People v. Palomares CA5 ( 2015 )

Filed 9/25/15 P. v. Palomares CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066360 & F066576
Plaintiff and Respondent,
(Super. Ct. Nos. BF135994A &
v. BF135994C)
VICTOR MANUEL PALOMARES et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant Victor Manuel Palomares.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant Oscar J. Martinez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellants Victor Manuel Palomares and Oscar J. Martinez were tried jointly and
convicted of various offenses arising out of an incident in March 2011 in a restaurant
parking lot in Kern County. They contend the trial court committed several prejudicial
errors, including: admission of gang expert evidence and postarrest statements;
instructing the jury with CALCRIM Nos. 600 and 3472; denial of their Batson/Wheeler1
motion; and imposition of a three-year term for the Penal Code2 section 12022.7
enhancement. They also contend the evidence is insufficient to support the gang offense
conviction under section 186.22, subdivision (a).
We conclude appellants have waived3 some issues; some issues lack merit; and in
other instances, any error was nonprejudicial. We will affirm the judgments.
FACTUAL AND PROCEDURAL SUMMARY
Essam Hashem arrived at the Maria Bonita Restaurant in Kern County with his
brother and three friends at about 11:00 p.m. on March 11, 2011, for a birthday party.
Hashem knew some people at the restaurant, including Chris Rodriguez, but there were
also people he did not know. Hashem did not see any fights inside the restaurant, or hear
anyone talking about a fight. Later, when everyone started to leave, Hashem went
outside.
Hashem saw two large groups of people in the parking lot and knew there was
going to be a fight. Hashem saw Rodriguez and two other people approach a couple of
men who were walking toward them; a fight started. As Hashem was backing away from
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal. 3d
258 (Wheeler).
2 References to code sections are to the Penal Code unless otherwise specified.
3 We use the term “waiver” throughout this opinion even though the correct term is
“forfeiture,” because the parties and court opinions cited occasionally use the terms
interchangeably. (In re Sheena K. (2007) 40 Cal. 4th 881, fn. 1.)
2.
the fight, he was shot in the back. He also was stabbed twice after being shot, but he did
not see who stabbed him. Hashem was confined to a wheelchair after being shot.
Tariqu Murshed arrived at the restaurant with Hashem. Later, as he was leaving
the restaurant with the group that attended the party, he noticed a big fight in the parking
lot. He stayed away from the fight, heard three gunshots, and ran to his car. He could
not leave though, because Hashem had not shown up at the car. One of his friends, Eric
Rivera, came and told Murshed that Hashem was lying on the ground in the parking lot.
Richard Martinez4 arrived at the restaurant around 10:30 p.m. for the birthday
party. Around 1:30 a.m., he noticed people “getting in little groups” and thought
something was going to happen. Richard noticed the security guards telling everyone to
leave, so he and his friends left. Neither he nor his friends had any weapons.
As Richard left the restaurant, he noticed two groups in the parking lot and
thought he “heard them saying” gang signs, or names. Richard noticed Rodriguez in one
of the two groups and things were being yelled by both groups. Richard could tell the
two groups were going to fight by the way they were setting up and yelling at one
another. The only person Richard recognized in the fight was Rodriguez.
The fight looked to Richard to be mutual combat. The group that did not include
Rodriguez was yelling “Colonia.” Not long after the fight started, Richard heard three
gunshots and noticed a white or silver truck. After the first gunshot, Richard saw
Hashem on the ground. He took off toward the truck; looked around to see where
another friend, Andre Onsurez was; and saw Onsurez on the ground. Richard ran to
Onsurez and told him to get up; when Onsurez did not respond, Richard lifted up
Onsurez’s shirt and saw a bullet wound. Onsurez was dead from the gunshot to his chest.
4 We will refer to Richard Martinez as Richard in this opinion, in order to avoid confusion
with appellant Oscar Martinez.
3.
Julyessa Gamez was at the restaurant. When security told everyone to leave, she
went out to her car and realized a fight had started. A gunshot rang out; Gamez looked
around and saw a flash coming from the driver’s side window of a truck. Gamez
identified the truck from where the gunshots emanated; it was appellant Martinez’s truck.
Vanessa Mendez, Rodriguez’s girlfriend, also was at the restaurant. When she
was leaving the restaurant at closing, she saw a big group of guys and a fight break out in
the parking lot. She heard gunshots, but could not tell from where the shots were fired.
Jacob Aguilar also was at the restaurant when the fight broke out; neither he nor
any of his friends were involved in the fight. When they walked out of the restaurant,
Aguilar heard gunshots and saw that the shots were fired from a truck.
Diego Gutierrez was a security guard at the restaurant. On the evening of
March 11–12, 2011, the restaurant closed around 1:30 a.m. Gutierrez started toward the
front door, encouraging people to leave. He noticed people were gathering in the parking
lot and a fight was starting. Someone called his name and he looked away from the
group that was fighting; at that point he heard a gunshot. As he tried to keep patrons
from leaving the restaurant, Gutierrez heard another gunshot. Gutierrez called 911. He
did not see the shots being fired, but believed the suspects left the parking lot in a gray
truck.
Gustavo Siordia arrived at the restaurant with his friend, appellant Martinez. They
arrived in Martinez’s gray pickup truck. Siordia, Martinez, and Jered Caywood were
drinking and playing pool; Palomares arrived about an hour later and joined them.
Siordia heard people screaming “west side” while he was on the dance floor; there was
tension in the room.
When Siordia exited the restaurant with his friends, there already were about 15
males standing in the parking lot. Siordia told the others something was “gonna trip” and
Siordia and Martinez walked toward Martinez’s truck; Palomares and Caywood
4.
continued walking into the parking lot toward the group of males. Martinez got into the
driver’s seat and drove to where Palomares and Caywood were fighting.
Siordia told Martinez that Caywood and Palomares were getting jumped; they
were being hit and kicked by people, but no one was using a weapon. Martinez pulled a
gun from the center console, fired a shot into the air, and then fired a second shot.
Siordia saw someone fall to the ground after the second shot. After the second shot,
some people backed off, but others continued fighting.
Siordia got out of the truck and heard another gunshot. He grabbed Palomares and
told Caywood, “we gotta go.” Siordia did not see Palomares with a knife, but saw blood
on his shirt and hands. He also saw Martinez start to drive off, but then stop to shoot a
man approaching the truck; the man was not a part of the fight and he did not have a
weapon. Siordia, Caywood, Palomares, and Martinez all “used to” “hang out with
Colonia” members.
