P. v. Vasquez

Filed 8/25/08 P. v. Vasquez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Darlene E. Schempp, Judge. Modified and affirmed.

Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

Miguel Vasquez appeals from the judgment imposed after a jury convicted him of three counts of attempted willful, deliberate and premeditated murder (Pen. Code,  664/187; undesignated section references are to that code), two counts of shooting at an occupied motor vehicle ( 246), and one count of battery ( 242), and found that in the attempted murders he personally used and discharged a firearm ( 12022.53, subds. (b), (c)), as did a principal in the offenses (id., subd. (e)(1)), and that appellant committed the five felony counts for the benefit and in furtherance of a criminal street gang ( 186.22, subd. (b)(1)).

Sentenced to terms of 60 years plus three consecutive life terms, appellant contends that (1) substantial evidence does not support the gang enhancement findings; (2) all but one of those findings, and the related findings on counts 2 and 3 that a principal used and discharged a firearm, were rendered without due process, because not charged in the information; (3) the trial court unconstitutionally refused to allow impeachment of a key witness by hearsay; (4) the sentences for discharging a firearm at a motor vehicle should have been stayed under section 654; and (5) a DNA penalty assessment was improperly imposed.

Respondent agrees with appellants contentions about the DNA penalty, section 654, and all but one of the enhancement findings that were not alleged in the information. We agree with appellants position on those matters, but not with his other contentions. We accordingly modify the judgment, and affirm it as modified.

FACTS

Viewed in accordance with the governing rules of appellate review (Peoplev. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that on August 11, 2004, Stephani McVickery, a methamphetamine addict, was pregnant by appellant and near term. Experiencing cramping, she asked appellant to take her to the hospital. Appellant arrived at McVickerys Sun Valley residence in a black car, together with his cousin Manuel Alvarez and the latters girlfriend Yesenia Ramon.

According to McVickery, Ramon drove her and the others. At an intersection with Laurel Canyon, their vehicle blocked Armando Melgozas SUV out of the left turn lane. When Melgoza asked appellants group to let him in, they looked angrily at him. After a u-turn, Melgoza drove down Laurel, where he saw appellants car stopped. It then followed him, and appellant fired a handgun at the SUV several times, shattering its rear window. Melgoza heard someone from the car yell, Vineland Boys, the name of a local gang, and rat. Melgozas brother had been killed after testifying against a Vineland member.

Appellants group drove to a location near his house, to which appellant and McVickery then walked. Alvarez and Ramon again picked them up, this time in a red car. They stopped at another Laurel Canyon intersection, where appellant and Alvarez accosted a young man at a bus stop. Appellant asked him where he was from, and then appellant and Alvarez fought with the man, who ran into a gym. Appellant and Alvarez followed him inside but soon emerged.

With McVickery wishing to go to the hospital, the group retrieved the black car. Esquivel Ruiz Chacon, with Erick Andrade as his passenger, drove by them in a truck. Appellant looked at the pair angrily, while telling his companions he had been mad-dogged. They followed the truck, stopped, and appellant began shooting.^[1] Thirteen rounds struck the truck, and bullets scarred Ruiz Chacons legs and wounded his foot. The wound kept him out of work for a year.

Before trial, Andrade identified appellant as the shooter from a photographic display. A criminalist testified that casings found at the scene had been fired by the same gun as those recovered at the earlier shooting site.

In support of the gang allegation in count 1, respondent called Los Angeles Police Detective Daniel Fournier, who had investigated the case and spent six years as a gang officer. He had been assigned to the Vineland Boys gang in Sun Valley, and had served on a task force concerning it for over two years. The detective identified appellant as a member of that gang, based on his numerous tattoos that stated and abbreviated its name. Asked what were the Vineland Boys principal activities in the summer of 2004, Detective Fournier replied they were murder and narcotics dealing, which were the primary activities of the gang for all of 2004, and before.^[2] He identified the records of three convictions involving two murders committed by members of the gang in late 2002 and early 2003, which he had investigated.

Detective Fournier testified that many gangs, including Pacoima, were enemies of Vineland Boys. Although Alvarez was a Pacoima member, he could permissibly spend time with appellant under a pass. Detective Fournier opined that shooting at rival gangs members advanced the Vineland Boys interests by protecting their turf, which he identified, in part through fear. The gangs stature also would gain from shooting at a van containing two other men who had driven by.

In his defense, appellant principally sought to impeach McVickerys testimony, by reference to her plea bargain and her methamphetamine use. She had originally been charged with three counts of attempted murder, but had pled guilty to being an accessory ( 32), and was to receive three years probation. McVickery admitted methamphetamine use for 15 years, and having been under its influence the day of the offenses.

McVickery denied use of the drug for two years before the trial, in June 2006. However, Brenda Garcia, McVickerys friend and landlord, testified McVickery had admitted using it three months before trial, when Garcia observed her in possession of drugs and a pipe. Juanita Emplayo, who also rented from Garcia, testified that in May or June of 2006 McVickery repeatedly asked her to get methamphetamine for her. In May, McVickery offered to share some crystal methamphetamine she had with Emplayo.

