily injury, or (2) under such circumstances that the ‘cumulative effect’ of
the force used by all participants would have caused the injury. [Citations.]â€
(Modiri, supra, 39 Cal.4th at pp. 485-486.)
Here the evidence shows
defendant Lares was one of two people who fired multiple rounds at a house and
at the group of people gathered in the front yard of the house. Jacob Rodriguez was one of the people in the
front yard and he was hit by two bullets.
That evidence supports the jury’s implied finding that defendant Lares participated
in an attack on Rodriquez by applying physical force on him of a nature that by
itself could have caused great bodily injury to Rodriguez. Accordingly we conclude the evidence is
sufficient to support the jury’s true findings with respect to defendant Lares
on the section 12022.7 and section 12022.55 enhancements on counts 3 and 6, in
which Jacob Rodriguez is the alleged victim.
3.
ADMISSIBILITY OF REBUTTAL
TESTIMONY FROM
MEXICAN MAFIA MEMBER
Defendant Sambrano contends the trial court committed
prejudicial error by allowing the prosecutor, over defendants’ various
objections, to call Rene Enriquez as a rebuttal witness. Enriquez is a former Mexican Mafia member and
the subject of a book. (See Blatchford, The
Black Hand (2008).) Defendant Sambrano
contends Enriquez’s testimony was not proper rebuttal, and that in any event it
was irrelevant, and at the very least its probative value was substantially
outweighed by its potential for prejudice.
Therefore, he contends the trial court committed prejudicial error by allowing
the prosecutor to present that testimony at trial. We disagree.
But even if we were to agree, we would conclude, as we explain below,
the error was not prejudicial.
In
his defense, defendant Sambrano testified in pertinent part that the shooting
was not gang related and was not a drive-by shooting based on his understanding
of what constitutes a drive-by shooting.
As further support for their claim the shootings were not related to
their gang memberships and affiliations, defendant Sambrano testified that when
he was first arrested in this case, a “green light†had been issued against him
but it was later recalled. Defendant Sambrano
explained that a moratorium had been called on drive-by shootings. Any gang member who violated that moratorium
was subject to a green light, which means other gang members have the “green
light†to beat up the violator. Defendant
Sambrano testified a green light had been issued and he was getting beaten up
in jail, until he asked the shot caller in jail to investigate the shooting. Defendant Sambrano explained to the shot
caller that the shooting was not a drive-by shooting. Defendant Sambrano testified he later learned
the green light had been recalled.
During a break while defendant
Sambrano was on the stand, the district attorney announced he intended to call
Rene Enriquez as a rebuttal witness. Enriquez
is a former Mexican Mafia member, serving multiple life terms in prison, and as
previously noted is the subject of a book entitled The Black Hand. Although still in prison, Enriquez disavowed
the Mexican Mafia, and has cooperated with state and federal law enforcement
agencies. He claims, among other things,
to be a certified expert on the Mexican Mafia.
In an
Evidence Code section 402 hearing, the prosecutor represented to the court Enriquez
would “talk about prison gangs and street gangs and interaction and the
control. Green lights, how green lights
happen. Drive-bys, definitions of
drive-bys, moratoriums [sic]. How he was part of moratoriums [
How Southern California gangs react under the guidelines from the
Mexican Mafia. And how they’re
controlled, what you can expect from gang members, what they participate in,
what’s directed to, and what they need to do under the guidelines from the
Mexican Mafia, and the control that’s exerted upon Southern California street
gangs.â€
Defense
counsel objected that Enriquez’s proposed testimony would be cumulative to the testimony
of the prosecutor’s gang expert, Investigator Cervello, and in any event was
not proper rebuttal evidence because defendant Sambrano only testified based on
his knowledge and experience as a member of VCR, and not as a purported expert
on criminal street gangs in general. In
addition defense counsel objected under Evidence Code section 352 that the
probative value of Enriquez’s testimony was substantially outweighed by its
potential for prejudice. The trial court
overruled defendants’ objections.
