P. v.
Sanchez













Filed 12/12/12 P. v. Sanchez CA2/2

>

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. MARCOS SANCHEZ, Defendant and Appellant.

B230260 (Los Angeles County Super. Ct. No. BA342179)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Lance A.
Ito, Judge. Affirmed with directions.



Allen G.
Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.





* * * * * *

Appellant
Marcos Sanchez appeals from the judgment following a trial by jury in which he
was convicted of first degree murder
in violation of Penal Code section 187, subdivision (a)href="#_ftn1" name="_ftnref1" title="">^[1] (count 1), and conspiracy to commit murder in
violation of section 182, subdivision (a) (count 2). The jury found true the firearm allegations
that a principal personally used a firearm (§ 12022.53, subds. (b), (e)),
personally and intentionally discharged a 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 trial court sentenced appellant to 50 years to life in state prison,
calculated as 25 years to life on count 1, plus a consecutive term of 25 years
to life for the firearm allegation that a principal personally and
intentionally discharged a firearm causing death. The court imposed the same sentence on count
2, which was stayed pursuant to section 654.
The court awarded appellant 998 days of actual custody credit and
ordered him to pay $6,382.17 to the California Victim Compensation and
Government Claims Board jointly and severally with his codefendant.

Appellant
contends (1) there was insufficient evidence to support his conviction for
conspiracy to commit murder, (2) his sentence was cruel and unusual in light of
his young age of 16 years and eight days, and (3) modifications must be made to
the abstract of judgment. We agree that
modifications must be made to the abstract of judgment, but otherwise affirm
the judgment.



FACTS

Prosecution Evidence

On the
evening of March 13, 2008,
Jorge G. and some friends were standing outside his apartment on 80th
Street in Los Angeles
when Jorge saw appellant, whom he recognized as a student at his high
school. Jorge had once seen appellant
fighting at school and heard him claim to be a member of the “Southgate Bay 13”
gang. Appellant approached the group
with a much shorter male, who was later identified as Pedro R. Both appellant and Pedro were wearing hooded
sweatshirts and Jorge testified they had the hoods over their heads. Jorge heard Pedro say that he and appellant
“were about to do something” and “about [to] kill somebody.”href="#_ftn2" name="_ftnref2" title="">^[2] Appellant was wearing a “doctor glove” on his
right hand, and had a gun in his waistband. Appellant held the gun “once in awhile.” When a car passed by, appellant put his hand
on the gun. Pedro’s hands were
concealed. Jorge and his friends
eventually went inside the apartment and heard a “shot.” They went back outside and saw a body lying on
the ground near Towne Avenue.

When the
police first interviewed Jorge six months later on November 6, 2008, he did not identify appellant or Pedro
from photographic six-packs. Jorge did
identify appellant at the preliminary hearing on November 13, 2008.

Angie R.,
who was standing outside with Jorge on the night of the murder, identified
appellant at a field show up later that night.
She also identified appellant from a photographic six-pack, and
identified him in court. Angie R.
confirmed that appellant was wearing a plastic “doctor’s” glove. She admitted testifying at the preliminary
hearing that she saw appellant and Pedro walking up and down the street,
looking at the victim’s house. While she
could not recall having testified at the preliminary hearing that appellant
said he was “waiting for the other guy to come out so he could shoot him,” in
her recorded police interview played for the jury she stated that appellant
“started talking to me, you know, about that he was going to shoot him . . . .”

Crystal C.,
who was also standing outside on the night of the href="http://www.fearnotlaw.com/">murder, identified appellant in court,
and said she had “seen him around” and at school. Her cousin Danny and appellant were friends,
and she and Pedro were friends. On the
night of the murder, Crystal C. saw appellant and Pedro walking on 80th
Street. She
identified appellant and Pedro in photographic six-packs shown to her by the
police. With respect to appellant’s
photograph, Crystal C. wrote, “I seen him on the day they kill that man. That he was taking a log [>sic] time to come outside to shot [>sic] him.” While she testified at trial that what she
had written was not true, she admitted telling the police that appellant said
he was going to shoot the victim, “that guy from the corner,” and it was taking
a long time for him to come outside.

