P. v. Valenzo
Filed 12/10/12 P. v. Valenzo CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAHZIEL
VALENZO,
Defendant and Appellant.
B234081
(Los Angeles County
Super. Ct. No. KA090612)
APPEAL
from an order of the Superior Court of the County of
George Genesta, Judge. Affirmed in part,
and remanded with instructions.
Laura
S. Kelly, 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, Senior Assistant Attorney General, Blythe J. Leszkay
and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant
Jahziel Valenzo (defendant) guilty of first
degree murder and further found true, inter alia, a gang enhancement
allegation. On appeal, defendant raises
four challenges to the jury’s true finding on the gang allegation. Defendant also contends that the trial court
abused its discretion when it refused to allow defense counsel to argue that
defendant acted out of fear when he shot the victim. And defendant contends that the trial court
erred in imposing a 10-year sentence enhancement pursuant to Penal Code section
186.22, subdivision (b)(1)(C).
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We
hold that substantial evidence supported the true finding on the gang
allegation and that the trial court did not err in allowing the gang expert to
testify concerning the gang allegation.
We further hold that the trial court did not abuse its discretion when
it did not permit defense counsel to argue that defendant acted out of
fear. And we agree with the parties that
the trial court erred when it imposed a 10-year sentence enhancement under
section 186.22, subdivision (b)(1)(C).
FACTUAL BACKGROUND
A. The
Shooting of Preciado
Defendant,
who went by the nickname Smash, was the father of Jessica Perez’s son. In the two years following her son’s birth,
Jessica and defendant had broken off their relationship twice. After the second break-up in March 2010, she
began dating the victim, Ruben Preciado, who was her co-worker. She dated him for a month or less. Jessica sensed that there was hostility
between Preciado and defendant, and while she was dating Preciado she heard him
say “bad things about defendant.†After
dating Preciado for about a month, Jessica decided that she wanted her son to
live together with his father and mother, so she resumed her relationship with
defendant, who moved into her mother’s home to live with Jessica and their
son.
On the evening
of May 10, 2010, defendant arrived at Jessica’s home accompanied by Jonathan
Perez, also known as Chato. Perez was
dating Jessica’s sister, and the two couples “were hanging out at [Jessica’s]
mom’s [house]†that evening. Later that
evening, defendant and Perez told Jessica they were going out in front of the
house, but at around 8:30 p.m., she noticed they had left that location.
Los
Angeles Sheriff’s Detective Ralph Hernandez was one of the homicide
investigators assigned to investigate the shooting of Preciado. He interviewed Mauricio Miramontes
2010. During the interview, Miramontes
provided the following information about the shooting of Preciado: On the day of the shooting, defendant and
Michael Marquez approached Miramontes at school. Defendant was upset with Preciado and he
asked Miramontes to arrange a fight between defendant and Preciado to settle
their differences. Defendant told
Miramontes that, regardless of the outcome of the fight, Miramontes should not
talk to the police about it. Defendant
and Miramontes agreed that the fight would take place early that evening at a
nursery. But after the meeting, defendant
called Miramontes, changed the location of the fight to a bridge, and changed
the time of the fight to 8:00 p.m.
Defendant called Miramontes again at 8:00 p.m. and postponed the fight
until 8:30 p.m. when it would be dark, and he agreed with Miramontes to meet
Preciado at the “projects,†not the bridge.
That
evening, Miramontes was at a carport in front of the agreed upon location of
the fight
other males. He saw defendant, Perez,
and Marquez arrive at the carport on bicycles.
Defendant asked Miramontes where Preciado was located. Defendant then walked into the apartment
complex, while Perez and Marquez waited outside near Miramontes and the other males. According to Miramontes, Marquez looked
nervous and he had a gun in his waistband.
At that point, Miramontes realized “this was going to go bad.†Miramontes heard three gunshots and saw a
“muzzle flash coming from the backyard.â€
Miramontes ran toward his house.
Preciado, who had been shot three times—twice in the back and once in
his chest—was found lying face up in the rear yard of the apartment complex on
North Rockvale and died at the scene.