While at the restaurant, Rodriguez was sitting at a table with friends drinking beer;
he had four or five beers. Rodriguez saw some people at the restaurant that had stolen
from his brother; Rodriguez was mad. While in the bathroom, Rodriguez talked about
how something was going to happen and he “mad-dog[ged]” the person he did not like;
the person was a “Mexican dude” with the first name Victor and the last name began with
a “P.”
When Rodriguez left the restaurant and was walking to his car, he noticed a crowd
gathering in the parking lot. Rodriguez walked into the crowd, saw Palomares, and the
fight broke out; he did not know who swung first. Rodriguez did not have a weapon.
After swinging back and forth a couple times, Rodriguez heard a gunshot and broke apart
from Palomares; he ran toward his car. When he got to his car, Rodriguez felt pain in his
neck and back; he saw that he was bleeding. Rodriguez sustained five wounds in the
fight.
5.
Caywood did not see any fights or hear anyone talk about fighting while inside the
restaurant. Caywood acknowledged being drunk when he walked out of the restaurant at
closing time with Palomares. As they were walking out, somebody came up to Caywood
and told him that somebody wanted to “get at me.” Caywood and Palomares walked over
to the group and Caywood asked, “[W]ho wants to get at me?” The group jumped them.
Palomares and Caywood were fighting side by side; the fight ended when they
heard gunshots. Caywood ran over to Martinez’s truck and he and Palomares climbed
inside. Caywood noticed that Palomares had blood on his shirt. Palomares said
something about “[s]tabbing people.” As they were driving away, somebody approached
the truck and Martinez shot the man. Caywood did not need medical attention after the
fight.
The Bakersfield Police Department responded to multiple 911 calls it received
about the parking lot fight. Photographs of Caywood revealed no injuries and a “KC”
tattoo on his chest. A black hat recovered from the parking lot was the one worn by
Palomares during the fight.
A search of Martinez’s bedroom, consented to by his mother in his absence,
disclosed two baseball caps with the letter “C” on them. Martinez was located the day
after the fight while driving a silver Toyota Tacoma pickup truck. Palomares was at the
residence to which Martinez had driven. Palomares and Martinez were placed under
arrest.
After being placed under arrest and while being transported to jail, the transporting
officer, Officer Beagley, asked Palomares why he had covered up the “C” tattoo on his
neck with a rose tattoo. Palomares responded that he wanted to avoid a gang charge.
Beagley noticed the rose tattoo was red and irritated, indicating to him that it was very
recent. While Palomares was being booked, Beagley heard Palomares ask to be placed
with the South in response to a question about whether he was associated with any gang.
6.
The Toyota Tacoma being driven by Martinez had bloodstains on the passenger
seat, door, and headrest. Lab analysis showed that Rodriguez’s blood was in the sample
from the truck.
There was expert testimony to the effect that Martinez, Palomares, and Caywood
were members of the Colonia Bakers, a subset of the Sureños. Sales of narcotics,
possession of firearms, and witness intimidation are among the primary activities of the
Colonia Bakers.
Police reports from 2009 and 2010 showed that Martinez had been in the company
of Colonia Bakers gang members; regularly associated with Colonia Bakers members;
had hats with the letter “C” on them; and a tattoo on his arm indicating association with
the Sureños. In prior contacts with police before the restaurant parking lot fight,
Palomares had acknowledged being a member of Colonia Bakers. Palomares also had
been found to be in the presence of other Colonia Bakers members on previous occasions
and had a “C” tattoo, which he had altered subsequent to the fight.
In response to a hypothetical consistent with the facts of this case, the gang expert
opined that the fight, stabbing, and shooting were for the benefit of, at the direction of, or
in association with the Colonia Bakers gang.
Martinez was convicted of the willful, deliberate, and premeditated murder of
Onsurez; attempted murder of Hashem; attempted murder of Rodriguez; the gang offense
set forth in section 186.22, subdivision (a); and being a felon in possession of a firearm.
Palomares was found guilty of attempted involuntary manslaughter of Rodriguez; assault
with a deadly weapon as to Rodriguez; and the gang offense. Amongst the enhancements
found true was a section 12022.7 enhancement as to both Palomares and Martinez.
Palomares filed a notice of appeal on December 11, 2012, which was assigned
case No. F066360. Martinez filed his notice of appeal on January 24, 2013, which was
assigned case No. F066576. On its own motion, this court on March 27, 2013,
7.
consolidated the two appeals under case No. F066360 and directed all documents be filed
in that case.
DISCUSSION
I. BATSON/WHEELER CHALLENGE
Palomares and Martinez contend the trial court erred when it denied their motion
for a mistrial on the basis of Batson/Wheeler error. In a related argument, they contend
the trial court erred when it failed to articulate express findings as to the truth of each of
the prosecutor’s stated reasons for exercising peremptory challenges. We disagree.
Factual Summary
Defense counsel moved for a mistrial on the grounds of Batson/Wheeler error after
the People exercised nine of their 11 peremptory challenges against potential Hispanic
jurors. At this point in time, there were 11 members of the jury confirmed, of which six
were Hispanic.
The trial court confirmed that nine of 11 peremptory challenges had been
exercised by the People against potential Hispanic jurors. The trial court stated that “the
excusal of these jurors certainly gives rise to inference of discriminatory purpose.” The
People were asked to explain their rationale for excusing the Hispanic jurors. The People
noted that the defense had exercised all 12 peremptory challenges against white jurors
and that six of the 11 seated jurors were Hispanic and accepted by the People.
The People offered specific reasons for excusing each of the jurors, but in this
appeal Palomares and Martinez claim the People’s rationale was pretextual as to
Dr. Ortiz; Martinez also claims the rationale was pretextual as to Dr. Nguyen, Romero
Aguilar, Melissa Sanchez, and Adriana Camacho.
Standard of Review
Federal law following Batson holds that exercising peremptory challenges solely
on the basis of race offends the Fourteenth Amendment’s guaranty of the equal protection
of the laws (United States. v. Martinez-Salazar (2000) 528 U.S. 304, 315), and Wheeler
8.
holds that such conduct violates a defendant’s right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of the state
Constitution (Wheeler, supra, 22 Cal.3d at pp. 276–277).
Excluding even a single prospective juror for reasons impermissible under Batson
and Wheeler requires reversal. (People v. Silva (2001) 25 Cal. 4th 345, 386 (Silva).) And
although a party may exercise a peremptory challenge for any permissible reason or no
reason at all (Purkett v. Elem (1995) 514 U.S. 765, 768 (Purkett); People v. Jones (1998)
17 Cal. 4th 279, 294), “implausible or fantastic justifications may (and probably will) be
found to be pretexts for purposeful discrimination.” (Purkett, supra, at p. 768.)
