P. .v Damian
Filed 3/2/12 P. .v Damian CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARCO ANTONIO DAMIAN,
Defendant and
Appellant.
G044308
(Super. Ct.
No. C85522)
O P I N I O
N
Appeal from a judgment of the Superior Court of Orange
County, John
Conley, Judge. Affirmed.
Diane
E. Berley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Gil
Gonzalez, Eric Swenson and Garrett Beaumont, Deputy Attorneys General, for
Plaintiff and Respondent.
This appeal follows
Marco Damian’s fourth trial for crimes arising from a deadly shooting spree he
aided and abetted back in 1991. However,
it is not so much what happened at Damian’s fourth trial as what happened at
his third trial that provides the basis for his appeal. Due to a charging error in his third trial,
Damian was convicted not only of second degree murder, but also two counts of aggravated assault he had previously been
acquitted of. On appeal to this court,
we found the error harmless because the trial court ultimately struck those two
counts. But on federal review, the Ninth
Circuit Court of Appeals determined the error warranted the reversal of
Damian’s murder conviction. Damian was
then retried and convicted for a fourth time of committing murder in the second degree. He contends his retrial was fundamentally
unfair for a variety of reasons, but we disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the
night of February 12, 1991, Westside La Habra gang members Emilia
Ceniceros, Gabriela Maldonado and Cesar Vasquez went out looking for
trouble. First, they stole a car, and
then they then picked up Damian and began driving around La Habra in search of rival gang members. Vasquez had a sawed-off shotgun with him and
said he wanted to “blast” members of the Monos gang for smashing in his car
windows on a prior occasion.
While
cruising around in Monos-claimed territory, the group pulled up to pedestrians
Angela Orozco and Alma Alvarado, who belonged to a female clique of the
Monos. Vasquez insulted the women and
asked them about their gang affiliation, and Ceniceros wanted to get out and
fight them. However, before she could do
so, Vasquez pointed his gun at them, and they ran away. Damian’s group drove on.
A few
minutes later, James Gomez heard a gunshot outside his home on nearby Pacific Avenue. When
he went outside to see what was going on, he saw gunshot damage to his
neighbor’s truck. The shot went through
the truck and penetrated a wall of Gomez’s garage.
A
short time after that, a nearby residence on Fifth Avenue was also targeted by gunfire. Then, a few minutes later, Leo Huicochea was
gunned down in an alley near the intersection of Bedford and Stearns. He suffered a single shotgun blast to the
head that left him mortally wounded.
As it
turned out, Huicochea was the boyfriend of one of Ceniceros’ distant
cousins. He belonged to a gang called Ward Street, which sometimes associated with the Monos
gang. Explaining the shooting, Ceniceros
testified Damian was driving the car when they spotted Huicochea in the
alley. Ceniceros told Vasquez she wanted
to scare Huicochea, so at Vasquez’s request, Damian pulled within about 30 feet
of him. As he did, Vasquez leaned out
the passenger window and fired the shotgun.
The shot hit Huicochea in the eye, killing him on the spot.
Afterwards,
Damian called his girlfriend and told her about it. He also confessed his involvement when the
police arrested him in connection with the shooting. He, Ceniceros and Maldonado all admitted they
drove around in the car with Vasquez shooting at rival gang members and their
houses.
As set
forth in the Ninth Circuit’s opinion, here is how the case transpired through
Damian’s first three trials: “In 1991, Damian was tried on six counts: one
count of murder in the second degree, two counts of assault with a firearm, two
counts of shooting at an inhabited dwelling, and one count of shooting at an
unoccupied vehicle. Damian was at times
a passenger in the car involved and at times the driver,
although it was agreed that he was not the person who fired the shots from the
moving vehicle. At trial, Damian was
found guilty, on an aiding and abetting or conspiracy theory, of second degree
murder, of shooting at an unoccupied vehicle, and of one count of shooting at
an inhabited dwelling. He was acquitted
of the other count of shooting at an inhabited dwelling and of one count of
assault; the other count of assault was reduced to a charge of brandishing a
deadly weapon, and he was convicted of that lesser charge. His convictions were subsequently reversed
due to the admission of an involuntary confession. [(People
v. Ceniceros, et al. (July 30, 1993, G012169 & G013105) [nonpub.