At
about 9:30 p.m. that night, Marquez arrived at Jessica’s house and appeared
nervous, pale, and sweaty. When Jessica
asked Marquez where defendant was, he said they were being chased by Azusa 13
gang members. Because she had lived in
Azusa her entire life, Jessica knew Azusa 13 was a gang in Azusa. Jessica and her mother went to their car and
drove around their neighborhood looking for defendant. When they could not locate defendant, they
went home and Jessica tried to call defendant on his cell phone. She contacted defendant around 10:00 p.m. and
told him to come home. Defendant arrived
at Jessica’s home about 10 minutes later, and when they went to her room, she
saw defendant place a gun wrapped in a black shirt or sock under a drawer. Jessica told defendant to remove the gun from
her house, and defendant said he would remove the gun the next morning.
When
Jessica informed defendant that Marquez had told her that defendant was being
chased, defendant denied being with Marquez that evening. Jessica and defendant then fell asleep, but
Jessica was awakened by defendant talking on his cell phone to a female. She waited for him to finish the call and
then asked him why he denied during the conversation that he was in Azusa. She further inquired why the female called
crying, saying “was it you?†and why defendant told the female it “wasn’t
him.†Jessica asked defendant what he
had done, and defendant told her Preciado “got beat up,†but denied that he was
involved. Defendant explained it was
Perez who shot Preciado three times.
When Jessica told defendant it could not have been Perez who shot
Preciado, defendant “confessed†to her that he shot Preciado.
Jessica
was shocked by defendant’s confession and she told him to leave her house. She left the room and turned on the
television to determine if there were any news reports about the shooting. Seeing no news reports, she returned to her
room and again asked defendant to leave.
Defendant replied that he would leave in the morning.
The
next morning defendant left for his school and Jessica left for her school a
short time later, thinking Preciado was in the hospital. But at school, Jessica heard that someone had
died at the projects, causing her to call Preciado’s father, who told her
Preciado had been killed. She next
called her mother and asked her to come to school and pick her up. She told her mother that someone had killed
Preciado. But when Jessica’s mother
asked her who killed Preciado, Jessica said she did not know.
Jessica
went home and fell asleep. Her sister
awakened her and told her the police were at the door. The officers told Jessica they were looking
for defendant, and she told them she was unsure of his whereabouts, but thought
he was at school. The officers took
Jessica and her sister outside and searched the house. Following the search, Jessica went inside the
house with Detective Hernandez. She
informed the detective that defendant had been there the night before and left
a gun under a drawer in her room.
Detective Hernandez recovered the gun
City
of Azusa Police Detective Robert Landeros worked on an interagency task force
that conducted drug and gang investigations.
Based on his past experience as a patrol deputy working a gang detail in
Azusa and his current assignment, he was familiar with a juvenile tagging crew
known as BSO, or Bud Smokers Only, based in the City of Glendora.
street gang in Azusa known as FCK, or Faded Children’s Krew or Flore’s
Children’s Killers. FCK evolved from a
tagging crew into a street gang. Based
on his experience, Deputy Landeros explained that FCK engaged in primary
criminal activities such as felony vandalism, assault with a deadly weapon,
shootings, and attempted murder. He was
also aware of a FCK gang member being involved in drug sales.
According
to Detective Landeros, there was a rivalry between FCK and Azusa 13, a street
gang that controlled the streets of Azusa since the 1950s and 1960s. FCK was the only Hispanic gang to rival Azusa
13 in the City of Azusa. Azusa 13
engaged in the same types of crimes as FCK.
Gangs like FCK and Azusa 13 claimed territory, and those two gangs were
in conflict over territory within Azusa.
As a result of the rivalry, one of FCK’s leaders, Benjamin Castro, was
murdered and there was an attempted murder of Detective Landeros and his
partner.
FCK gang members
had tattoos and used graffiti or symbols to signify their gang membership. Detective Landeros had seen different types
of FCK “tagging†throughout Azusa and primarily in the area of 6th Street and
Rockvale, an area claimed by FCK. FCK
had approximately 30 members or associates.
Defendant
was a documented member of FCK whose nickname or moniker was Smash. He associated with FCK “shotcaller†named
Robelio Veliz, or Dust, who did not associate with “low-tier†FCK members.
Detective
Landeros was very familiar with Perez and Marquez. Perez was a “high-tiered†leader in FCK and
Marquez was associated with another gang.
Based on the
facts of this case, Detective Landeros opined that the shooting of Preciado was
“a gang crime.†According to Detective
Landeros, the location of the shooting—6th Street and Rockvale—was within
territory FCK claimed and the shooting at that location was a direct challenge
to Azusa 13, which also claimed that territory.