The victim,
18-year-old Ricardo Rivera, was a member of the Kansas
Street gang.
On the night of the murder, his sister Kelley Rivera was standing
outside her house with a friend and Ricardo.
She saw appellant and Pedro passing in front of her house “over and
over.” She identified appellant in court
and testified that she had seen him the day before the murder. She recognized Pedro because he had fought with
her brother two days earlier. At some
point, appellant and Pedro stopped walking and stood next to a tree near the
corner of the street. Ricardo was
leaning against a brick wall when “out of nowhere,” he got shot in the
head. Kelley identified appellant in a
field show up later that night and was “sure” it was him. While she could not identify appellant in a
photographic six-pack shown to her some time after the murder, she did identify
appellant at the preliminary hearing.
She also identified Pedro from a photographic six-pack.

Ricardo’s autopsy results showed
that he suffered a “through and through” gunshot to his head. According to the medical examiner, a bullet
shot from a short distance has a better chance of exiting the victim’s body. The medical examiner opined that a .357
Magnum could propel a bullet through someone’s head if the range of fire was
not far away.

The day after the murder the police
searched Pedro’s house and recovered a

.357-caliber revolver in the bedroom, a yellow notebook with gang writing on
it, and a latex glove in the waste basket.
The gun had a six-round capacity, and had five live rounds and one
expended round. Appellant lived next
door to Pedro. His house was also
searched and the police recovered a shoebox with gang writing on it and
numerous papers with writing consistent with the Southgate Bay 13 gang.

Los Angeles Police Department
Detective Eric Crosson, who responded to the crime scene, was at the field show
up involving Angie R. and confirmed that she identified appellant. Detective Crosson visited the crime scene
numerous times. Approximately four days
after the murder, he found a latex glove on the sidewalk of the 7900 block of Towne
Avenue. The
glove he found was smaller than the one found in Pedro’s bedroom.

Detective Crosson taped some of the
interviews he conducted during his investigation of the shooting. In general, he did not inform witnesses they
were being taped. When he interviewed
Crystal C., she stated “multiple times” that appellant said what she had
written, i.e., that it was taking the victim a long time to come outside to
shoot him.

When appellant was arrested, he did
not have any tattoos on his hand. He
later had “Bay” tattooed on his hand.

Detective Derek O’Malley of the
Southgate Police Department testified as a gang expert. He was familiar with the Southgate Bay 13
gang, which had approximately 14 members and was a rival of the Kansas
Street gang.
Detective O’Malley knew Pedro, whose moniker was “Demon.” Pedro had admitted to the detective that he
was a member of the Southgate Bay 13 gang.
The notebook recovered from Pedro’s house was filled with gang writing
and gang monikers. According to
Detective O’Malley, “Bay” stands for “Bad Ass Youngsters,” or “Barrio Ardmore
Youngsters.” Detective O’Malley opined
that Pedro was an active member of the Southgate Bay 13 gang, and that
appellant was also a member of the gang.
Detective O’Malley testified that the “y” in the “Bay” tattoo on
appellant’s hand was written in a manner associated with the gang. According to Detective O’Malley, it was not
uncommon for a gang member to let other people know that he was planning to
commit a crime. Based on a hypothetical using
the facts of the case, Detective O’Malley opined that Ricardo’s murder was
committed for the benefit of, at the direction of, and in association with a href="http://www.mcmillanlaw.com/">criminal street gang.



Defense Case

Mitchell
Eisen, who has a PhD in psychology and is an expert on eyewitness memory,
testified about the limitations of human memory and the factors that tend to
lead to inaccurate witness identification and testimony.

Marie Rodriguez, a defense
investigator, interviewed Crystal C. on April 29, 2009. Crystal C. told her that she could not
identify appellant because he had been wearing a hooded sweatshirt, and that
Jorge informed her of appellant’s identity.

According
to a DNA expert, the gun recovered by the police contained the DNA of at least
four different people, and the presence of appellant’s and Pedro’s DNA was
inconclusive. The latex glove found at
Pedro’s house contained DNA from at least three sources, including appellant
and Pedro. And the latex glove found near
the crime scene did not contain DNA from appellant or Pedro.