As a
result, Enriquez testified, purportedly in rebuttal to defendant Sambrano’s
testimony, about his life as a member of Arta, a so-called Hispanic gang in the
Artesia area of Los Angeles County that Enriquez joined when he was 12 years
old. In telling what effectively
amounted to his life story, Enriquez recounted what he described as the “unquantifiableâ€
number of crimes he committed as a member of that gang. Enriquez also testified that he became a
Mexican Mafia member in prison. He
recounted the history of the Mexican Mafia, his role in the upper ranks of that
prison gang, and the role the Mexican Mafia purportedly plays in controlling
all so-called sureño gangs, i.e., Hispanic gangs in Southern California. Enriquez also explained the moratorium on
drive-by shootings imposed by the Mexican Mafia, the significance of a green
light, the term used to describe punishment imposed when a member of a Hispanic
gang violates Mexican Mafia guidelines, and how a green light can be recalled
or cancelled.
Enriquez also testified as
an expert on gangs and gang culture, in general. He stated among other things gang members travelling
together in a car will know if one of them is carrying a gun because it is
status to carry a gun. He also stated
that in his experience it is not common for members of one gang to go to a
rival gang’s party unless the objective is to commit a violent act.
tagging and gang graffiti; gang challenges, such as the phrase “¿Qué honda?â€
(“What’s up?â€); and gang hand signs.
“The decision to admit rebuttal evidence rests largely
within the discretion of the trial court and will not be disturbed on appeal in
the absence of demonstrated abuse of that discretion. [Citations.]â€
(People v. Young (2005) 34
Cal.4th 1149, 1199.) “Restrictions are
imposed on rebuttal evidence (1) to ensure the presentation of evidence is
orderly and avoids confusion of the jury; (2) to prevent the prosecution from
unduly emphasizing the importance of certain evidence by introducing it at the
end of the trial; and (3) to avoid ‘unfair surprise’ to the defendant from
confrontation with crucial evidence late in the trial. [Citations.]â€
(Ibid.)
We
cannot say the trial court abused its discretion in this case, even though we
view Enriquez’s rebuttal testimony as akin to using a sledge hammer to secure a
thumb tack. Most of Enriquez’s testimony
was not relevant to any issue at trial in this case. For example, whether defendants’ conduct
constituted a drive-by shooting according to the Mexican Mafia’s definition was
irrelevant. Moreover, we agree with
defendants that Enriquez’s lengthy narrative about his street gang experience which
was 30 years out of date, and involved a different gang, located in an entirely
different geographic area than the gangs at issue in this case was irrelevant.
However, for that same
reason, i.e., because it was only marginally relevant, even if we were to
conclude the trial court abused its discretion by allowing Enriquez to testify,
we nevertheless would conclude the error was harmless in this case. Investigator Cervello addressed nearly all of
the things about which Enriquez testified, including whether it was likely
defendants would attend a party in a rival gang’s territory, whether gang
members driving around together would know who was armed, the significance of
gang graffiti, gang challenges, the moratorium on drive-by shootings, and other
details of gang conduct pertinent in this case.
Given the marginal relevance
of Enriquez’s testimony, we conclude it is not reasonably probable the jury
would have believed defendants’ explanation that they were just out looking for
some girls and the shooting was a complete accident, unrelated to their gang
participation, if Enriquez had not testified at trial. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
Defendants
contend the trial court committed error when it failed to obtain their personal
waivers of their statutory right to
be present when the jury viewed the crime scene. We disagree.
Their contrary suggestion
notwithstanding, defendants were present when the jury viewed the crime scene. They had been driven to the crime scene view
but, in accordance with the agreement of their respective attorneys, defendants
did not get out of the vehicle. Because
they were present, defendants effectively contend they had a right not only to
be present but also to get out of the vehicle and walk around with the jurors while
the jurors viewed the crime scene.
Defendants do not cite any authority to support such a claim.
Moreover,
even if we were to agree with defendants, the trial court’s failure to obtain
their personal waivers of their purported right was not prejudicial. The right to be present during a jury’s viewing
of a crime scene is statutory not constitutional. (People
v. Moon (2005) 37 Cal.4th 1, 20.)
Therefore, any purported error requires reversal only if it is
reasonably probable the jury would have reached a result more favorable to
defendants if the error had not occurred.
(Id. at p. 21.)