That Preciado, the shooting victim, belonged to the rival BSO crew that
also tagged that territory, further demonstrated that the shooting was gang
motivated. Moreover, although Preciado
had dated defendant’s girlfriend Jessica, such a potential personal motivation
for the shooting would not alter the conclusion that it was gang-related
because gang conflicts arise from “different root causes.†Preciado’s prior relationship with Jessica
was an overt sign of disrespect toward defendant which, if defendant did
nothing about it, would cause defendant to lose credibility within FCK and
potentially to suffer retaliation by other members of the gang.
Detective
Landeros confirmed that FCK gang member Miguel Gonzales, or Demon, was
convicted of attempted murder in 2009.
He also confirmed that FCK gang member Benjamin Castro had a juvenile
petition for assault on a police officer sustained in 2009.
PROCEDURAL POSTURE
In
an information, the Los Angeles County District Attorney charged defendant
of section 187, subdivision (a). The District
Attorney alleged that, in the commission of the murder, defendant: personally discharged a firearm causing great
bodily injury and death within the meaning of section 12022.53, subdivision
(d); personally discharged a firearm within the meaning of section 12022.53,
subdivision (c); and personally used a firearm within the meaning of section
12022.53, subdivision (b). The District
attorney further alleged that the murder was committed for the benefit of, at
the direction of, and in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct by gang
members.
Defendant
pleaded not guilty and denied the special allegations. Following trial, the jury found defendant
guilty of first degree murder and found true each of the special allegations.
The
trial court sentenced defendant to an aggregate term of 60 years to life
comprised of a 25 years to life sentence for the murder charge, an additional,
consecutive 25 years to life sentence based on the discharge of a firearm
causing great bodily injury and death enhancement under section 12022.53,
subdivision (d), and a consecutive 10-year sentence enhancement based on the
gang allegation. The trial court also imposed
but stayed sentence enhancements based on the firearm allegations under section
12022.53, subdivisions (b) and (c).
DISCUSSION
A. Sufficiency
of Evidence In Support of True Finding on Gang Allegation
Defendant
contends that there was insufficient evidence to support (i) the jury’s finding
that the shooting of Preciado was gang-related and (ii) the jury’s finding as
to the “primary activities†element of section 186.22. According to defendant, the gang expert’s
opinion was not based on facts showing the shooting was gang-related and the
expert failed to testify as to FCK’s primary criminal activities.
“‘In
reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine
the whole record in the light most favorable to the judgment to determine
whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.â€
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence and to
special circumstance allegations.
[Citation.] “[I]f the
circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding.â€
[Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility.’ ([People
v.] Guerra [(2006)]
37 Cal.4th [1067,] 1129.)†(
1186, 1215.)
Section
186.22, subdivision (b)(1) requires a two-prong showing to prove a gang
allegation: “[A]ny person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang,
with the specific intent to promote, further, or assist in any criminal conduct
by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of
which he or she has been convicted, be punished as follows: . . . .†Defendant contends that the prosecution failed
to satisfy either prong of the required statutory showing.
Here,
there was sufficient evidence to satisfy the first prong of section 186.22,
subdivision (b)(1), i.e., defendant committed the shooting in association with
a criminal street gang. Defendant was a
documented FCK gang member who was known to associate with a “high-tier†FCK
gang member, Veliz. Preciado had dated
defendant’s girlfriend and the mother of his son in the recent past, conduct
which the gang expert characterized as disrespectful toward defendant. Accompanied by Marquez, defendant arranged a
“fight,†presumably a fist fight, with Preciado—a BSO tagging crew
member—agreeing to both a time and location.
In doing so, he cautioned Miramontes not to discuss the plans for the
fight with the police, regardless of the outcome of the fight. But, as the agreed-upon time for the fight
drew near, he changed the time and location of the fight twice. The ultimate location agreed upon was in a
territory claimed by both FCK and Azusa 13.
Despite challenging Preciado to a fist fight, defendant arrived at the
fight armed with a handgun and accompanied by one “high-tier†FCK member,
Perez, and a member of another gang who was also armed, Marquez. Perez and Marquez waited outside the backyard
where the fight was to take place to ensure that Miramontes and the males with
him did not interfere with the planned shooting. In the backyard, defendant shot Preciado at
close range three times.