Stipulations

The parties entered into several
stipulations, including that if Brenda German had been called as a witness she
would have testified to the following:
“Brenda was present on March 13, 2008, in the driveway where Ricardo
Rivera was shot. Prior to the shooting,
Brenda saw two males walking back and forth on 80th Street. One male was taller than the other. The taller one was wearing a hooded
sweatshirt and kept the hood pulled up, preventing Brenda from seeing his
face. [¶] The two males went to the corner of Towne
Avenue and 80th Street and crouched down.
It looked like the shorter male was trying to aim. Brenda and Ricardo went inside the house for
about 30 minutes, and then went back outside for about 30 minutes, at which
time he was shot. [¶] Ricardo was leaning against the wall when he
was shot. Brenda was on his left, and
Kelley Rivera was in front of him.
Brenda heard a single gunshot, and Ricardo fell to the ground. Brenda did not see who shot or where the shot
came from.”



>DISCUSSION

>I.
Substantial
Evidence Supports Appellant’s Conviction for Conspiracy to Commit Murder.

Appellant contends that his
conviction for conspiracy to commit murder must be reversed because there was
insufficient evidence to prove that he had agreed with anyone to commit
murder. We disagree.

When determining whether the
evidence is sufficient to sustain a conviction, “our role on appeal is a
limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We review the entire record in the light most
favorable to the judgment to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. (Ibid.) We presume in support of the judgment the
existence of every fact that a trier of fact could reasonably deduce from the
evidence. This standard applies whether
direct or circumstantial evidence is involved.
(People v. Thompson (2010) 49
Cal.4th 79, 113.) “[I]t is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends.” (People
v. Maury (2003) 30 Cal.4th 342, 403.)
Even when there is a significant amount of countervailing evidence, the
testimony of a single witness can be sufficient to uphold a conviction. (People
v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
So long as the circumstances reasonably justify the trier of fact’s
finding, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant reversal of the
judgment. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears
that “‘upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’
[Citation.]” (>People v. Bolin (1998) 18 Cal.4th 297,
331.)

A conspiracy is an agreement by two
or more persons to commit an offense with the specific intent to commit the
elements of the offense, coupled with an overt act by one or more of the
conspirators in furtherance of the conspiracy.
(§§ 182, subd. (a)(1), 184; People
v. Jurado (2006) 38 Cal.4th 72, 130; People
v. Russo (2001) 25 Cal.4th 1124, 1131.)
“To prove an agreement, it is not necessary to establish the parties met
and expressly agreed” to commit the target offense. (People
v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
Rather, “‘a criminal conspiracy may be shown by direct or circumstantial
evidence that the parties positively or tacitly came to a mutual understanding
to accomplish the act and unlawful design.’”
(Ibid., quoting >People v. Brown (1969) 272 Cal.App.2d
623, 628.) Thus, “‘a conspiracy may be
inferred from the conduct, relationship, interests, and activities of the
alleged conspirators before and during the alleged conspiracy. [Citations.]’” (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1135; People v. Herrera (2000) 83 Cal.App.4th 46, 64.)

We reject
appellant’s argument that there was insufficient evidence to show that he
agreed with Pedro to commit murder. The
evidence established that on the night of the murder appellant and Pedro were
seen together, walking back and forth in front of Ricardo’s house several
times. Pedro had been in a fight with
Ricardo a few days prior to the murder.
Appellant and Pedro were members of the same gang, and Ricardo was a
member of a rival gang. Appellant and
Pedro talked with the group of people standing outside on 80th Street before
the murder, and either appellant or Pedro told them they were planning to shoot
someone and that it was taking this person a long time to come outside. Appellant was wearing a latex glove on his
right hand, and kept touching a gun that was in his waistband. At some point, appellant and Pedro walked to
the corner of Towne Avenue and 80th Street and crouched down. It appeared that Pedro was trying to take
aim. The police recovered a .357-caliber
gun and a latex glove from Pedro’s house.
One expended cartridge was found in the gun. Ricardo was shot by a single bullet to the
head that may have been fired with a .357 Magnum. Moreover, in the gang expert’s opinion, the
crime was gang-related. Based on these
circumstances, the jury could easily infer that appellant and Pedro had a
mutual agreement and intent to kill Ricardo.
Accordingly, appellant’s conviction for conspiracy to commit murder was
supported by substantial evidence.