opn.].)] Damian was retried in 1994, on
the basis of a second amended information, charging only those four offenses of
which he had been convicted; this time, he was found guilty as to all
four. His conviction was again reversed,
however, due to the erroneous admission of the confession. [(People
v. Damian (June 27, 1995, G015794) [nonpub. opn.].)] In 1996, Damian was tried a third time. At the third trial, the prosecution
mistakenly used the first information, which included all six original
counts. The jury found Damian guilty of
all six. At sentencing, the trial court
discovered the problem and struck the convictions on the counts of which Damian
had previously been acquitted.” (
v. Vaughn (9th Cir. 2006)
186 Fed.Appx. 775, 777.)
Damian then once again appealed to this court. He argued his double jeopardy and due process
rights were violated by the inclusion of the charges of which he had been
acquitted, and his attorney was ineffective for failing to raise the issue of
double jeopardy at trial. We rejected these
claims for lack of prejudice. Finding
the evidence presented at trial would have been the same even without the
jeopardy-barred counts, and due to the fact the court struck the
jeopardy-barred convictions, we determined any error in including the
jeopardy-barred charges was harmless beyond a reasonable doubt. We therefore affirmed the judgment. (People
v. Damian (Feb. 16, 1999, G021073) [nonpub. opn.].)
Damian
then pursued his claims in federal court.
Although the district court denied his habeas petition, the Ninth
Circuit found Damian’s attack on his murder conviction to be well taken. The court ruled:
“The
clearly established federal law
applicable to this case is Morris v.
Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), in which the
Supreme Court held that when an unbarred offense is tried with a
jeopardy-barred charge, ‘a new trial is required only when the defendant shows
a reliable inference of prejudice.’
the defendant can demonstrate a ‘reasonable probability that he would not have
been convicted of the nonjeopardy-barred offense absent the presence of the
jeopardy-barred offense.’
(1984), for the proposition that a ‘“reasonable probability” is a probability
sufficient to undermine confidence in the outcome’
.“To obtain a conviction
of second degree murder — as distinguished from manslaughter — the state was
required to prove that Damian’s conduct was sufficient to demonstrate
malice. The state argued at Damian’s
third trial that the required element of malice could be implied from Damian’s
participation in an escalating criminal ‘rampage,’ of which the natural and
probable consequence was murder. In
doing so, it repeatedly referred to and relied heavily upon the charges of
assault. Had the jeopardy-barred charges
of assault been properly excluded from the third trial, the
state would have been precluded from making its primary argument. While it may be possible to infer implied
malice in the context of assault, an offense that requires the intent to commit
violent injury, it is much more difficult (if not impossible) to infer malice
from the offense of brandishing a deadly weapon, which entails only the drawing
or exhibiting of a deadly weapon in a ‘rude, angry, or threatening
manner.’ Compare Cal. Pen.Code §
240 (assault) with Cal. Pen.Code § 417 (brandishing a weapon). Without the jeopardy-barred counts of
assault, there is a reasonable probability, sufficient to undermine our
confidence in the outcome, that the state would not, on the record it made,
have been able to prove the necessary element of malice and that Damian would
not have been convicted of second degree murder.
“Because
the state court considered only whether the same underlying evidence would have
been admissible absent the presence of the jeopardy-barred counts and failed to
recognize the critical role of the jeopardy-barred assault charges in
supporting the finding of implied malice, we further determine that its
conclusion that there was no double jeopardy violation with respect to the
murder conviction was contrary to the reasoning and result required by federal
law. In contrast, there is not a
reasonable probability that Damian would not have been convicted of the three
lesser counts that were not ultimately set aside; therefore, we affirm the district
court’s denial of the habeas petition in part and reverse and remand only with
respect to his conviction for second degree murder.
“Although counsel’s failure to raise the
issue of double jeopardy clearly constituted deficient conduct under
ineffective assistance of counsel claim, given our reversal in part on the basis of
double jeopardy and our conclusion that Damian could not demonstrate prejudice
as to the counts on which we affirm the district court’s denial of his
petition. Accordingly, we affirm the
district court’s denial of Damian’s habeas petition in part, and reverse and
remand for issuance of the writ with respect to the conviction for second
degree murder.” (Damian v. Vaughn, supra, 186 Fed.Appx. at pp. 777-779, fns.
omitted.)
In accordance with
the Ninth Circuit’s ruling, the district court issued a writ of habeas corpus
so as to vacate Damian’s conviction for second degree murder. Over Damian’s objection, he was then retried
on the murder charge for a fourth time.