The
foregoing evidence supported a reasonable inference that defendant, in
association with fellow FCK gang member Perez, planned the murder of Preciado
to avenge Preciado’s act of disrespect toward defendant and his gang. The location of the shooting, in disputed
gang territory, supported that inference, as did the cold blooded and vicious
nature of the shooting. There was
evidence which suggested that, by brutally murdering a disrespectful member of
a rival tagging crew in disputed gang territory, defendant and Perez enhanced
the reputation of FCK in that territory and the larger community, and at the
same time instilled fear in members of the community, all of which showed that
the shooting benefited FCK.
There
was also evidence sufficient to support a reasonable inference that defendant
acted with the requisite specific intent to promote, further, or assist gang
members in the commission of the crime.
The evidence showed that he committed the shooting in concert with
another FCK gang member, Perez, and Marquez, a known member of an unspecified
gang. “Commission of a crime in concert
with known gang members is substantial evidence which supports the inference
that the defendant acted with the specific intent to promote, further or assist
gang members in the commission of the crime.
(People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [5
Cal.Rptr.3d 615].)†(
Cal.App.4th 310, 322.) As noted above,
the evidence also showed that defendant knowingly entered disputed gang
territory and committed a preplanned and vicious murder. That evidence suggested that defendant acted,
at least in part, to enhance or promote the reputation of his gang for
ruthlessness and violence in the community.
Defendant’s
final challenge to the sufficiency of the gang evidence is based on the
assertion that the gang expert failed to specify the primary criminal
activities of FCK as provided under section 186.22, subdivision (f), which
requires the prosecution to prove that one of the “primary activities†of a
gang “is the commission of one or more of the criminal acts enumerated in
paragraphs (1) through (25) of subdivision (e).†There is no merit to this contention.
During
direct examination of the gang expert, the following exchange took place: “Q.
You said [FCK] evolved from a tag crew into a criminal street gang; is
that correct: A. That’s correct, sir. Q. And
the difference would be what? A. Well, a juvenile tagging crew, primarily
they—they tag their monikers, their crew name and other types of what they
would call artwork onto public and private property. And most of them are juveniles, teenage
years, middle school—and high school-aged.
That would be a juvenile tagging crew.
Q. And a criminal street gang, in
your experience and opinion? A. Well, my opinion and experience, a criminal street
gang includes those types of vandalism where they tag monikers, gang names on
private and public property, but they engage in other patterns of criminal
activity. Q. Including primary activities with this
particular crew or group? What types of
activities have you learned they engage in?
A. Felony vandalism, assault with
a deadly weapon, shootings-- Q. Shootings could involve—excuse me for
interrupting—a negligent discharge of a weapon, attempted murders,
murders. Could involve that range of things. What specifically, in your experience, have
they involved themselves in? A. Attempted murder.â€
That
testimony supported a reasonable inference that the primary criminal activities
in which FCK engaged included acts of felony vandalism, assaults with deadly
weapons, shootings, and attempted murders, each of which is a crime enumerated
in section 186.22, subdivision (e).
Instruction on Pattern of Criminal Activity
Defendant
contends that the trial court erred by instructing the jury that the crimes
introduced by the prosecution to show the requisite pattern of criminal
activity did not need to be gang-related crimes. According to defendant, when, as here, the
prosecution relies on the charged crime as one of the enumerated crimes that may
be used to show a pattern of criminal activity, the charged crime must be
gang-related.
“The
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence . . . .†(People v. Blair (2005) 36 Cal.4th
686, 744.) If a jury instruction is a correct statement of the law, and the
defendant fails to request a clarifying instruction, the defendant forfeits any challenge to the
instruction on appeal. “The longstanding
general rule is that the failure to request clarification of an instruction that is otherwise a correct
statement of law forfeits an
appellate claim of error based upon the instruction given. [Citations.]â€
(People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant
does not contend that the instruction on the requisite pattern of criminal
activity was an incorrect statement of the law.
He contends that given the facts of this case, the instruction should
have been clarified by additional language explaining that to the extent the
prosecution was relying on the charged crime as one of the enumerated crimes
necessary to show a pattern of criminal activity, the prosecution was required
to show that the charged crime was gang-related. Because defendant did not request such a
clarification at trial, he has forfeited his challenge to the instruction on
appeal.