>II.
Appellant’s
Sentence is Not Cruel and Unusual

Appellant, who
was 16 years and eight days at the time of the shooting, argues that his
sentence of 50 years to life constitutes cruel and unusual punishment in
violation of the federal and state Constitutions. Specifically, he argues that “his sentence of
50 years to life coupled with the fact that, had he been just 8 days younger,
his case could not have been directly filed in adult court, and he may well
have been treated as a juvenile, shocks the conscience, is grossly
disproportionate to his crime, and violated the Eighth Amendment to the United
States Constitution and the prohibition against cruel or unusual punishment
under article I, section 17 of the California Constitution.” We disagree.

A sentence is cruel or unusual
under California law if it is so disproportionate to the crime as to shock the
conscience and offend fundamental notions
of dignity. (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Norman (2003) 109 Cal.App.4th 221, 230.) Similarly, a sentence constitutes cruel and
unusual punishment under the Eighth Amendment if it is grossly disproportionate
to the severity of the crime. (>Ewing v. California (2003) 538 U.S. 11,
20; Rummel v. Estelle (1980) 445 U.S.
263, 271.) Under both standards, the
court examines the nature of the offense and the defendant, the punishment for
more serious offenses within the jurisdiction, and the punishment for similar
offenses in other jurisdictions. (>Solem v. Helm (1983) 463 U.S. 277,
290–291; In re Lynch, supra, at
pp. 425, 431, 436.) Any one of these
three factors can be sufficient to demonstrate that a particular punishment is
cruel and unusual. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38.) Here, appellant discusses only the first
prong.

In arguing that his sentence is
disproportionate to his culpability, appellant primarily relies on >People v. Mendez (2010) 188 Cal.App.4th
47 (Mendez), in which this court held
that a sentence of 84 years to life imposed on a defendant who was 16 when he
committed several nonhomicide crimes was unconstitutional as constituting a de
facto sentence of life without parole (LWOP), which provided no meaningful opportunity
for release. In reaching our conclusion,
we relied on the United States Supreme Court’s recent decision in >Graham v. Florida (2010) 560 U.S. ___
[130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham),
in which a divided Court held that a sentence of LWOP for any juvenile offender
who did not commit a homicide was categorically cruel and unusual under the
Eighth Amendment. But, as the People
note, appellant’s reliance on Mendez
and Graham is misplaced because,
unlike the defendants in those cases, appellant committed homicide.href="#_ftn3" name="_ftnref3" title="">^[3]

We are
satisfied that under the circumstances here, appellant’s murder sentence was
justified. The evidence showed that
prior to the murder, appellant and fellow gang member Pedro bragged to some
people in the neighborhood that they were going to shoot someone, and appellant
was holding a gun while wearing a latex glove on his hand. Appellant and Pedro laid in wait, walking
back and forth in front of Ricardo’s house until he came out. They crouched down and either appellant or
Pedro shot Ricardo point blank in the head with one bullet while Ricardo was
standing with his sister and a friend.
Appellant’s actions demonstrated a complete lack of mercy and disregard
for human life, and a lack of concern whether others might also be shot. Appellant attempts to minimize the seriousness
of his conduct by claiming there was no evidence or jury finding that he was
the actual shooter. He also points to
his limited criminal record, which consists of a single offense of vehicle
theft committed when he was 15 years old for which he received home probation
and jurisdiction was terminated ten months later. Based on the facts here, we find that
appellant’s youth and minor criminal record were “substantially outweighed by
the seriousness of the crime[s] and the circumstances surrounding [their]
commission . . . .” (>People v. Gonzales (2001) 87 Cal.App.4th
1, 17.)