In evaluating a trial court’s Batson/Wheeler ruling that a party has offered a race-
neutral basis for subjecting particular prospective jurors to peremptory challenge, we are
mindful that “‘Unless a discriminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race neutral.’ [Citations.]” (Purkett, supra, 514 U.S.
at p. 768; see Silva, supra, 25 Cal.4th at pp. 384–385.)
In a case in which deference is due, “The trial court’s ruling on this issue is
reviewed for substantial evidence. [Citation.]” (People v. McDermott (2002) 28 Cal. 4th
946, 971.) At trial, the court and counsel follow a three-step constitutional analysis of
peremptory challenges. First, the defendant must make out a prima facie case by
showing that the totality of the relevant facts gives rise to an inference of discriminatory
purpose. Second, if the defendant makes out a prima facie case, the burden shifts to the
prosecution to give an adequate explanation of the peremptory challenges by offering
permissible neutral justifications. Third, if a neutral explanation is tendered, the trial
court must decide whether the opponent of the peremptory challenges has proved
purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168.)
Our duty after denial of a Batson/Wheeler motion without a finding of a prima
facie case is to consider the entire voir dire record before us. Since Batson/Wheeler
motions require a trial court’s personal observations, we give considerable deference to
9.
the trial court’s rulings. (People v. Howard (1992) 1 Cal. 4th 1132, 1155.) If the record
suggests grounds on which the prosecutor reasonably might have challenged the
prospective jurors at issue, our duty is to affirm. (Ibid.)
It is presumed that the prosecutor uses peremptory challenges in a constitutional
manner. We defer to the trial court’s ability to distinguish “bona fide reasons from sham
excuses.” (People v. Burgener (2003) 29 Cal. 4th 833, 864.) As long as the trial court
makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered, its conclusions are entitled to deference on appeal. [Citation.]” (Ibid.)
The party seeking to justify a suspect excusal need only offer a genuine,
reasonably specific race- or group-neutral explanation related to the particular case being
tried. (People v. Fuentes (1991) 54 Cal. 3d 707, 718 (Fuentes); People v. Johnson (1989)
47 Cal. 3d 1194, 1216 (Johnson); People v. Hall (1983) 35 Cal. 3d 161, 167–168; see
Batson, supra, 476 U.S. at pp. 97–98 & fn. 20.) The justification need not support a
challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.
(People v. Montiel (1993) 5 Cal. 4th 877, 910, fn. 9; Johnson, supra, at p. 1218.)
Analysis
Here, race-neutral reasons for excusing the jurors are apparent from the record,
and the prosecutor articulated race-neutral reasons for excusing each of the challenged
jurors. That the prosecutor used many peremptory challenges to excuse Hispanics from
the jury does not by itself establish a prima facie case. (See People v. Box (2000) 23
Cal. 4th 1153, 1188–1189.)
When asked about prospective juror Romero Aguilar, the prosecutor noted that
Aguilar had indicated he thought he had prior contact with one of the defendants,
Martinez; had himself previously been convicted of a crime, driving under the influence;
had a master’s degree in social work and worked with gangs. The prosecutor opined that
Aguilar might become a “closet expert” in the jury room and disregard the testimony of
less educated police officers. These are race-neutral reasons that might not rise to the
10.
level of a challenge for cause, but constitute valid reasons for exercising a peremptory.
(People v. Arias (1996) 13 Cal. 4th 92, 136.)
As for exercising a peremptory challenge against Dr. Nguyen, a non-Hispanic, the
prosecutor noted that there would be medical records introduced into evidence in the
case; the People did not intend to call medical doctors to testify and thought they might
have to change trial strategy if Dr. Nguyen was on the jury; and the prosecutor felt that
Dr. Nguyen could also become a jury room expert “where medical issues are in play.”
While appellants may not agree with the People’s reasons for excusing Dr. Nguyen and
perhaps even consider the reasons trivial, the reasons are race-neutral. (People v. Arias,
supra, 13 Cal.4th at p. 136.)
The prosecutor indicated that she dismissed Jaime Ortiz, a psychiatrist who
worked for the Department of Corrections, because Ortiz knew the victim went to Garces
High School; Ortiz had strong connections to the high school; Ortiz did not directly
answer the questions during voir dire, but instead rambled “on and on.” The prosecutor
felt that Ortiz might not listen to others in the jury room because of his tendency to keep
talking and ramble on; and had concerns that Ortiz might become another jury room
expert because of his education and his work with gangs for the Department of
Corrections. A prosecutor may excuse a juror based upon “‘“hunches,”’” so long as the
reason is not impermissible group bias. (People v. Gutierrez (2002) 28 Cal. 4th 1083,
1122.) The prosecutor articulated race-neutral reasons for excusing Ortiz.
Adriana Camacho also was excused on a peremptory challenge by the prosecutor.
Camacho’s brother had been charged with a serious assault; Camacho did not believe her
brother deserved the punishment he received from the criminal justice system; and
Camacho had returned 25 minutes late from a lunch break during voir dire, which
required everyone to wait for her to return before proceeding. The prosecutor also felt
Camacho had a hostile attitude toward her, as demonstrated by Camacho having her arms
crossed over her chest and an unpleasant look on her face when looking at the prosecutor.
11.
A peremptory challenge based upon a prospective juror’s demeanor, or negative
experience with the criminal justice system, are valid race-neutral reasons for exercising
a peremptory challenge. (People v. Davenport (1995) 11 Cal. 4th 1171, 1203; People v.
Turner (1994) 8 Cal. 4th 137, 171, overruled on other grounds in People v. Griffin (2004)
33 Cal. 4th 536, 555, fn. 5.)
The prosecutor noted that when questioned during voir dire, Melissa Sanchez
expressed concern about her ability to sit through a long trial; Sanchez was visibly
nervous during voir dire; and Sanchez indicated it would be a financial hardship to serve
on a jury as she worked as a school bus assistant. The prosecutor noted that Sanchez had
been instructed by the trial court to check with her employer on whether she would be
paid during her jury service; Sanchez came to court the next day having failed to follow
the trial court’s instruction. When the trial court instructed Sanchez to leave the
courtroom and call her employer, she did; however, Sanchez was unable to clearly
articulate the financial hardship and had difficulty expressing herself.
At one point, the trial court asked for a stipulation from all parties to dismiss
Sanchez as a juror; the defense did not agree. The prosecutor thereafter exercised a
peremptory challenge because she felt it was a potential hardship for Sanchez to serve on
a jury; Sanchez had difficulty articulating and communicating her thoughts; and Sanchez
expressed concern about being able to sit through a long trial. The prosecutor’s reasons
for excusing Sanchez—potential hardship and concern over ability to fulfill the role of a
juror—are valid, race-neutral reasons for exercising a peremptory challenge. (People v.
