P. v. Trejo
Filed 2/7/12 P. v. Trejo 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
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO GABRIEL TREJO et al.,
Defendants and Appellants.
B230171
(Los Angeles
County
Super. Ct.
No. VA103146)
APPEALS
from judgments of the Superior Court
of
County. Michael M.
Johnson, Judge. Affirmed.
Alan Stern,
under appointment by the Court of Appeal, for Defendant and Appellant Pedro
Gabriel Trejo.
Maureen L. Fox, under appointment
by the Court of Appeal, for Defendant and Appellant Jesus Marquez.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for
Plaintiff and Respondent.
* * * * * *
Appellants
Pedro Gabriel Trejo and Jesus Marquez were convicted following a jury trial of
conspiracy to commit murder (Pen.
Code, § 812, subd. (a)(1)).
name="_ftnref1" title="">[1] The jury found true the firearm allegations
that a principal personally used a firearm (§ 12022.53, subd. (b)),
firearm (§ 12022.53, subds. (c), (e)), and did so causing death (§
12022.53, subds. (d), (e)). The jury
also found true the criminal street gang allegation (§ 186.22, subd.
(b)(1)). The jury acquitted appellants
of first degree murder (§ 187, subd. (a)).
prison for 50 years to life, consisting of 25 years to life for conspiracy plus
25 years to life for the firearm allegation that a principal personally and
intentionally discharged a firearm causing death. The court stayed the remaining firearm and
gang enhancements pursuant to section 654.
Appellants were ordered to pay jointly and severally $7,500 in victim
restitution.
Appellants contend (1) the trial
court violated their constitutional rights to confront witnesses by admitting
the preliminary hearing testimony of
the two key witnesses; (2) the victim restitution order constituted an
unauthorized sentence in the absence of a murder conviction; and (3) the true
findings on the firearm enhancements must be reversed as inconsistent with the
jury’s verdicts acquitting appellants of murder. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2007, J.J., who was then ten years old, was with
his mother in a car on 58th Place
in Los Angeles County,
when he heard two or three gunshots. He
saw people in a small car and the leg of a person who appeared to be getting
into the car. The car drove off,
followed by a light blue SUV. When the
police arrived, they found Ivan Perez lying in a gutter. Perez died from two bullet wounds to his
head, including one “close contact shot.â€
Homicide
Detective Jonas Shipe of the Los Angeles County Sheriff’s Department
investigated the shooting and learned that Perez was a member of the Florencia
13 gang with the moniker “Blackie.†On June 21, 2007, about a month before
he was killed, Perez had been arrested along with fellow gang member Javier
Rangel. According to a statement given
to the police by Javier’s sister Claudia Rangel, which was recorded and played
at trial and the preliminary hearing, during that incident Perez had displayed
a gun at a car wash, someone fought with him, and Javier jumped into the fight.
No one from the Rangel family
testified at trial. Testimony given at
the preliminary hearing by Claudia and her mother, Marta Moreno, was read at
trial. Claudia testified at the
preliminary hearing that on the day Perez was killed several people came to her
house three different times to see Javier, including appellants and Perez. She recognized some of the people as
Florencia gang members, and most were much older than Perez and Javier. She heard appellant say that Perez or Javier
had “snitched on the gun.†At some
point, a man holding a gun in the backyard said, “I’m going to shoot both of these
fools right here.†He was told not to
shoot anyone at the house because Claudia and her baby were there. Claudia’s other brother Jonathan Rangel was
also home at the time.
During the final visit to Claudia’s
house, appellant Trejo took Perez and Javier to the backyard and told them to
fight, which they did for about four minutes.
Appellants and others then took Perez to a car where others were
waiting, and appellant Trejo placed Perez in the rear middle seat. Several cars, including a light blue SUV,
drove away. Javier remained at the
house. About 30 minutes later, Trejo returned
to the house and told Javier that Perez had been killed, though he did not say
who had done the killing. Trejo told
Javier to say that a rival gang had killed Perez if anyone asked questions
about his death.