DISCUSSION

1. Gang Enhancements.

Appellants first contention is that the gang enhancement findings under section 186.22, subdivision (b)(1) and the dependent findings under section 12022.53, subdivision (e)(1) were not supported by substantial evidence, of the Vineland Boys having as one or more of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e) of the statute. ( 186.22, subd. (f).) Appellant does not dispute that the offenses that Detective Fournier identified as the gangs primary activities, murder and narcotics dealing, fall within the statute. ( 186.22, subds. (e)(3), (e)(4).) Rather, he contends that the detectives testimony that they were the gangs primary activities lacked foundation and was conclusional, and hence was not substantial. We disagree.

Appellant relies chiefly on In re Alexander L. (2007) 149 Cal.App.4th 605, which held that an officers testimony in response to a question about a gangs primary activities constituted insufficient evidence. But Alexander L. is clearly distinguishable. In that case, the officer did not even state or opine what the gangs primary activities were; he simply testified that he knew the gang had committed certain crimes. (Id. at pp. 611-612.) In contrast, Detective Fournier specifically stated that murder and narcotics were the Vineland Boys primary activities. (Ante, fn. 2.) Moreover, the foundational basis of his knowledge was apparent from his testimony, which described his lengthy observation of the gang, and his having investigated the two murders he identified. The detectives personal knowledge also distinguishes two other cases cited by appellant and by Alexander L.In re Nathaniel C. (1991) 228 Cal.App.3d 990, and In re Leland D. (1990) 223 Cal.App.3d 251. Substantial evidence established the Vineland Boys primary activities under section 186.22, subdivision (d). (Cf. People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)

2. Uncharged Enhancement Findings.

The jury was instructed about, and it made, gang enhancement findings ( 186.22, subd. (b)(1)) on counts 2 through 5, and enhancement findings of firearm use by a principal, under section 12022.53, subdivision (e)(1), on counts 2 and 3 (attempted murders of Ruiz Chacon and Andrade).^[3] None of these findings, however, was charged in the information, which alleged them only in count 1, the attempted murder of Melgoza. Appellant contends that the findings were made in violation of his right to due process, and of the statutory requirements that they be pled. ( 1170.1, subd. (e), 12022.53, subdivision (j).) Respondent agrees that the findings should be stricken, except for the gang enhancement on count 4, which involved the same shooting as was alleged and found to be gang-related in count 1 (attempted murder of Melgoza). Before resolving these issues, we state the circumstances by which the findings came to be made.

First, at the preliminary hearing the prosecutor and defense counsel stipulated to the gang allegation with respect to count 1, and the prosecutor stated she would not proceed on the gang allegation as to counts 2 and 3. The magistrate then struck those allegations. Second, at a pretrial hearing after the information had been filed, the trial prosecutor (a different deputy district attorney), in summarizing the sentencing range for the vehicular shooting counts (counts 4 and 5), stated, [I]t doesnt appear to me that those charges were filed with a gang allegation. If the judge allowed me to amend and file those charges  . . . with the gang allegation . . . each of those alone can carry a life sentence . . . . Hasnt been filed that way. If we go to trial Ill probably take up with the judge the issue of whether shed allow me to amend.

Respondent did not, however, move to amend any of counts 2 through 5 with a gang allegation, or a principal-firearm allegation. But after the prosecutor completed the opening phase of her final argument, the court informed counsel it had just observed that the gang enhancement was charged only as to count 1. The court continued, That doesnt make a lot of sense, having heard the testimony. [] I will allow it to be given on counts 1 through 5; however, because it was not appropriately filed . . . I will not sentence on counts 2 through 5 on that allegation if it becomes necessary. Appellants counsel responded, Thank you. You are acknowledging my objection [to the charges] as untimely.

Thereafter, the court instructed the jury on the gang charge with respect to counts 1 through 5, and the jury found the charge true on all of those counts. In addition, the jury found, on prepared verdict forms, that a principal had used and discharged a firearm ( 12022.53, subd. (e)(1)) in counts 2 and 3 allegations that had not previously been broached, except in the verdict form.^[4] At sentencing, the court did not impose any enhancements arising from the foregoing findings. Instead, the court ordered that all unimposed enhancements be, as applicable, stayed under section 654 or stricken.

As previously stated, respondent agrees with appellant that except for the gang enhancement on count 4 the findings under section 186.22 on counts 2 through 5, and under section 12022.53, subdivision (e)(1) on counts 2 and 3, should be stricken.^[5] We also agree. Whether viewed as a matter of statutorily and constitutionally required notice (as appellant argues), or as in effect a violation of section 1009s prohibition of amending to charge an offense not shown at the preliminary hearing (as respondent argues), the addition of multiple gang enhancement allegations, in the middle of closing argument and without any amendment, was improper. This error extends to count 4, the shooting at Melgozas vehicle, notwithstanding respondents contention that its constructive amendment was not prejudicial to appellants rights because an enhancement had already been charged with respect to the same shooting incident, in count 1. Finally, the firearm findings under section 12022.53, subdivision (e)(1) in counts 2 and 3 were improperly made, not only for the foregoing reasons but also because the jury was not instructed about these findings (see People v. Cummings (1993) 4 Cal.4th 1233, 1311-1315), and one of those elements, a violation of section 186.22, was not properly established as to those counts. Accordingly, the enhancement findings of which appellant complains will be stricken.