Landry (1996) 49 Cal. App. 4th 785, 789; People v. Davenport, supra, 11 Cal.4th at
p. 1203.)
Appellants wish us to engage in a comparative analysis regarding the
prosecution’s use, or failure to use, peremptory challenges on specific jurors. We do not
engage in a comparative analysis of various juror responses to evaluate the good faith of
the prosecutor’s stated reasons for excusing a particular juror “because comparative
12.
analysis of jurors unrealistically ignores ‘the variety of factors and considerations that go
into a lawyer’s decision to select certain jurors while challenging others that appear to be
similar.’” (Fuentes, supra, 54 Cal.3d at pp. 714–715, quoting Johnson, supra, 47 Cal.3d
at pp. 1219, 1220.) “The purpose of peremptory challenges is to allow a party to exclude
prospective jurors who the party believes may be consciously or unconsciously biased
against him or her. [Citation.]” (People v. Jackson (1992) 10 Cal. App. 4th 13, 17–18.)
“We accord great deference to a trial court’s determination of the sufficiency of a
prosecutor’s explanations for exercising peremptory challenges. [Citation.]” (People v.
Williams (1997) 16 Cal. 4th 635, 666.) The focus of a Batson/Wheeler analysis is on the
subjective genuineness of the reason, not the objective reasonableness. (People v.
Reynoso (2003) 31 Cal. 4th 903, 924.)
After hearing the explanations for the use of peremptory challenges against
specific prospective jurors, the trial court invited argument from both defense counsel.
The trial court analyzed the prosecutor’s responses and the challenged jurors’ responses
to voir dire and found “the People have offered permissible, credible race-neutral
justifications” for dismissing the challenged jurors. We conclude substantial record
evidence supports the trial court’s ruling. Therefore, we will not reverse the trial court’s
denial of the Batson/Wheeler motion.
As for appellants’ contention that the trial court had to articulate express findings
on each of the prosecutor’s proffered reasons for using a peremptory challenge, that
simply is not the state of the law. The trial court is not required to make detailed or
specific findings for the record to justify every instance in which a prosecutor offers a
race-neutral reason for exercising a peremptory challenge. (People v. Stanley (2006) 39
Cal. 4th 913, 936.)
Appellants cite to the dissenting opinion of Justice Liu in People v. Williams
(2013) 56 Cal. 4th 630, 699–728, and his concurring opinion in People v. Mai (2013) 57
Cal. 4th 986, 1058–1076, to support their contention. Justice Liu’s dissent and concurring
13.
opinion on this point, however, do not express the views of the majority of the California
Supreme Court on this issue; none of the other justices joined in the concurrence in Mai
and in Williams, at pages 698–699, Justice Werdeger joined Justice Liu in dissenting, but
she did not agree that a trial court has to make explicit findings on the prosecutor’s
reasons for exercising peremptory challenges.
The trial court was not required to question the prosecutor further or make
detailed, express findings before denying the Batson/Wheeler motion. (People v. Allen
(2004) 115 Cal. App. 4th 542, 548.)
II. MOTION TO SUPPRESS
Palomares contends the trial court erred in denying his motion to suppress his
postarrest statements made in response to questions from an officer. He asserts the
statements were obtained in violation of his rights under Miranda v. Arizona (1966) 384
U.S. 436 (Miranda). The People contend admission of the statements was not error. We
agree with Palomares that the trial court erred in ruling the statements admissible;
however, the error was not prejudicial.
Factual Summary
On the evening of March 16, 2011, Officer Peter Beagley was one of the officers
that went to arrest Palomares. A warrant had been issued for the arrest of Palomares on
murder, attempted murder, and gang charges. Beagley had been told in the briefing that
Palomares had a large “C” tattoo on his neck.
Palomares was in handcuffs and in the back seat of Beagley’s patrol car. Beagley
and his partner were transporting Palomares to the jail; Palomares was under arrest at the
time. On the way to the jail, Palomares asked Beagley what the charges were; Beagley
told him. Palomares asked if he was being transported to jail; Beagley responded
affirmatively.
Beagley did not see a “C” tattoo on Palomares; instead he saw a large tattoo of a
flower. Beagley asked Palomares why he had covered up the “C” tattoo. Palomares told
14.
Beagley he had it covered up because he did not want a gang charge. Beagley asked
about the significance of the flower tattoo. Palomares responded that it had no
significance; it was merely a cover up for the Colonia tattoo.
The trial court stated that in determining whether police conduct constitutes an
interrogation, “the California Supreme Court seems to focus on police intent.” The trial
court then concluded that looking at the officer’s stated intent and the “total situation,”
Beagley’s questioning of Palomares about the tattoo was not an interrogation and the
statements were admissible.
Standard of Review
In ruling on a motion to suppress, “‘“the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. We review the court’s resolution of the factual inquiry under
the deferential substantial evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to independent
review.”’” (People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 364–365.) On
appeal, we consider the correctness of the trial court’s ruling itself, not the correctness of
the reasons as articulated by the trial court. (People v. Letner and Tobin (2010) 50
Cal. 4th 99, 145.)
Analysis
Here, the historical facts are not in dispute: Palomares was in custody and
Beagley initiated questioning. A police officer may speak to a suspect in custody as long
as the speech would not reasonably be construed as calling for an incriminating response.
(People v. Cunningham (2001) 25 Cal. 4th 926, 993.) “In deciding whether police
conduct was reasonably likely to elicit an incriminating response from the suspect, we
consider primarily the perceptions of the suspect rather than the intent of the police.”
(People v. Davis (2005) 36 Cal. 4th 510, 554.)
15.
The trial court applied an erroneous standard in evaluating whether the exchange
between Beagley and Palomares was an interrogation and, therefore, not admissible. The
trial court focused on the stated police intent, which according to Beagley was mere
curiosity, instead of whether the questions were reasonably likely to elicit an
incriminating response. (People v. Davis, supra, 36 Cal.4th at p. 554.)
Regardless of the stated intent behind Beagley’s questions, asking a suspect about
gang indicia—why Palomares covered up the “C” tattoo on his neck—was reasonably
likely to elicit an incriminating response. Beagley not only asked about gang indicia, he
did so knowing that Palomares was facing gang-related charges. (People v. Davis, supra,
36 Cal.4th at p. 554.) One cannot question a suspect in custody facing gang-related
charges about gang indicia without a reasonable expectation of eliciting an incriminating
response. (People v. Cunningham, supra, 25 Cal.4th at p. 993.)