Marta Moreno testified at the
preliminary hearing that on the day of the killing she returned home to find
several people she did not know, either in cars or leaving the back of her
house. Her children were at home with
Perez, who left with the others. Later
that day, she saw Javier with a black eye or injury to his face.
Detective Dean Camarillo of the Los
Angeles County Sheriff’s Department testified as a gang expert. He was familiar with the Florencia 13 gang,
and first met Perez and Javier in 2005 or 2006 when Perez was 12 or 13 years
old. Both boys told him they were
members of Florencia. Perez was killed
in an area claimed by Florencia.
Appellants were also Florencia members and had tattoos indicating their
gang membership. Appellant Trejo had the
gang monikers of “Demon†and “Crash,†and appellant Marquez had the monikers of
“Chuko†and “Necio.†Detective Camarillo
testified that in Hispanic gangs, members who are perceived as snitches will
generally be killed, if the killing is authorized by more senior members of the
gang. Detective Camarillo believed that
the fight between Perez and Javier was intended to settle the differences
between them arising from their accusing each other of having been the
snitch. He opined that the killing was
committed for the benefit of, in association with, and at the direction of the
Florencia 13 gang.
I.
Admission
of Preliminary Hearing Testimony
Appellants contend the trial court
violated their constitutional rights
to confront and cross-examine the witnesses against them by admitting the
preliminary hearing testimony of Claudia Rangel and her mother Marta Moreno and
Claudia’s taped police interview.
Because we find the prosecution demonstrated due diligence in attempting
to locate the witnesses, we conclude this contention lacks merit.
A.
On August 25, 2010, a month prior
to trial, the prosecutor filed a motion to allow admission of the preliminary
hearing testimony of Claudia and Moreno on the ground the witnesses were
unavailable, arguing they had both “disappeared†and that Los Angeles County
Sheriffs had “diligently searched†for them.
Appellant Trejo filed a written opposition to the motion, arguing there
was insufficient evidence to show the witnesses were unavailable. The court conducted a hearing on the motion
over three days, in which the prosecutor presented two witnesses, Detective
Shipe and Gilbert Roldan, an investigator with the Los Angeles County District
Attorney’s Office.
Detective Shipe, who was the
investigating officer on the case, testified that at the preliminary hearing in
July 2008, Claudia and Moreno were both in custody as material witnesses and
were released without bond after the hearing.
On August 1, 2008, the family was relocated to Oxnard because they were
“in fear for their lives.†At that time,
both women were “cooperative†with law enforcement. Shipe and his partner Detective Ferguson,
along with the prosecutor, decided the women did not need to be subpoenaed
until closer to trial.
Detective Ferguson had telephone
contact with Claudia through November 2008.
contacted Shipe and informed him the family had “packed up and fled in the
middle of the night.†Shipe went to the
location and spoke to the landlord, who indicated Claudia and Moreno had stated
they were going to Mexico. On December
2, 2008, Moreno’s boyfriend confirmed that the family had gone to Mexico.
locating Moreno’s boyfriend. Shipe never
contacted Mexican authorities because he did not know if Claudia or Moreno were
actually in Mexico and did not have an address or even know a possible Mexican
state in which either woman might be located.
According to Shipe, the Mexican government could not assist in locating
Claudia or Moreno unless Shipe could identify a particular Mexican state in
which the women might be living.
Shipe and Ferguson checked “all law
enforcement resources,†including “warrants, Cal Gangs, CCHRS, Department of
Children Services,†“Raps,†the Los Angeles County booking system, the
California Department of Motor Vehicles, Lexis-Nexis, and “inmate locators for
surrounding agencies,†as well as “every resource†that law enforcement
had. Ferguson also checked with
hospitals and coroner’s offices. Shipe
was unsuccessful in identifying the father of Claudia’s child, and the
probation officer of Jonathan Rangel did not provide any useful information
over the telephone.