Defendants cannot
demonstrate prejudice. Defendants
contend the close-up view of the crime scene apparently persuaded some or all
of the jurors to find defendants guilty.
to get out of the car, they might have noticed the jurors’ reactions to the
crime scene view, and could have advised their attorneys to take a different
approach at trial. Defendants’ argument
assumes the jurors displayed visible reactions while viewing the crime scene,
that defendants could not see the jurors from their vantage point inside the
vehicle, and that their attorneys, who were walking around with the jurors,
displayed negative reactions. In short,
defendants’ prejudice claim is based entirely on speculation.
Because defendants have not
demonstrated the violation of any right, or resulting prejudice, assuming a
right exists, we conclude their claim is meritless.
Defendant
Sambrano contends the trial court committed prejudicial error by denying his motion
to disclose juror identifying information. We disagree.
The pertinent facts are that
defendant Sambrano filed a petition to disclose the identity of the jurors
after a female juror sent him a letter expressing her remorse for convicting
him of murder. In the letter, which
defendant appended as an exhibit to his motion, Juror No. 2 stated, in
pertinent part, that she fought for defendant Sambrano during deliberations, telling
the other jurors that he was not a murderer but the other jurors told her she
had to follow the law. She followed the
law, and now was having a very hard time because in her eyes he was not a
murderer; he drove the car but he did not fire the gun that killed the girl.
The trial court summarily
denied defendant Sambrano’s motion, because he failed to establish a prima
facie showing of good cause to release the juror information.
B. Analysis
After the jury’s verdict is
recorded in a criminal case, personal identifying information about the jurors
who served on the trial is sealed. (Code
Civ. Proc., § 237, subd. (a)(2).) A
defendant or the defendant’s attorney may request access to that information in
order to “communicate with jurors for the purpose of developing a motion for
new trial or any other lawful purpose.â€
(Code Civ. Proc., § 206, subd. (g).) The procedure for obtaining that information
is set out in Code of Civil Procedure section 237, subdivision (b): “Any person may petition the court for access
to these records. The petition shall be
supported by a declaration that includes facts sufficient to establish good
cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if
the petition and supporting declaration establish a prima facie showing of good
cause for the release of the personal juror identifying
information . . . .â€
On appeal, we review a trial court’s denial of a petition to disclose
juror identifying information for abuse of discretion. (People
v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
The juror’s letter to
defendant Sambrano does not establish good cause to release juror identifying
information. The letter discloses only
that the juror was persuaded to follow the law, which includes liability based
on aiding and abetting, even though she did not agree with that legal
principle. Defendant Sambrano’s showing
does not establish a basis for releasing juror identifying information. The trial court did not abuse its discretion
by denying his petition.
6.
IMPERFECT SELF-DEFENSE
INSTRUCTION
Defendant Lares contends the trial court should have
instructed the jury that an honest belief based on a psychotic delusion or
hallucination, even if objectively unreasonable, negates malice such that the
resulting homicide, or attempted homicide, is voluntary manslaughter. We disagree.
During
the discussion of jury instructions, defendant Lares’s attorney asked the trial
court to give CALCRIM No. 627 on the effect hallucination has on
premeditation. The trial court
questioned whether the instruction on imperfect self-defense should also be
linked to the hallucination instruction.
The trial court then answered its own question by citing
Cal.App.4th 1437, 1446: “‘Imperfect
self-defense cannot be based on hallucinations or delusions untethered to reality. The defense must be based on [an] honest,
albeit wrong and negligent view of reality.’â€
Lares’s attorney agreed, “You can’t hallucinate, be voluntarily
intoxicated, and then have an imperfect self-defense.â€
The
trial court instructed the jury on first degree murder based on premeditation
and deliberation and shooting from a vehicle, second degree murder, attempted
premeditated murder, voluntary manslaughter, attempted voluntary manslaughter
based on both heat of passion and imperfect self-defense, involuntary
manslaughter, self-defense, mistake of fact, and voluntary intoxication. The trial court also instructed the jury
according to CALCRIM No. 627 that the jurors could consider evidence of
hallucinations, if any, in deciding whether defendant acted with premeditation
and deliberation.