Our application of the undisputed facts to the relevant rule of law leads us to
conclude that Beagley’s questions constituted an impermissible interrogation likely to
elicit an incriminating response. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th
at pp. 364–365.) As such, the exchange was not admissible and the trial court erred in
admitting the remarks into evidence. (People v. Letner and Tobin, supra, 50 Cal.4th at
p. 145.)
Beagley’s observation that the flower tattoo on Palomares’s neck appeared red and
irritated, indicating to him that it was a fresh tattoo, was admissible, as it was the result of
an observation and not an interrogation.
No Prejudice
Palomares contends the admission of his remarks about the tattoo were prejudicial.
The prosecutor urged the jury to consider the postarrest statements as consciousness of
guilt as to the stabbing and the gang offense. Palomares asserts that it is likely the jury
viewed his remarks as “tantamount to a confession as to the substantive gang offense and,
as the prosecutor suggested in final argument, a clear sign that he had just ‘stabbed
16.
someone.’” The People contend admission of the remarks was not prejudicial because
Palomares’s gang membership was established by many other sources and they dispose
of the prejudice argument in one sentence.
A conviction may be affirmed despite the erroneous admission of evidence
obtained in violation of Miranda if the error was harmless beyond a reasonable doubt.
(Arizona v. Fulminante (1991) 499 U.S. 279, 295–296; Chapman v. California (1967)
386 U.S. 18, 24; People v. Cahill (1993) 5 Cal. 4th 478, 509–510.) Here, we conclude
that other properly admitted evidence renders the error was harmless beyond a reasonable
doubt.
Caywood testified that Palomares was a member of the Colonia gang. Testimony
was presented that officers found Palomares in the company of known members of the
Colonia gang during prior street contacts, including at least one instance where
Palomares admitted being a member of the Colonia gang. The Colonia gang was a subset
of the Sureños. Palomares previously had asked to be kept away from Northerners when
booked into jail; he claimed to belong to the “South,” another term for Sureño.
Beagley’s observation that the flower tattoo on Palomares’s neck appeared to be a
fresh tattoo because it was red and irritated, was admissible as it was the result of an
observation, not an interrogation. Other testimony noted that Palomares previously had a
large “C” tattoo on his neck, which had been obscured by a flower tattoo. With this
admissible evidence that the “C” tattoo was obscured by a fresh flower tattoo that
appeared on Palomares’s neck shortly after the incident, the prosecutor fairly could argue
and a jury reasonably could conclude that the tattoo was altered in order to avoid gang
identification and related charges.
As for the stabbing, Rodriguez testified he and Palomares were fighting;
Rodriguez did not have any weapons. After a few swings back and forth with Palomares,
Rodriguez heard a gunshot; he broke away from Palomares and ran toward his car.
Rodriguez was bleeding underneath his armpit after the fight with Palomares; he felt pain
17.
in his neck and left side. Rodriguez sustained about five wounds in the fight with
Palomares. Siordia saw Palomares immediately after he broke off fighting with
Rodriguez; Palomares had blood on his shirt and hands. After Palomares and the others
left the scene of the fight, Caywood noticed that Palomares had blood on his shirt.
Palomares said something to Caywood about “stabbing people.” This evidence is strong
evidence that Palomares stabbed Rodriguez, irrespective of any alteration of the tattoo.
In light of properly admitted evidence, we conclude the erroneous admission of
pretrial statements made by Palomares in response to improper questioning from Beagley
was harmless beyond a reasonable doubt. (Arizona v. Fulminante, supra, 499 U.S. at
pp. 295–296; Chapman v. California, supra, 386 U.S. at p. 24; People v. Cahill, supra, 5
Cal.4th at pp. 509–510.)
III. GANG OFFENSE
Palomares contends there is insufficient evidence to support his conviction for
violating section 186.22, subdivision (a), the gang offense, because the two substantive
offenses of which he stands convicted are assault with a deadly weapon and attempted
voluntary manslaughter against Rodriguez. Palomares contends no other gang member
participated in either of these offenses; therefore, the conviction cannot stand. Martinez
joins in this contention in a cursory fashion, with no analysis or citation to authority.
We conclude Martinez has failed to properly assert this issue on appeal. As for
Palomares, we reject his contention.
Martinez Analysis
We first dispense with Martinez’s claim. In their brief, the People argued that
Martinez’s cursory joinder was insufficient to raise the issue as to him; that some analysis
of the facts and relevant authority needed to be set forth to comply with the applicable
Rules of Court. (Cal. Rules of Court, rules 8.200(a)(5), 8.204(a) & 8.630(a).) Martinez’s
reply brief failed to provide any analysis of facts or applicable law as to him with regard
to this issue.
18.
If a party has failed to provide legal argument and citation to authority, we may
deem the issue waived. A cursory, one-sentence joinder without providing any facts or
argument specific to Martinez is insufficient under the rules and case authority to raise
this issue as to Martinez. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at
pp. 363–364.) Therefore, Martinez has waived this issue. (Ibid.)
Palomares Analysis
Palomares contends the evidence is insufficient to support the section 186.22,
subdivision (a) gang offense because there is no evidence he acted in concert with any
other gang member in committing a felony. Palomares argues the section 186.22,
subdivision (a) conviction cannot stand because his felony convictions were for assault
with a deadly weapon and attempted voluntary manslaughter against Rodriguez, both
based upon his use of a knife, and no other Colonia Bakers gang member participated in
those crimes. Palomares is incorrect.
Section 186.22, subdivision (a), punishes gang members who willfully promote,
further, or assist in any felonious conduct by fellow gang members. (People v. Rodriguez
(2012) 55 Cal. 4th 1125, 1130 (Rodriguez).) While Palomares is correct that he alone
stabbed Rodriguez, both he and Martinez were convicted of crimes against Rodriguez;
Martinez was convicted of attempted murder of Rodriguez and Palomares of attempted
manslaughter and assault with a deadly weapon against Rodriguez. Palomares would
have us believe that he and Martinez did not intend to assist each other when they jointly
attacked Rodriguez. Such an argument lacks credibility.
There were two groups in the parking lot of the restaurant; Rodriguez was in one
group and Palomares and Martinez were part of the other group. Gang taunts were being
yelled by both groups; the group that did not include Rodriguez was yelling Colonia. It
was apparent to observers that a fight was about to start as the two groups moved toward
each other.
19.
Both attempted murder and attempted voluntary manslaughter have as one of their
elements an intent to kill. (People v. Souza (2012) 54 Cal. 4th 90, 120 [element of
attempted murder is intent to kill victim]; People v. Speight (2014) 227 Cal. App. 4th
1229, 1243–1244 [element of voluntary manslaughter is intent to kill another person].)