At some point in either 2008 or
2009, Shipe checked into Claudia’s welfare card, “which was used until it was
tapped out.†The “lead dried up†and she
“quit using that card.†Shipe did not
investigate any bank accounts for the family because he assumed they did not
have any accounts “based on their lifestyle.â€
None of the Rangel family had driver’s licenses or cars registered to
them. As far as Shipe knew, none of the
Rangels were citizens or were legally in the
States.
On January 21, 2009, Shipe and
Ferguson contacted a “major crimes surveillance team,†whose job was to track
down witnesses and suspects, and provided the team with all the information
they had. At some point, the team
contacted the utility companies in an effort to locate the women. On March 12, 2009, Shipe sent an e-mail to
Detective Juan Alvarado, a member of the surveillance team, stating that
Claudia had been seen by a reliable informant with her child and an aunt at a
strip mall in Fontana. The e-mail
contained an address in Fontana and a telephone number for the aunt. In the e-mail, Shipe stated, “‘I will hook up
with her when you have time to go snatch these folks,’†by which Shipe meant
that “it would be appreciated†if the team would “go out and look for the
witnesses in that area†when the team’s schedule was “open.†Shipe explained that the team had “a heavy
caseload,†and that if the team was “hot on a murder suspect’s case, that would
take precedence over locating a witness.â€
Shipe did not go out to Fontana himself or call the aunt because he
believed that Detective Alvarado, who spoke Spanish, should be the one to
telephone the aunt.
In May 2009, the team went to four
addresses provided by Shipe and Ferguson, “conducted investigations†and
“contacted neighbors,†but was unable to locate either Claudia or Moreno. That same month, Shipe and Ferguson created a
material witness murder investigation special bulletin for Claudia, Moreno,
Javier and Jonathan Rangel. They
distributed the flier to “several law enforcement investigators out in the
Inland Empire.†The flyer was also
“passed down to Border Patrol.â€
On a monthly basis, Shipe and
Ferguson checked “all the law enforcement resources†to determine if Claudia or
Moreno were in custody; they also checked the status of Javier and Jonathan
Rangel. Using these resources, they were
unable to locate Claudia or Moreno.
Investigator Gilbert Roldan
testified that on September 10, 2010, he received a request to investigate
Claudia’s whereabouts. On September 16,
2010, Roldan spent about an hour checking various databases, including the
Justice Data Interface Communication System, Lexis, Prosecution Information
Management System, Los Angeles County booking records, outstanding warrants,
five area hospitals, 10 coroner’s offices in Los Angeles and San Bernardino
Counties, approximately four homeless shelters in the Los Angeles area, the
United States Postal Service, and the Employment Development Department. The inquires yielded no useful information.
On September 20, 2010, Roldan spent
another two to three hours checking the Los Angeles County Sheriff’s Department
booking records, wants and warrants, and Lexis databases; he also called some
hospitals, the coroner’s offices in Los Angeles and San Bernardino counties,
and some missions. He had not received
any response from the postal service.
On September 21, 2010, Roldan spent
another hour checking wants and warrants again, the booking records of the
Sheriff’s Department, and submitted a request to the Employment Development Department. On September 23, 2010, the day of his
testimony, Roldan received a request to locate Moreno. He spent about 30 minutes checking wants and
warrants, and the booking records of Los Angeles and San Bernardino counties.
The trial court found that Claudia
and Moreno were unavailable witnesses and granted the prosecutor’s motion. Over objections by all defense counsel, the
preliminary hearing testimony of Claudia and Moreno was read to the jury, and
portions of Claudia’s taped police interview were played at trial.
Under the state and federal
Constitutions, a criminal defendant has the right to confront the prosecution’s
witnesses. (U.S. Const., 6th Amend.;
Cal. Const., art. I, § 15; People v.
Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) “Although important, the constitutional right
of confrontation is not absolute.†(
499.) An exception exists when a witness
is unavailable, the witness testified against the defendant at a prior
proceeding, and the witness was subjected to cross-examination. (Evid. Code, § 1291, subd. (a)(2)
Herrera, supra, at p. 621;
722.)