Defendant Lares contends the
trial court should have instructed the jury in this case on imperfect
self-defense based on a delusional belief in the need to defend himself. There are numerous reasons why we disagree
with defendant Lares, the first of which is that he did not request that
instruction. In fact, as noted above, his
attorney agreed that such an instruction would be incorrect. By his concurrence, defendant Lares’s
attorney effectively invited the error about which he now complains on appeal. (People
v. Wickersham (1982) 32 Cal.3d 307, 330 [“If defense counsel intentionally
caused the trial court to err, the appellant cannot be heard to complain on
appealâ€].)
Because defendant Lares did
not request the instruction, the only other basis upon which the trial court can
be faulted for failing to instruct is that it had a sua sponte duty to do
so. “In criminal cases, even absent a
request, the trial court must instruct on general principles of law relevant to
the issues raised by the evidence.
[Citation.]†(
1085, citing People v. Breverman (1998)
19 Cal.4th 142, 154.)
Defendant Lares acknowledges
the pertinent legal principle, set out
in People v. Mejia-Linares, supra, 135
Cal.App.4th 1437, that imperfect self-defense may not be based on delusion or
hallucination. However, the issue of
whether the defendant’s belief may be based on a psychotic delusion is
currently pending before the Supreme Court in People v. Elmore, review granted February 2, 2011, S188238.
In
short, the trial court correctly instructed the jury according to the
principles of law extant at the time of defendant Lares’s trial. Defendant Lares did not request any other
instruction, and agreed with the trial court’s proposed instructions. Therefore, we conclude his claim regarding
instructional error is meritless.
Both
defendants individually and jointly raise claims of sentencing error.
Eligibility Term
Both
defendants challenge the 15-year minimum parole eligibility term the trial
court imposed under section 186.22, subdivision (b)(5) on their convictions for
attempted premeditated murder. Defendant
Sambrano raises the issue with respect to all six of his attempted murder
convictions; defendant Lares raises the issue with respect to counts 8 through
11. The Attorney General concedes the
error as to defendant Sambrano but argues with respect to defendant Lares that
the evidence supports the enhancement.
The issue with respect to both defendants is the same—the prosecutor did
not allege and the jury did not find that either defendant personally used or
discharged a firearm with respect to the counts in question. Therefore, the trial court should have stayed
the minimum parole eligibility term with respect to both defendants, for
reasons we now explain.
The pertinent facts with respect to defendant Sambrano
are that the jury found him guilty of six counts of attempted premeditated murder—counts
3, 4, 8, 9, 10 and 11. On all six counts
the jury returned true findings on the special allegation under section 186.22,
subdivision (b)(5) that each of the crimes was committed for the benefit of a
criminal street gang. On counts 3 and 4
the jury also made true findings on the allegation under section 12022.53,
subdivisions (d) and (e)(1) that a principal personally used a handgun and
proximately caused great bodily injury in the commission of those crimes. On counts 8 through 11, the jury made true
findings on the special allegation under section 12022.53, subdivisions (c) and
(e)(1) that a principal personally used a handgun in the commission of the
crimes. The trial court imposed sentence
enhancements on each of the six attempted murder convictions under both section
186.22, subdivision (b)(5) and also under the pertinent section 12022.53 gun
use enhancement.
Section 12022.53, subdivision (e)(2) precludes
imposition of both the gun use and criminal street gang enhancement if the
defendant did not personally use or discharge a firearm in the commission of
the offense. (§ 12022.53, subd. (e)(2);
v. Brookfield (2009) 47 Cal.4th 583, 590.)
Because the jury found only that a principal
personally used a firearm in the commission of the crimes, Sambrano was not
subject to both the gun use enhancement and the section 186.22 criminal street
gang enhancement. Therefore, the trial
court should have stayed the section 186.22, subdivision (b)(5) minimum parole
term imposed on each of the attempted murder convictions. (People
v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238.) We will direct the judgment be amended
accordingly.