Here, both Palomares and Martinez attacked Rodriguez and were ultimately convicted of
offenses against Rodriguez that required an intent to kill. A reasonable jury certainly
could conclude that the two acted with the intent to willfully promote, further or assist
felonious conduct by the other when they attacked Rodriguez.
We disagree with Palomares’s implied position that two gang members must
engage in exactly the same conduct, and presumably be convicted of exactly the same
felony, in order for the section 186.22, subdivision (a) offense to be upheld. We do not
view Rodriguez as so limiting. In fact, Rodriguez discusses a hypothetical situation
where one gang member shoots a rival with a gun provided by a fellow gang member.
Although only one gang member fired the weapon, both are guilty of violating
section 186.22, subdivision (a). (Rodriguez, supra, 55 Cal.4th at p. 1138.)
Additionally, in People v. Infante (2014) 58 Cal. 4th 688, the California Supreme
Court indicated that application of section 186.22, subdivision (a) was not necessarily
dependent upon whether the underlying felony that constituted the felonious criminal
conduct element of that subsection was separately charged. (People v. Infante, supra, at
pp. 694–695 & fn. 2.)
Furthermore, in People v. Johnson (2013) 57 Cal. 4th 250, the California Supreme
Court upheld section 186.22, subdivision (a) convictions where gang members agreed to
commit various shootings that were carried out by multiple gang members, finding that
the agreement to commit various different acts constituted an agreement to commit the
gang participation offense set forth in section 186.22, subdivision (a), and once an overt
act was committed, a felony conspiracy under section 182.5 also was committed. (People
v. Johnson, supra, 57 Cal.4th at pp. 266–267.)
20.
We conclude the evidence is sufficient to uphold the section 186.22,
subdivision (a) gang offense conviction.
IV. GANG EXPERT TESTIMONY
Martinez contends admission of gang expert testimony violated his confrontation
clause rights because the gang expert relied extensively on police reports in forming his
opinion that Martinez was a gang member. Palomares purports to join in the issues raised
by Martinez, but fails to provide any factual or legal analysis of the issue as to him.
Palomares has failed to properly raise this issue as to him. Martinez is incorrect;
there was no confrontation clause violation.
Palomares Analysis
We first dispense with Palomares’s claim. In their brief, the People argued that
Palomares’s cursory joinder was insufficient to raise the issue as to him; that some
analysis of the facts and relevant authority needed to be set forth to comply with the
applicable Rules of Court. (Cal. Rules of Court, rules 8.200(a)(5), 8.204(a) & 8.630(a).)
Palomares’s reply brief failed to provide any analysis of facts or applicable law as to him
with regard to this issue.
If a party has failed to provide legal argument and citation to authority, we may
deem the issue waived. A cursory, one-sentence joinder without providing any facts or
argument specific to Palomares is insufficient under the rules and case authority to raise
this issue as to Palomares. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at
pp. 363–364.) Therefore, Palomares has waived this issue. (Ibid.)
Martinez Analysis
Martinez concedes that People v. Gardeley (1996) 14 Cal. 4th 605 held it was
permissible for gang experts to use otherwise inadmissible hearsay as a basis for forming
their opinion and it did not violate the confrontation clause. He contends, however, that
we should hold otherwise. We decline to do so.
21.
The confrontation clause is only implicated by testimonial statements. (Michigan
v. Bryant (2011) 562 U.S. 344, 353–354 [131 S. Ct. 1143, 1152–1153]; Crawford v.
Washington (2004) 541 U.S. 36, 68–69; People v. Gutierrez (2009) 45 Cal. 4th 789, 812.)
Otherwise inadmissible hearsay evidence considered by a gang expert in forming an
opinion is considered basis evidence. The purpose of basis evidence is to reveal the basis
for the expert opinion and to evaluate the weight of that opinion; it is not offered for the
truth of the matters asserted. (People v. Gardeley, supra, 14 Cal.4th at pp. 618–619.)
Because basis evidence is not offered for the truth of the matters asserted therein,
it is not testimonial and its admission into evidence does not violate the confrontation
clause. (People v. Gardeley, supra, 14 Cal.4th at p. 619.) This court is required to follow
California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal. 2d 450, 455.) As such, we decline to differ from the holding of Gardeley.
V. INSTRUCTIONAL ISSUES
Martinez contends the trial court erred when it instructed the jury with CALCRIM
No. 600, attempted murder, and included the language regarding the “‘kill zone’” theory
of murder. Palomares contends the trial court erred when it instructed the jury with
CALCRIM No. 3472, right to self-defense may not be contrived, because it was not
supported by the evidence. They each, in a summary fashion, joined the argument raised
by the other appellant.
Improper Joinder
As we noted previously, some analysis of the facts and relevant authority needed
to be set forth to comply with the applicable Rules of Court with respect to joinder. (Cal.
Rules of Court, rules 8.200(a)(5), 8.204(a) & 8.630(a).) A simple, one-sentence
statement that an appellant is joining in an issue is insufficient to preserve the issue as to
that appellant.
If a party has failed to provide legal argument and citation to authority, we may
deem the issue waived. A cursory, one-sentence joinder without providing any facts or
22.
argument specific to the appellant asserting joinder is insufficient under the rules and
case authority to raise the issue as to that appellant. (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at pp. 363–364.) Therefore, Martinez has waived any issue as
to CALCRIM No. 3472 as to him; and Palomares has similarly waived any issue as to
CALCRIM No. 600 as to him. (People v. Bryant, Smith and Wheeler, supra, at pp. 363–
364.)
A. CALCRIM No. 600
Martinez contends instructing the jury with the “‘kill zone’” language from
CALCRIM No. 600 was prejudicial error because attempted murder requires a specific
intent to kill and firing a gun in the direction of a group of people may evidence lack of
concern for human life, but does not equate to a specific intent to kill. We disagree.
Palomares summarily joins in this argument. Because Palomares was not
convicted of attempted murder, the issue is inapplicable to him.
Factual Summary
Martinez was convicted of the attempted murders of Hassem and Rodriguez. The
evidence established that when Palomares and Caywood walked out to the parking lot,
they ended up in a fight. When Rodriguez walked out to the parking lot, he saw a crowd
in the parking lot and walked toward it. When he saw Palomares in the crowd, the fight
broke out. Palomares and Caywood were next to each other, fighting with several
people. The fight ended when gunshots were heard; Caywood and Palomares ran over to
Martinez’s truck. As Martinez, Caywood, and Palomares were driving away, someone
ran toward the truck and Martinez shot him.