A witness
is unavailable if the prosecution “has exercised reasonable diligence but has
been unable to procure his or her attendance by the court’s process.†(Evid. Code, § 240, subd. (a)(5);
622.) Due diligence “‘“‘connotes
persevering application, untiring efforts in good earnest, efforts of a
substantial character.’â€â€™â€ (
268, 292.) “Considerations relevant to
the due diligence inquiry ‘include the timeliness of the search, the importance
of the proffered testimony, and whether leads of the witness’s possible
location were competently explored.’†(
p. 500.) As long as “‘substantial good
faith’†efforts are undertaken to locate a witness, the fact that “‘additional
efforts might have been made or other lines of inquiry pursued’†does not
indicate lack of diligence because “‘[t]he law requires only reasonable
efforts, not prescient perfection.’†(
695, 706.)
“We review the trial court’s
resolution of disputed factual issues under the deferential substantial
evidence standard [citation], and independently review whether the facts
demonstrate prosecutorial good faith and due diligence.†(Herrera,
supra, 49 Cal.4th at p. 623.)
C.
We agree with the trial court that
the prosecution sufficiently established reasonable due diligence in attempting
to locate Claudia and Moreno.
name="_ftnref7" title="">[7] After the preliminary hearing, they were
relocated for their safety and protection.
Detective Shipe and his partner kept in contact with Claudia for several
months, until they were notified the family had fled in the middle of the night
to Mexico. The detectives made numerous
efforts to locate the women, including checking various databases, the records
of various state and local agencies, and “every resource†available to law
enforcement. Detectives Shipe and
Ferguson asked for assistance from a surveillance team trained to locate witnesses
and suspects. The team went to Fontana
to investigate a possible sighting of Claudia and visited four different
addresses provided by the detectives.
The detectives continued to check “law enforcement resources†on a
monthly basis, and sent a missing persons bulletin to other law enforcement
agencies, including the border patrol.
Additionally, investigator Roldan checked numerous databases and records
of local agencies on three separate occasions in a separate effort to locate
Claudia and Moreno.
Appellants concede that numerous
and sustained efforts were made to locate Claudia and her mother, but argue
that the most important leads were either unreasonably delayed or ignored. Appellants assert that the most substantial
lead was the information that Claudia was likely living in Fontana with her
aunt, and they argue that Detective Shipe should have personally pursued this
lead by immediately driving there himself to check it out. But Shipe passed the information on to the
surveillance team, and explained that he believed one of the Spanish-speaking
members of the team was better suited to contact Claudia’s aunt. Appellants complain that the surveillance
team took no action on the lead until nearly two months later. But Shipe explained that the team was also
assigned to locate murder suspects, which would be of more importance than
locating a witness.
Appellants also complain that the
prosecution did not place the witnesses in custody or immediately obtain a bond
after the preliminary hearing, and did not ask the police in Oxnard to periodically
check on the family. But as the trial
court aptly noted, due process principles would not have permitted holding
Claudia and Moreno in custody during the more than two years that elapsed
between the preliminary hearing and the trial.
(People v. Hovey (1988) 44
Cal.3d 543, 564; People v. Thomas,
risk that a witness might not appear must be weighed against the witness’s
substantial due process right not to be unreasonably incarceratedâ€].)
Moreover, after the family was
relocated to Oxnard on August 1, 2008, both women were “cooperative.†Claudia remained in contact with the
detectives for the first four months following the relocation. It was not unreasonable for the prosecution
to assume during that time that there was no need to take drastic measures to
secure the witnesses’ future attendance at trial. As soon as the prosecution learned that the
family fled during the night and may have gone to Mexico, the prosecution
immediately obtained a body attachment order for Claudia.
Furthermore, it is well-settled
that law enforcement is not required to keep “‘periodic tabs’†on witnesses
because the burdens of doing so would be prohibitive. (People v. Hovey, supra, 44 Cal.3d at p. 564; People v. Diaz, supra, 95 Cal.App.4th at p. 706.) “Moreover, it is unclear what effective and
reasonable controls the People could impose upon a witness who plans to leave
the state or simply ‘disappear,’ long before a trial date is set.†(People
v. Hovey, supra, at p. 564; People v.