As appellant acknowledges,
successful challenges to sentences on the grounds of cruel and unusual
punishment are rare. (>In re Nuñez (2009) 173 Cal.App.4th 709,
735; Rummel v. Estelle, supra, 445
U.S. at p. 272.) Indeed, as the People
note, appellant’s sentence compares favorably with those in other cases
rejecting cruel and unusual punishment claims involving serious crimes
committed by young defendants with limited prior criminal records. (See, e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282–285 [upholding
LWOP sentence for 17-year-old convicted of two counts of first degree murder]; >People v. Em (2009) 171 Cal.App.4th 964,
972–977 [upholding sentence of 50 years to life for 15-year-old gang member who
committed murder during a robbery and whose prior record was not extensive]; >People v. Demirdjian (2006) 144
Cal.App.4th 10, 14–16 [15-year-old’s sentence of two consecutive terms of 25
years to life for two special circumstance murders did not violate state or
federal Constitutions]; People v.
Villegas (2001) 92 Cal.App.4th 1217, 1230–1231 [upholding sentence of 40
years to life for 17-year-old gang member who committed attempted murder with a
firearm]; People v. Gonzales, supra,
87 Cal.App.4th at p. 17 [upholding sentence of 50 years to life for 14-year-old
gang member who committed murder].) This
is not one of the rare cases in which the sentence imposed should be reduced as
cruel and unusual.



>III.
Appellant
Should be Awarded One Additional Day of Actual Custody Credit

Appellant contends, and the People
concede, that he is entitled to one additional day of actual custody credit.

Pursuant to section 2900.5,
subdivision (a), a defendant convicted of a felony is entitled to credit
against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5, subd. (a); >People v. Smith (1989) 211 Cal.App.3d
523, 526.) Generally, an appellant may
not appeal an error in the calculation of presentence custody credit unless the
claim is first presented in the trial court, which did not occur here. (§ 1237.1.)
However, the Court of Appeal may address a presentence custody credit
issue if other claims are also raised on appeal. (People
v. Mendez (1999) 19 Cal.4th 1084, 1100–1101; People v. Acosta (1996) 48 Cal.App.4th 411, 420–421.)

As a general rule, the time
credited includes the date of arrest, the date of sentencing, and every day in
between. (People v. Smith, supra, 211 Cal.App.3d at p. 526 [“Since
section 2900.5 speaks in terms of ‘days’ instead of ‘hours,’ it is presumed the
Legislature intended to treat any partial day as a whole day”].) The probation report states that appellant
was arrested on March 17, 2008 and he was sentenced on December 10,
2010. This time span is 999 days.
Because the trial court only awarded appellant 998 days of custody credit, the
abstract of judgment must be amended to reflect 999 days of actual href="http://www.mcmillanlaw.com/">custody credit.



IV.
The
Abstract of Judgment Must be Corrected Regarding the Payment of Restitution

Appellant contends, and the People
concede, that the abstract of judgment must be corrected because it does not
reflect that he and Pedro are jointly and severally liable to pay $6,382.17 in
restitution, and it improperly states that such restitution is to be paid to
the “victim(s),” rather than to the State Victim Compensation Board.

At the sentencing hearing, the
trial court ordered that appellant and Pedro are jointly and severally liable
to pay restitution, and that such restitution should be paid to the “Victim
Compensation Government Claims Board.”
Because the oral pronouncement of judgment by the sentencing judge is
the judicial act which constitutes the rendition of judgment, it controls over
any conflicting written court documents. (People
v. Mesa (1975) 14 Cal.3d 466, 471; People
v. Hartsell (1973) 34 Cal.App.3d 8, 13; People
v. Hong (1998) 64 Cal.App.4th 1071, 1075.)
If an abstract of judgment fails to reflect the judgment pronounced by
the trial court, the error is clerical and the abstract can be corrected at any
time to make it reflect the true facts.
(People v. Mitchell (2001) 26
Cal.4th 181, 185; People v. Williams
(1992) 10 Cal.App.4th 827, 830, fn. 3; People
v. Jack (1989) 213 Cal.App.3d 913, 915; People
v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Mesa, supra, at p.
471; In re Candelario (1970) 3 Cal.3d
702, 705.) Accordingly, the abstract of
judgment must be corrected here.

DISPOSITION

The trial court is directed to
amend the abstract of judgment to reflect 999 days of actual custody credit and
to reflect that appellant is jointly and severally liable for $6,382.17 in
restitution to be paid to the California Victim Compensation and Government
Claims Board, and to forward the amended abstract to the Department of
Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



_____________________, J.

DOI TODD

We concur:



____________________________,
P. J.

BOREN



____________________________,
J.

ASHMANN-GERST