The jury convicted him of second degree murder and found true the
enhancement allegation he was vicariously armed during that offense. Thereupon, the court sentenced him to 15
years to life in prison, plus 1 year for the enhancement.
I
Damian contends he was
improperly retried for murder because the Ninth Circuit determined that retrial
was barred by double jeopardy principles. We disagree.
Although
the Ninth Circuit found reversible error in the prosecution’s reliance on the
jeopardy-barred charges of assault to prove implied malice, it did not say
anything to suggest Damian could not be retried. In fact, the case the Ninth Circuit relied on
in reversing Damian’s murder conviction, Morris
v. Mathews, supra, 475 U.S. 237 at p. 246, clearly indicates the proper
remedy for a Fifth Amendment violation resulting from the prosecution’s
reliance on a jeopardy-barred charge is
a new trial on the nonjeopardy-barred offense.
(Id. at p. 246.) Thus, the trial court did not contravene the
Ninth Circuit’s ruling by allowing Damian’s fourth trial to go forward.
II
Damian
also contends the trial court violated his right
to due process and fundamental fairness by allowing the prosecution to
introduce evidence regarding the jeopardy-barred counts. Again, we disagree.
As
explained above, Damian was acquitted in his first trial of assaulting Alvarado
and Orozco with a firearm (counts 4 and 5) and shooting at Gomez’s dwelling
(count 6).[1]
However, that does not mean evidence pertaining to those counts was
inadmissible in his latest trial. To the
contrary, the law is well established that due process does not preclude the
use of testimony relating to an alleged crime that the defendant had previously
been acquitted of committing. (
342.) Although such evidence has the
potential to prejudice the jury, its admission will be upheld where it is
circumstantially valuable in proving the defendant’s guilt and the jury is
properly instructed as to its permissible use.
(Ibid.)
Damian
does not dispute the evidence regarding the incident with Alvarado and Orozco
and the shooting of Gomez’s dwelling was relevant to prove such issues as
intent, motive, knowledge and the existence of a common plan. (Evid. Code, § 1101, subd. (b)
[allowing evidence of uncharged acts to be admitted for these purposes].) Nonetheless, he argues its admission was
error because it raised the specter he had committed the crime of assault with
a firearm. In so arguing, Damian
correctly points out that the presence of the jeopardy-barred assault counts in
his third trial was the very reason the Ninth Circuit ordered his murder
conviction to be reversed. But that’s
because the prosecution “repeatedly referred to and relied heavily upon the
state would have been precluded from making its primary argument.” (
at p. 778, italics added and fn. omitted.)
In the
present case, however, Damian was not charged with assault. And although the trial court admitted
evidence he and his companions confronted Alvarado and Orozco with a firearm, the
court and the parties treated that incident as one involving the brandishing of
a deadly weapon, not assault with a firearm.
This is important because it prevented the prosecution from relying on
the “charges of assault” to prove implied malice, which was the Ninth Circuit’s
chief criticism of the third trial.
Instead, the prosecution properly referred to the incident involving
Alvarado and Orozco as one involving the brandishing of a deadly weapon. Therefore, admitting evidence of that
incident did not run afoul of the Ninth Circuit’s ruling, nor was it unduly
prejudicial. Because the evidence was
properly characterized as a brandishing offense, and because it was
indisputably relevant to the issues of intent, motive, etc., the trial court
did not err in allowing the jury to consider it.
III
In a
related argument, Damian claims the trial court should have at least instructed
the jury he had previously been acquitted of assaulting Alvarado and Orozco and
shooting at Gomez’s dwelling. Damian’s
trial counsel did not ask the court to so instruct the jury. However, following the verdict, Damian
retained a private attorney who moved for a new trial on the basis trial
counsel was ineffective for failing to do so.
At the motion hearing, trial counsel testified he did not ask the court
to inform the jury about the prior assault charges because he did not want to
draw attention to them. Finding this to
be “a sensible tactical decision,” the court determined trial counsel was not
ineffective, and, in any event, informing the jury Damian had been acquitted of
the assault charges and shooting at Gomez’s dwelling would not have “changed
the result at all.” Therefore, the court
denied the new trial motion.
Generally,
“if a trial court permits the prosecution to present evidence that the
defendant committed one or more similar offenses for which he or she is not
charged in the current prosecution, the trial court must allow the defense to
present evidence of the defendant’s acquittal, if any, of such crimes . . .