Diaz, supra, at p. 706.) Thus, we
agree that the failure to hold the women in custody or conduct periodic
surveillance does not indicate that the prosecution failed to exercise due
diligence securing the witnesses’ attendance at trial.
But appellants argue that the
detectives should have taken additional steps to locate the women. For example, appellants assert that the
detectives should have contacted immigration authorities and the border patrol
much sooner than they did. But as the
trial court stated, “I think if you want to get across the border, you can do
it. Placing [restrictions or holds]
would have been helpful but not determinative.â€
Appellants assert that the detectives should have subpoenaed records
from the public welfare assistance agency.
But Detective Shipe explained that once Claudia stopped using her
welfare card, that lead dried up.
Appellants also assert that the detectives should have subpoenaed the
records of Claudia’s brothers’ parole agents for possible relative addresses,
as well as Claudia’s cell phone records.
While the detectives could have taken these extra steps, as noted above,
so long as “‘substantial good faith’†efforts are undertaken to locate a
witness, the fact that “‘additional efforts might have been made or other lines
of inquiry pursued’†does not indicate lack of diligence because “‘[t]he law
requires only reasonable efforts, not prescient perfection.’†(People
v. Diaz, supra, 95 Cal.App.4th at p. 706.)
Finally, to the extent appellants complain the detectives did not
contact Mexican authorities, Shipe explained that the Mexican government could
not offer assistance because the detectives did not know to which state in
Mexico, if any, the women had fled.
We are satisfied the prosecution
exercised reasonable diligence in attempting to locate Claudia and Moreno. Because the witnesses were unavailable,
appellants’ constitutional rights were not violated by the admission of
Claudia’s and Moreno’s preliminary hearing testimony and Claudia’s prior
recorded statement to police.
Victim
Restitution Order
The trial court ordered appellants
to pay $7,500 jointly and severally in direct victim restitution to cover
Perez’s funeral costs. Appellants
contend the restitution order constitutes an authorized sentence, reasoning
that because they were acquitted of murder and convicted only of conspiracy to
commit murder they did not cause the victim’s family to suffer any economic
loss. While the People argue that
appellants have waived this issue by failing to object below, “an objection may
be raised for the first time on appeal where it concerns an ‘unauthorized’
sentence, i.e., one that ‘could not lawfully be imposed under any circumstance
in the particular case.’†(
Cal.App.4th 164, 179, quoting People v.
Scott (1994) 9 Cal.4th 331, 354.)
The California Constitution
provides that “It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of criminal activity
shall have the right to seek and secure restitution from the persons convicted
of the crimes causing the losses they suffer.â€
(Cal. Const., art. I, § 28.)
Likewise, section 1202.4, subdivision (a)(1) provides that “a
victim of crime who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant convicted of that
crime.†Subdivision (f) of this section
further provides that “every case in which a victim has suffered economic loss
as a result of the defendant’s conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount established by
court order . . . .†(§
1202.4, subd. (f).) “‘A victim’s
liberally construed.’†(
280, 283.)
Appellants argue that their
“conspiracy to commit murder, by itself, did not lead to the incurring of
funeral expenses.†They rely on
Cal.App.4th 164, in which the court held that “in the nonprobation context, a
restitution order is not authorized where the defendant’s only relationship to
the victim’s loss is by way of a crime of which the defendant was
acquitted.†(Id. at p. 180.) But
to say that an acquittal on one count will preclude the imposition of a
restitution order under all circumstances.â€
(Ibid.)