C. Due
Process Challenge to Gang Expert Testimony
Defendant
maintains that because the prosecution did not elicit information showing the
shooting was gang-related prior to the testimony of the gang expert, it was an
abuse of discretion to allow the gang expert to testify. From defendant’s perspective, the gang
expert’s opinions were completely lacking in foundation, such that the
admission of those unsupported opinions denied him
Prior
to the gang expert’s testimony, defense counsel objected to him being allowed
to testify on the grounds that the prosecution’s witnesses had not provided any
testimony showing that the shooting was gang-related. The trial court considered the objection, but
overruled it, reasoning that defense counsel’s argument was directed at the
weight to be given to the expert’s opinions, not their admissibility. The following colloquy took place: “The Court:
Apparently, your objection is not based on expertise, but based upon the
facts introduced at the time for him to render an opinion. [¶]
[Defense Counsel]: Yes. [¶]
The Court: That’s a separate
question. I don’t know what this
expert’s going to have to say. I don’t
know what specific facts he’s going to rely upon and what he’s going to rely
upon for rendering his opinion. I don’t
believe the court’s in a position to, as a matter of law, preclude him from
offering an opinion on the evidence that has been introduced. The jury has a right—[¶] The question becomes, what weight is given
that opinion? And we have an instruction
in terms of the assumed facts that either exist or don’t exist or proved or not
proved in determining whether that opinion is reasonable. We do have an instruction to cover that
point. [¶] But for this court to prevent him from
testifying as a matter of law, based upon the testimony that I have heard, I
don’t believe that there’s an absence of evidence. There’s some evidence, however
tangential. And, quite frankly, I’m
rather curious to listen to what he has to say,
listening to opinions and conclusions based upon what I’ve heard. But I don’t believe whether some
evidence—that I can preclude him from offering his expertise. [¶]
It’s questioning about, what basis can he render an opinion? We have a protective instruction in that
regard, and there are future instructions, if any need to be done. [¶]
Anything further by the people on that subject? [¶]
[Prosecutor]: No. Submitted.
. . . [¶] The Court:
Objection is noted and overruled.â€
“‘Expert opinion
testimony is admissible only if it is “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the trier of
fact.â€â€™ (People v. Watson (2008)
43 Cal.4th 652, 692 [76 Cal.Rptr.3d 208, 182 P.3d 543], quoting Evid. Code, §
801, subd. (a).) ‘When expert opinion is offered, much must
be left to the trial court’s discretion.’
(People v. Carpenter (1997) 15 Cal.4th 312, 403 [63 Cal.Rptr.2d
1, 935 P.2d 708].) The trial court has
broad discretion in deciding whether to admit or exclude expert testimony (People v. Bui
(2001) 86 Cal.App.4th 1187, 1196 [103 Cal.Rptr.2d 908]), and its decision as to
whether expert testimony meets
the standard for admissibility
is subject to review for abuse of
discretion. (People v. Alcala
(1992) 4 Cal.4th 742, 788-789 [15 Cal.Rptr.2d 432, 842 P.2d 1192] (Alcala);
see People v. Lindberg (2008) 45 Cal.4th 1, 45 [82 Cal.Rptr.3d 323, 190
P.3d 664].)†(People v. McDowell (2012) 54 Cal.4th 395, 425-426.)
The trial court
correctly concluded that defendant’s objection to the expert’s testimony went
to the weight to be accorded that testimony, not its admissibility. Contrary to defendant’s assertion, and as
discussed above, there was evidence that the shooting was gang-related. Jessica testified that Marquez told her shortly
after the shooting that he, defendant, and Perez were being chased by members
of Azusa 13, and Miramontes admitted that he and his “homie†Preciado were
“from†the BSO tagging crew. Moreover,
the expert himself provided key factual information showing that the shooting
was gang-related. For example, the
expert confirmed that FCK was an established gang in Azusa that engaged in
primary criminal activities, as was Azusa 13.
He also testified that Azusa 13 and FCK were rivals and that the
location of the shooting was in a
territory claimed by both gangs.
And he confirmed that defendant and Perez were known, documented FCK
gang members and that Preciado’s relationship with Jessica would have been
considered by FCK gang members as a serious sign of disrespect toward defendant
that called for some act of retaliation.
Based on the evidence, including the testimony of the gang expert, it
was not an abuse of discretion to allow the gang expert to testify,
particularly when the jury was subsequently instructed as to the weight to be
accorded the expert’s opinion.