. [Citations.]” (People
v. Mullens (2004) 119 Cal.App.4th 648, 664-665.) The purpose of allowing such evidence is to
assist the jury in assessing the significance of the other offense or
offenses. (People v. Griffin (1967) 66 Cal.2d 459, 465.)
In this case, though, it would not have done much
good to inform the jury Damian had been acquitted of assaulting Alvarado and
Orozco with a firearm because the alleged assaults occurred during the very
same confrontation from which his brandishing conviction arose. Despite the acquittals, the jury would still
have known a firearm was menacingly displayed during that confrontation, and
the jury would have been allowed to consider that evidence, along with all of
the other circumstances, in determining whether Damian was guilty of
murder. Again, it is important to
remember the confrontation was never actually described by the parties or the
court as one involving an assault with a firearm. Rather, it was properly characterized as a
brandishing offense only. Therefore, the
problem identified by the Ninth Circuit — of allowing the prosecutor to argue
implied malice based on the assault
charges — did not repeat itself.
By parity
of reasoning, reversal is not required simply because the jury was never informed
Damian had been acquitted of shooting at Gomez’s dwelling. Factually speaking, that count was virtually
inseparable from the charge relating to Gomez’s neighbor. Indeed, the same bullet that struck the
neighbor’s truck penetrated the wall of Gomez’s garage. Because Damian was convicted of shooting at
the truck, and because the evidence of that shooting was properly admitted into
evidence, it would not have helped the defense much to tell the jury Damian was
acquitted of shooting at Gomez’s dwelling.
As a matter of fact, it could have prejudiced the defense by leading the
jury to believe Damian got away with something he quite obviously had a hand
in. Trial counsel’s tactical decision
was eminently reasonable.
All
things considered, it is not reasonably probable Damian would have achieved a
more favorable result had the jury been informed he had previously been
acquitted of assaulting Alvarado and Orozco with a firearm and shooting at
Gomez’s dwelling. No grounds for
reversal have been shown.
IV
Lastly,
Damian contends it was unfair to try him for a fourth time because it enabled
the prosecution to utilize everything it learned in the prior three trials to
obtain a conviction against him. He
argues, “Most obviously, the prosecution had the benefit of 20/20 hindsight and
was able to perfect its case over the course of four trials to avoid previous
mistakes and capitalize on that knowledge to hone its strategy.” We do not believe this deprived Damian of a
fair trial.
Damian
points to two aspects of his trial as being particularly troublesome. First, unlike in his first three trials, the
prosecution presented testimony from a gang expert to explain why Damian and
his companions may have wanted to kill Huicochea. Damian asserts this unfairly allowed the
prosecution to argue implied malice “from a different angle.” But actually, the gang motive was raised in
his prior trials, albeit without expert testimony. And although the gang expert testified there
was bad blood between Damian’s gang and the Monos gang, Huicochea actually
belonged to an outfit called Ward Street.
Ward Street and Monos did have some ties at the time of the
shooting. But as the expert explained,
their relationship was not always good, and therefore he was dubious about
whether killing a Ward Street member would constitute revenge against the
Monos. Suffice it to say, the expert’s
testimony did not do much in terms of supporting the prosecution’s theory the
shooting was gang related, nor did it render the trial fundamentally unfair.
In arguing
his trial was “inequitable,” Damian also points to the testimony of prosecution
witness Emilia Ceniceros, who, due to her participation in the shooting, was
still serving a prison sentence at the time of trial. Damian correctly notes that, in exchange for
Ceniceros’ promise to testify truthfully, the prosecution informed the parole
board of her cooperation in the case.
However, by the time Ceniceros testified in the present case, she had
already been granted a release date by the board. And although Damian assails her testimony as
being inconsistent in some respects, that is hardly surprising, given that she
was asked to recall details of a shooting that happened two decades ago.
Viewing the record as a whole, we do not
believe the alleged errors cited by Damian, whether considered individually or
cumulatively, warrant a reversal of the judgment. Although we are sympathetic to the fact he
has been required to undergo multiple trials, that inconvenience was a
necessary consequence of our system of appellate review, a system which worked
to Damian’s advantage three times.
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
[1] The acquittal on the assault count
involving Alvarado is implied because the jury convicted Damian of the lesser
offense of brandishing a deadly weapon as to her. (
at p. 778, fn. 3.)