We reach the same conclusion
with respect to defendant Lares on counts 8 through 11. On those attempted murder counts the district
attorney alleged and the jury found true the allegation under section 12022.53,
subdivision (c) that a principal personally and intentionally discharged a
firearm. The trial court imposed
consecutive sentences of life, plus an enhancement under section 12022.53,
subdivision (c) of 20 years for discharge of a gun. The trial court also imposed the 15-year
minimum parole eligibility term under section 186.22, subdivision (b)(5). Because the district attorney did not allege
and the jury did not find defendant Lares personally used and/or discharged a
firearm, and instead found only that a principal personally and intentionally
used a firearm, defendant Lares was not subject to the enhancement for
participation in a criminal street gang in addition to the enhancement imposed
under section 12022.53. (
citing People v. Brookfield (2009) 47
Cal.4th 583, 590.) Therefore, the
judgment must be modified to stay imposition of the 15-year minimum parole
eligibility term set forth in section 186.22, subdivision (b)(5) on counts 8
through 11 with respect to defendant Lares.
B. Criminal Street Gang Enhancement
The jury found defendant Lares guilty on count 1 of first
degree murder in connection with the death of Vanessa Torres, and further found
true the special circumstance under section 190.2, subdivision (a)(21), that
the murder was intentional and perpetrated by the means of discharging a
firearm from a motor vehicle with the intent to inflict death. The jury also found true the criminal street
gang allegation under section 186.22, subdivision (b), and the gun use
enhancement under section 12022.53, subdivision (d), that defendant Lares
intentionally discharged a firearm and proximately caused great bodily injury
and death.
name="_ftnref15" title="">[15]
After the jury rejected the
death penalty in favor of life in prison without the possibility of parole, the
trial court sentenced defendant Lares to serve that term, plus a consecutive
indeterminate term of 25 years to life on the gun use enhancement under section
12022.53, subdivision (d), and a consecutive determinate term of 10 years on
the section 186.22, subdivision (b) criminal street gang enhancement.
Defendant Lares contends because
the trial court imposed a life term on count 1, the trial court should have
imposed the 15-year minimum parole term rather than the 10-year determinate
term on the section 186.22, subdivision (b) criminal street gang enhancement.
To support his argument, defendant
Lares cites People v. Lopez (2005) 34
Cal.4th 1002 (Lopez), in which our
state Supreme Court held a defendant who commits a gang-related violent felony
punishable by life imprisonment is not subject to the 10-year gang-benefit
enhancement under section 186.22, subdivision (b)(1)(C). Instead, the defendant is subject to a
minimum parole eligibility term of 15 years under section 186.22, subdivision
(b)(5).
title="">[16] (Lopez,
at p. 1010.)
In Lopez, the defendant was sentenced to a term of 25 years to life
for first degree murder (Lopez,
trial court sentenced defendant Lares to life without the possibility of
parole. Because defendant Lares will
never be paroled imposition of the minimum parole term would serve no purpose. The purpose of sentencing a defendant to
additional enhancements, such as the 10-year gang-benefit enhancement, is to
protect against the eventuality that the defendant’s sentence might one day be
reduced on direct appeal or habeas corpus.
(See, e.g., People v. Garnica (1994)
29 Cal.App.4th 1558, 1564 [Fourth Dist., Div. Two].)
Moreover, our Supreme Court
has twice suggested, albeit in dicta, that the minimum parole eligibility
provision was never intended to apply to persons sentenced to life without
parole. In Lopez, the Supreme Court exami
| Description | Jessie Espinosa Sambrano and Anthony Castro Lares, defendants and appellants, appeal from the judgment entered after a jury found them both guilty of first degree murder (Pen. Code, § 187, subd. (a); count 1),[1] six counts of attempted murder (§§ 664, 187, subd. (a); counts 3, 4, 8, 9, 10, & 11); one count of discharging a firearm at a dwelling house (§ 246; count 5); and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 6 & 7).[2] In connection with count 1, the jury found true the special circumstance allegation that defendants committed the murder by means of a drive-by shooting within the meaning of section 190.2, subdivision (a)(21). In connection with all the counts, the jury also made true findings on section 12022.53 firearms use allegations and section 186.22, subdivision (b) criminal street gang allegations. The jury also found true great bodily injury enhancements under sections 12022.7 and 12022.55 alleged in connection with counts 3, 4, 6, and 7. |
| Rating |