As the People note, California has
“adopted the ‘substantial factor’ test in analyzing proximate cause.†(People
v. Holmberg (2011) 195 Cal.App.4th 1310, 1321; People v. Jones (2010) 187 Cal.App.4th 418, 425 [there is “no
reason why the various principles involved in determining proximate causation
. . . should not also apply in awarding victim
restitutionâ€].) This standard is
“‘“relatively broadâ€â€™â€ and requires “‘“only that the contribution of the
individual cause be more than negligible or theoretical.â€â€™â€ (People
v. Holmberg, supra, at p. 1321.) A
force that plays only a theoretical or infinitesimal part of causing an injury
or loss is not a substantial factor, but a minor force that causes harm or loss
is a substantial factor. (
In Holmberg, the defendant pled guilty to possession of stolen
property and was ordered to pay restitution to the owners of the property. The defendant argued that the restitution
award was improper because the victim’s losses were caused by the burglary and
theft of the property and not by his mere possession. (People
v. Holmberg, supra, 195 Cal.App.4th at p. 1818.) The reviewing court rejected this argument,
noting “there can be more than one cause of injury and that multiple causes can
combine to cause harm.†(
defendant obtained the property the day it was stolen. (Ibid.) Because he did not turn it over to the
police, the “[d]efendant’s conduct played far more than a negligible or
theoretical part in bringing about the victims’ injuries and was a substantial
factor in causing the harm they suffered.â€
(Ibid.)
We conclude appellants’ conspiracy
to commit murder was a substantial factor in causing Perez’s death. The jury was instructed that a conspiracy to
commit murder required proof of the following:
“1. Two or more persons entered into an agreement to kill unlawfully
another human being; [¶] 2. Each of the persons specifically intended
to enter into an agreement with one or more other persons for that purpose; [¶] 3.
Each of the persons to the agreement harbored express malice aforethought,
namely a specific intent to kill unlawfully another human being; and [¶] 4.
An overt act was committed in this state by one or more of the persons.†(CALJIC No. 8.69.) The jury was also instructed that the overt
acts alleged to have been committed were meeting at Javier’s house on the day
of the murder, bringing Perez to the house, questioning Perez and Javier about
their prior arrest, telling them to engage in a fistfight, and placing Perez in
the back of a car that “took him†from Javier’s house. Thus, the jury necessarily found that
appellants agreed to commit murder with the specific intent to commit murder
and that at least one conspirator committed an overt act in furtherance of the
conspiracy. Appellants suggest that in
acquitting them of murder the jury could have found that a rival gang killed
Perez. But this inference is not
plausible here. The evidence showed that
30 minutes after appellant Trejo placed Perez in a car that drove away
from the Rangel house, Trejo returned to the house and told Javier that Perez
was dead and to blame his killing on a rival gang if anyone asked about
it. Because the conspiracy to commit
murder was a substantial factor in causing Perez’s death, the restitution order
was an authorized sentence.
Firearm
Enhancements
Appellants contend the jury’s true
findings on the firearm enhancements must be reversed because such findings are
inconsistent with the jury’s murder acquittals.
We disagree.
First, the verdicts are not
necessarily inconsistent. Appellants
argue that by acquitting them of murder, the jury found that “it was not proved
that any principal to the conspiracy discharged the gun and killed Perez.†But given the evidence that there were a
number of gang members at the Rangel house immediately before Perez was killed,
including one man with a visible gun, the jury could have easily believed that
an uncharged principal discharged the gun that killed Perez. The jury’s verdicts can therefore be
interpreted as consistent. (
655 [evidence supported possibility that verdicts were consistent].)
Second, even assuming the verdicts
were inconsistent, “[i]t is well settled that, as a general rule, inherently
inconsistent verdicts are allowed to stand.â€
(People v. Lewis, supra, 25
Cal.4th at p. 656; United States v.
Powell (1984) 469 U.S. 57, 67.) The
existence of inconsistent verdicts does not imply that the jury must have been
confused. (People v. Lewis, supra, at
p. 656.) “An inconsistency may show no
more than jury lenity, compromise, or mistake, none of which undermines the
validity of a verdict.†(
The rule that inconsistent verdicts are allowed to stand “applies
equally to inconsistent enhancement findings . . . and to an
enhancement finding that is inconsistent with the verdict on a substantive
offense.†(People v. Miranda (2011) 192 Cal.App.4th 398, 405.)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
statutory references shall be to the Penal Code, unless otherwise noted.
other defendants were also charged with appellants and acquitted of
murder. Only one of these defendants was
also found guilty of conspiracy.