Defendant
argues that the admission of the gang expert’s testimony violated the Sixth
Amendment and Crawford v. Washington (2004)
541 U.S. 36. But as defendant concedes,
it is well established in California that the Sixth Amendment’s Confrontation
Clause does not prohibit experts from testifying about
of their opinions. (See, e.g.,
Cal.App.4th 142, 153-154; People v.
Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) “Hearsay in support of expert opinion is
simply not the sort of testimonial hearsay the use of which
v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) Therefore, the trial court did not violate
defendant’s rights under the Sixth Amendment by admitting the gang expert’s
testimony.
E. Restriction
on Defense Counsel’s Argument
Defendant contends that the trial court abused its discretion by
preventing his counsel from arguing that he shot Preciado out of fear. According to defendant, the evidence
supported an argument that he acted out of fear which motive, if accepted by
the jury, would have resulted in a different outcome, i.e., a guilty verdict on
second degree murder rather than first degree murder.
Prior
to defense counsel’s closing argument,
the prosecution objected to an argument slide showing a jury panel and a
thought or comment bubble above one of the jurors that read, “Was there
fear?†The following exchange then
occurred between the trial court and defense counsel: “The Court:
There was an objection to two slides.
[¶] Would you state them for the
record so that there is a record of what those slides said? [¶]
[Defense Counsel]: One slide has
a jury panel. In one of the commenting
bubbles above a juror it specifically indicated, ‘was there fear?’ And there was an objection to that, and based
on the court’s ruling, that was now deleted.
[¶] The Court: The court inquired of counsel what he meant
to argue fear, and your response was when he rode up to the carport, he saw
five people and you can infer fear from that.
[¶] [Defense Counsel]: Yes.
[¶] The Court: The question is, what is the relevance of
that in terms of your argument? [¶] [Defense Counsel]: And my response was that fear—the specific
intent to kill that it, in fact, disabled that, because there was no planning
or malice aforethought for the killing until—I think it would be reasonably
inferred that my client may have felt fear in that-- [¶]
The Court: What you’re basically
saying is that he saw five people, left them, went searching for one and
somehow he transferred that fear to the . . . victim? [¶]
[Defense Counsel]: Yes. Based on the totality of the circumstances,
if he’s going into a backyard by himself, that the victim’s larger than he is
and there’s five friends of the victim.
[¶] The Court: Who are not present anymore. [¶]
[Defense Counsel]: That’s
correct. [¶] The Court:
And that goes to what? [¶] [Defense Counsel]: It goes to the specific intent, forming
specific intent before the fight, that--
[¶] The Court: The court would, under 352, find that
misleads the jury in terms of where fear comes into play in regards to people
outside at a different location, separate from all the other people and no one
else is present. [¶] It raises the issue of imperfect self-defense. We don’t know what the state of mind of the
defendant was. You can draw reasonable
inferences, but I think that’s a stretch in regards to taking that fear from
that group to the victim.â€
In
support of his argument that the evidence supported a reasonable inference that
he shot Preciado out of fear, defendant cites four facts from the record: (i) Preciado was larger than defendant;
Preciado had more cohorts at the location of the fight than defendant, who was
accompanied only by Marquez and Perez; defendant told Jessica the night of the
shooting that when he saw the number of cohorts on Preciado’s side, he became
scared and shot Preciado; and prior to the fight, Miramontes told defendant
“that fool [Preciado] ain’t no bitch, dog.
That fool [Preciado will] fuck you up fool. You know.â€
During
his argument in support of the disputed slide in the trial court, however,
defendant’s counsel relied upon only two facts:
Preciado was larger than defendant and Preciado had more people on his
side the night of the fight. Based
solely on those two facts, the trial court ruled that it would be speculative
for defense counsel to argue that defendant acted out of fear. But the trial court made no ruling with
respect to the other two facts—defendant’s statement to Jessica that he shot
Preciado because he was scared and Miramontes’s statement that Preciado would
“fuck [defendant] up†during the arranged fight.
As
to the argument that was made to the trial court based on Preciado’s size and
the number of cohorts on his side, we conclude that the trial court did not
abuse its discretion. As defendant
concedes in his reply brief, section 1044 “ authorizes the [trial] court to
limit [defense] counsel’s argument to relevant and material matters . . . .†“‘“Only relevant evidence is admissible
(Evid. Code, § 350; [citations]), and, except as otherwise provided by statute,
all relevant evidence is admissible (Evid. Code, § 351; see also Cal. Const.,
art. I, § 28, subd. (d) . . . ).â€
[Citation.] “Relevant evidence is
defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.’ The test of relevance is whether the evidence
tends ‘logically, naturally, and by reasonable inference’ to establish material
facts such as identity, intent, or motive.