Martinez was charged and convicted of the attempted murders of Hashem and
Rodriguez. The jury was instructed with CALCRIM No. 600, which included the
following language:
“A person may intend to kill a specific victim or victims and at the
same time intend to kill anyone in a particular zone of harm or ‘kill zone.’
23.
In order to convict [Martinez] of the attempted murder of Essam Hashem in
count 2 and/or Christopher Rodriguez in count 3, the People must prove
that [Martinez] not only intended to kill anyone fighting with his friends but
also either intended to kill Essam Hashem in count 2 and/or Christopher
Rodriguez in count 3 or intended to kill everyone in the kill zone. If you
have a reasonable doubt whether [Martinez] intended to kill Essam Hashem
in count 2 and/or Christopher Rodriguez in count 3 or intended to kill
anyone fighting with his friends by killing everyone in the kill zone then
you must find [Martinez] not guilty of the attempted murder of Essam
Hashem in count 2 and/or Christopher Rodriguez in count 3.”
In the discussions on jury instructions between counsel and the trial court, it was
noted that neither defense counsel submitted any jury instructions. When addressing the
verdict forms and instructions to be given on the two attempted murder charges, there
was no objection to the language of the proposed instructions, including CALCRIM
No. 600, that addressed attempted murder. When the final jury instructions discussions
took place, again there was no objection and no request for any modification of the
proposed CALCRIM No. 600.
During closing argument, there was no argument from the prosecutor that
Martinez intended to kill anyone other than Hashem and Rodriguez, or any reference to
kill zone.
Analysis
Despite Martinez’s argument that firing a gun in the direction of a group, as
Martinez did here, does not equate to an intent to kill, it can equate to an intent to kill.
The kill zone language of the instruction is designed to address those situations where a
defendant may intend to kill a specific person, but may also have a concurrent intent to
kill others in the particular zone of risk, which is the “‘kill zone.’” (People v. Bland
(2002) 28 Cal. 4th 313, 329.)
Although Martinez contends the trial court erred in instructing the jury with the
kill zone language from CALCRIM No. 600, the kill zone theory is not a legal doctrine
requiring special jury instructions; rather, “‘it is simply a reasonable inference a jury may
24.
draw in a given case: a primary intent to kill a specific target does not rule out a
concurrent intent to kill others.’” (People v. Stone (2009) 46 Cal. 4th 131, 137.)
It was for the jury to decide whether Martinez intended to kill Hashem and
Rodriguez, either because he specifically intended to kill those two or because he
intended to kill everyone in the particular kill zone. A person who intends to kill can be
guilty of attempted murder, even if he has no specific target in mind. (People v. Stone,
supra, 46 Cal.4th at p. 140.)
Even with the kill zone language in the instruction, the jury was required to find
that Martinez intended to kill before they could return a verdict of guilty of attempted
murder. CALCRIM No. 600 expressly so states, and the trial court so instructed the jury.
Consequently, even if instructing the jury with the kill zone language were error because
it was inapplicable to Martinez’s case, it could not have resulted in the harm complained
of by Martinez; the jury was properly instructed that there must be an intent to kill, not
merely a finding that he fired a weapon into a group of people with no intent to kill. The
jury was told that if they had a reasonable doubt as to whether Martinez had an intent to
kill, they were to return a not guilty verdict on the attempted murder charges. Therefore,
the error, if any, was harmless. (People v. Perez (2005) 35 Cal. 4th 1219, 1233.)
B. CALCRIM No. 3472
Palomares contends the trial court erred prejudicially in instructing the jury with
CALCRIM NO. 3472 because the instruction could be misapplied by the jury in a way
that deprived Palomares of the defense of self-defense. Martinez joins in this issue.
Factual Summary
On October 26, 2012, when counsel and the trial court were discussing jury
instructions, the prosecutor requested CALCRIM No. 3472 be given to the jury, along
with other self-defense instructions. Counsel for Martinez conceded both CALCRIM
Nos. 3471 and 3472 be given to the jury. Shortly thereafter, Martinez’s counsel again
stated that CALCRIM No. 3472 should be included in the jury instructions.
25.
The trial court indicated it would be instructing the jury with the “3470 series” and
Palomares’s counsel responded, “Yes, sir.” The trial court clarified that the series
included CALCRIM Nos. 3470, 3471, 3472, and 3474. Neither defense counsel lodged
an objection to any of these instructions.
The record reflects that the jury was instructed with CALCRIM No. 3472, which
states: “A person does not have the right to self-defense if he or she provokes a fight or
quarrel with the intent to create an excuse to use force.” The jury also was instructed
with that portion of CALCRIM No. 3471 that states: “However, if the defendant used
only non-deadly force, and the opponent responded with such sudden and deadly force
that the defendant could not withdraw from the fight, then the defendant had the right to
defend himself with deadly force and was not required to try to stop fighting or
communicate the desire to stop to the opponent, or give the opponent a chance to stop
fighting.”
Analysis
We reject Martinez’s claim of error for two reasons. First, he failed to provide
legal argument and citation to authority, and we therefore deem the issue waived. A
cursory, one-sentence joinder without providing any facts or argument specific to the
appellant asserting joinder is insufficient under the rules and case authority to raise the
issue as to that appellant. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at
pp. 363–364.)
Second, Martinez conceded in the trial court that the instruction should be issued
to the jury. To the extent the self-defense instructions needed any clarification or
amplification because of the facts of this case, failure to request such in the trial court
forfeits any claim of error. (People v. Moon (2005) 37 Cal. 4th 1, 29.)
As for Palomares, he also acquiesced in the giving of CALCRIM No. 3472. He
now contends the instruction could have been misapplied by the jury. Any claim that the
instruction should have been clarified for the jury has been forfeited by Palomares
26.
because he failed to request any clarification in the trial court and, instead, acquiesced in
the issuing of the instruction. (People v. Moon, supra, 37 Cal.4th at p. 29.)
Regardless, instructing the jury with CALCRIM No. 3472 was not prejudicial.
We evaluate whether an instruction is misleading by reviewing the jury charge as a
whole. (People v. Campos (2007) 156 Cal. App. 4th 1228, 1237.) “The test is whether
there is a reasonable likelihood that the jury understood the instruction in a manner that
violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal. App. 4th 579, 585.)
The correctness of jury instructions is to be determined from the entire charge to the jury.
(People v. Lucas (2014) 60 Cal. 4th 153, 282.) “An instruction can only be found to be
ambiguous or misleading if, in the context of the entire charge, there is a reasonable
likelihood that the jury misconstrued or misapplied its words. [Citation.]” (People v.