3. Exclusion of Hearsay to Impeach McVickery.

Appellant contends that his Sixth Amendment rights to present a defense, to compulsory process, and to cross-examine were infringed when the trial court excluded hearsay offered to impeach McVickery. Review of the episode reveals the claim to be unmeritorious.

At a bench conference during the direct examination of defense witness Juanita Emplayo, the prosecutor sought to exclude Emplayos proposed testimony that McVickery had said to her, shortly before the trial, that she had learned appellant intended to marry another woman, that she wouldnt let this happen, and she would say anything to keep appellant in jail. The prosecutor argued that McVickery had not been asked about this subject when she testified, and although she had been ordered to remain on call, it was not appropriate to introduce the subject at this point in the trial, with argument and instructions pending. The court excluded the testimony, stating that there was no foundation for it as impeachment, because McVickery had not been asked about the subject when she testified.

Appellants constitutional claims are overblown. The courts ruling was legally correct, because Emplayos proposed testimony was hearsay (Evid. Code,  1200), and with McVickery not having testified about the subject, Emplayos account did not qualify for admission as a prior inconsistent statement (id.,  1235). Moreover, assuming the court would have refused to recall McVickery something appellant did not request that would not have infringed appellants Sixth Amendment rights, because it does not appear that McVickerys testimony about the subject (or Emplayos) would have produced a significantly different impression of McVickerys credibility. (People v. Frye (1998) 18 Cal.4th 894, 946-947; People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) McVickery had already been impeached by a showing of her favorable arrangement with the prosecution, her admissions of methamphetamine use, her prior membership in the Pacoima gang (a rival of appellants), as well as by other facts. Appellants suggestion that Emplayos properly excluded testimony could have been the last straw, causing the jury to disbelieve all of McVickerys testimony, is speculation.

4. Sentencing Error.

Appellants final two contentions involve alleged sentencing errors. Respondent agrees with these claims, and they may be dealt with briefly.

First, appellant contends that the two five-year concurrent sentences that were imposed for the counts of shooting at an occupied vehicle (counts 4 and 5) should have been stayed, under section 654, as multiple punishment. We agree. Each of those counts was part of an indivisible course of conduct, together with the respective attempted murders that appellant committed by the same shootings. For those more serious convictions, appellant was separately, consecutively sentenced. The sentences on counts 4 and 5 should have been, and will be, stayed. (People v. Kane (1985) 165 Cal.App.3d 480, 488.)

Second, appellant contends, and respondent agrees, that the courts imposition of a $20 DNA penalty assessment violated ex post facto principles. The assessment was apparently imposed under Government Code section 76104.6, which was enacted and became effective only after appellants August 2004 offenses. For the reasons set forth in People v. Batman (2008) 159 Cal.App.4th 587, the penalty could not constitutionally be imposed on appellant. We shall strike it.

DISPOSITION

The judgment is modified by (1) striking the findings under Penal Code section 186.22 on counts 2 through 5, the findings under subdivision (e)(1) of Penal Code section 12022.53 on counts 2 and 3, and the DNA penalty assessment of $20, and (2) staying the sentences on counts 4 and 5, under Penal Code section 654. As so modified, the judgment is affirmed. The superior court shall prepare and transmit to the appropriate authorities an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] While McVickery testified that Ramon drove on each occasion, Melgoza and Ruiz Chacon each described the driver as a blonde white woman (as was McVickery), of heavy appearance.

^[2] Detective Fournier testified: The principal activities the summer of 2004 the principal activities of the gang that whole year and the year prior, a few years prior, was murder. They were responsible for quite a few murders. Their primary activity. And I believe most of the murders stemmed from that. Primary activity is narcotics. They deal narcotics. At that time they were dealing narcotics to Hawaii, Arizona, South Carolina, Florida, Texas. Pretty much well, I would say within 10 states in the United States.

^[3] The latter enhancements require that the defendant have violated section 186.22, subdivision (b). ( 12022.53, subd. (e)(1)(A).)

^[4] The jury also found, as alleged, that appellant personally used and discharged a firearm in counts 2 and 3. ( 12022.53, subds. (b), (c).) The personal discharge enhancements were imposed.

^[5] Respondent initially urges that appellant forfeited his claims by not requesting a continuance, or otherwise explicitly complaining that submission of the new allegations affected his substantial rights. (See  1009 [amendment of accusatory pleading].) We are not convinced that the objection appellant did interpose was inadequate under the circumstances, namely addition of charges during closing argument. But regardless, we shall review appellants contention on the merits, to avoid a claim of ineffective assistance of counsel. (See People v. Crittenden (1994) 9 Cal.4th 83, 146; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)