[Citations.]†[Citation.] [¶] .
. . ‘[T]he trial court has broad
discretion to determine the relevance of evidence.’ (People v. Cash [(2002)] 28 Cal.4th [703,]
727.)†(People v. Tully (2012) 54 Cal.4th 952, 1010.)
As for the fact
that Preciado was larger than defendant, it was not unreasonable for the trial
court to conclude that arguing fear based on that fact was speculative. The evidence showed that defendant challenged
Preciado to the fight, arrived at the fight armed, and went straight to the
backyard to confront Preciado, none of which suggests that Preciado’s size
invoked fear in defendant. As for the
disparity in the number of cohorts, the trial court reasonably concluded that
it would be speculative to infer that the number of people outside the backyard
had any effect on defendant’s state of mind when he entered the backyard to
confront Preciado who was alone. There
was no evidence that Preciado or any of his cohorts were armed, whereas there
was substantial evidence that defendant and Marquez were armed. Thus, the number of Preciado’s cohorts, by
itself, did not support a reasonable inference that defendant entered the
backyard and shot Preciado because he was afraid of Preciado’s cohorts outside
that location.
As for the two
statements that defendant raises and relies upon for the first time on appeal,
even assuming the trial court erred because those statements would have
supported an argument that defendant acted out of fear, any such error was
harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) First, defendant’s statement to Jessica and
Miramontes’s statement to defendant were both in evidence and the jury was
properly instructed concerning premeditation.
Therefore, assuming those statements supported a reasonable inference
that defendant acted out of fear, the jury was free to draw that conclusion,
but it instead concluded that defendant acted with premeditation
notwithstanding those statements.
Moreover,
defendant’s statement to Jessica that he acted out of fear and Miramontes’s
statement to defendant that Preciado would “fuck [defendant] up†were, at best,
weak evidence in support of defendant’s argument that he acted out of fear and
therefore could not have premeditated the murder of Preciado. By contrast, the evidence of premeditation
was strong and compelling. Defendant
challenged Preciado to a fight and intentionally changed the time of the fight
so that it would occur at night.
Defendant and at least one of his cohorts then arrived at the
prearranged location for the fight armed, while Preciado and his cohorts were
unarmed, presumably because they believed a fist fight had been arranged
between defendant and Preciado. Under
the cover of darkness, defendant went to the backyard of the prearranged
location alone with Preciado. Once
there, he pulled out the handgun he had brought with him and shot Preciado
twice in the back and then once in the chest while Preciado was lying
helplessly on the ground mortally wounded.
The evidence of
defendant’s conduct on the day of the murder strongly supported the jury’s
finding that defendant premeditated and then carried out the cold blooded
murder of Preciado. Therefore, even if
the trial court had allowed his counsel to argue that defendant acted out of
fear based on the statements of Jessica and Miramontes, it is not reasonably
likely that a jury would have made a different finding on the issue of
premeditation. As noted, the two
statements did not constitute evidence of fear that would have been sufficient
to overcome the plain inference from the other evidence that defendant
premeditated the murder.
Subdivision (b)(1)(C)
Defendant
contends, and the Attorney General agrees, that the trial court erroneously
imposed a 10-year sentence enhancement under section 186.22, subdivision
(b)(4). According to defendant, section
186.22, subdivision (b)(5) was applicable to the charged crime in this case,
and it exempts felonies punishable by life imprisonment, such as murder, from
imposition of the 10-year sentence enhancement under section 186.22.
We
agree with the parties that the trial court erred in imposing the 10-year
sentence enhancement under section 186.22.
We therefore remand the matter to the trial court with instructions to
modify the abstract of judgment by deleting the 10-year sentence enhancement
under section 186.22.
The matter is remanded to the trial
court with instructions to modify the abstract of judgment to delete the
10-year sentence enhancement under section 186.22. In all other respects, the judgment of
conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MOSK,
J.
We concur:
TURNER, P. J.
ARMSTRONG,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
testified at trial, but was uncooperative.
Detective Hernandez therefore testified as to the information Miramontes
provided about the shooting during a tape recorded interview, and the recorded
interview was played for the jury.