Campos, supra, at p. 1237.)
In reviewing a claim of instructional error, we must assume that jurors are
intelligent persons and capable of understanding and correlating all jury instructions that
are given. (People v. Richardson (2008) 43 Cal. 4th 959, 1028.) Juries are presumed to
follow the trial court’s instructions unless the record affirmatively indicates otherwise.
(People v. Coffman and Marlow (2004) 34 Cal. 4th 1, 83.) When considering a claim that
the trial court improperly instructed the jury, a reviewing court must determine whether
there is a reasonable likelihood the jury construed or applied the instructions in an
objectionable fashion. (People v. Osband (1996) 13 Cal. 4th 622, 685–686.) We review
all instructions given, not just the instruction complained of, to determine whether the
jury charge as a whole was correct. (People v. Musselwhite (1998) 17 Cal. 4th 1216,
1249.)
Granted, the jury was informed that a defendant did not have the right to self-
defense if he provoked the fight. The testimony at trial established that it was Rodriguez
who “mad-dog[ged]’” Palomares while the two were in the restaurant and Rodriguez who
made comments to others that “something was gonna happen.” It was Rodriguez who
27.
walked toward the group of men, including Palomares, instead of going directly to his car
when he left the restaurant. The fight broke out at that point. The evidence presented at
trial portrayed Rodriguez as the instigator of the fight, not Palomares, or at most that it
was mutual combat.
The jury also was instructed that if a defendant had a reasonable belief “there was
imminent danger of violence,” he was entitled to use reasonable force to protect himself
or others. (See CALCRIM No. 3470.) CALCRIM No. 3471 also instructed the jury that
a defendant engaged in mutual combat had a right to self-defense. A defendant only has
the right to defend himself using deadly force, however, when his opponent has
responded with deadly force. Here, Rodriguez did not have or use any weapon in his
fight with Palomares except his fists; Palomares, on the other hand, pulled and used a
deadly weapon, a knife.
We are aware that the Fourth District Court of Appeal in People v. Ramirez (2015)
233 Cal. App. 4th 940 (Ramirez) found it to be prejudicial to instruct the jury with
CALCRIM No. 3472 in that case, concluding the jury was led to believe that an initial
aggressor may never defend himself, even against deadly force. Its conclusion was based
in large part on the prosecutor’s argument to the jury; namely, that an aggressor never has
the right to defend himself, even if he intended only to start a fistfight and his opponent
escalated the fight by using deadly force. (Ramirez, supra, at p. 953.)
Such is not the case here. First, the People did not make the same argument as
was made in Ramirez. Second, in the Ramirez case, a fistfight ensued during which the
victim pulled out an object that looked like a gun and had it in his hand, causing the
defendant to pull a weapon and shoot the victim. (Ramirez, supra, 233 Cal.App.4th at
p. 945.) There is no evidence Rodriguez used deadly force that would have warranted
Palomares escalating the fight by using a deadly weapon.
We presume the jury understood and correlated the self-defense instructions, and
applied them to the facts of this case. (People v. Richardson, supra, 43 Cal.4th at
28.
p. 1028.) Under the facts of this case, instructing the jury with CALCRIM No. 3472 was
not prejudicial.
VI. GREAT BODILY INJURY ENHANCEMENT
Palomares contends the section 12022.7 great bodily injury enhancement must be
stricken as the statute is not intended to apply to attempted voluntary manslaughter.
Martinez purports to join in this contention. We summarily dispense with Martinez’s
purported joinder. Palomares’s contention is flawed and we disagree with his position.
We reject Martinez’s claim of error for two reasons. First, there is no indication
he objected to imposition of the section 12022.7 enhancement in the trial court, thereby
forfeiting any claim of error. (People v. Neal (1993) 19 Cal. App. 4th 1114, 1117.)
Second, he failed to provide legal argument and citation to authority, and we therefore
deem the issue waived on appeal as to him. A cursory, one-sentence joinder without
providing any facts or argument specific to the appellant asserting joinder is insufficient
under the rules and case authority to raise the issue as to that appellant. (People v.
Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 363–364.)
We also reject Palomares’s claim of error for two reasons. As with Martinez,
there is no indication Palomares objected to imposition of this enhancement in the trial
court; thus, any claim of error is waived. (People v. Neal, supra, 19 Cal.App.4th at
p. 1117.) Second, his contention is legally flawed.
Palomares relies only on the dissenting opinion in People v. Lewis (1993) 21
Cal. App. 4th 243 to support his position. The prevailing opinion in Lewis and other cases
is that a section 12022.7 enhancement may be appended to an attempted voluntary
manslaughter conviction. In Lewis, the appellate court upheld the imposition of a
section 12022.7 enhancement appended to an attempted manslaughter conviction.
(People v. Lewis, supra, at pp. 247–248.) Subsequent to Lewis, the Legislature has not
modified or amended section 12022.7 to list attempted murder or attempted manslaughter
as exceptions to application of the statute.
29.
In People v. Cross (2008) 45 Cal. 4th 58, the California Supreme Court indicated
the Legislature intended for section 12022.7 to have broad application, with only limited
exceptions set forth in the statute. (People v. Cross, supra, at p. 66, fn.3.) The
exceptions set forth in the statute are murder, manslaughter, arson, and unlawfully
causing a fire; attempts are not an exception. (§ 12022.7, subd. (g).)
In People v. Brown (2001) 91 Cal. App. 4th 256, a section 12022.7 enhancement
appended to a conviction for unlawful practice of medicine was upheld, even though the
victim died and the defendant also was convicted of second degree murder. (People v.
Brown, supra, at pp. 272–273.) Similarly, in People v. Corban (2006) 138 Cal. App. 4th
1111, the appellate court upheld the imposition of a section 12022.7 enhancement
appended to a conviction for child endangerment, even though the defendant also was
convicted of involuntary manslaughter in the death of that same child. (People v.
Corban, supra, at p. 1119.)
In People v. Martinez (2014) 226 Cal. App. 4th 1169, the appellate court upheld the
imposition of a section 12022.7 enhancement to a conviction for furnishing narcotics or
dangerous drugs, even though the defendant also was convicted of manslaughter when
the victim died as a result of ingesting the drugs. (People v. Martinez, supra, at p. 1186.)
There is nothing in the plain language of the statute, and no case cited by
Palomares, that precludes imposition of a section 12022.7 enhancement on an attempted
manslaughter or attempted murder conviction.
30.
DISPOSITION
The judgments are affirmed.
____________________________
KANE, Acting P.J.
WE CONCUR:
_______________________________
DETJEN, J.
_______________________________
PEÑA , J.
31.