People v. Tolano CA2/5 ( 2022 )

Filed 5/6/22 P. v. Tolano CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B308213
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA145806)
v.
ANTHONY STEVEN
TOLANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Affirmed.
Victoria H. Stafford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Anthony Tolano
of first degree murder (Pen. Code, § 187, subd. (a)1) and
possession of a firearm by a felon (§ 29800, subd. (a)(1)); it found
true the allegation that defendant personally and intentionally
discharged a firearm causing great bodily injury and death
(§ 12022.53, subd. (d)). The trial court sentenced defendant to 50
years to life in state prison. On appeal, defendant challenges as
unconstitutional three CALCRIM jury instructions that address
post-offense conduct that might show an awareness of guilt. We
affirm.
II. BACKGROUND
A. Prosecution Evidence
A house on 56th Street in Maywood was a hangout for
Maywood Locos gang members. Defendant and Elias Jimenez
were members of the Maywood Locos gang.
On the morning of June 14, 2017, Jimenez and his
girlfriend went to the 56th Street house. They were “between
homes,” and the house’s owner gave Jimenez and his girlfriend
permission to stay there for awhile. When they arrived,
defendant was on the porch and followed them into the house
where he spoke with Jimenez. Later, defendant spoke with
Jimenez in the backyard, asking him about his expensive Jordan
shoes and if they would fit defendant.
1 All statutory references are to the Penal Code unless
otherwise indicated.
2
At some point that morning, Jimenez’s girlfriend saw
defendant and Jimenez in the living room. Defendant was
showing Jimenez a small, semiautomatic handgun. Defendant
loaded the gun’s clip with hollow point and “regular” bullets.
Later that morning, Jimenez and his girlfriend went to the
General Relief Office. When they returned, they walked past
Pixley Park. Defendant was in the park with a woman and two
children. He stared at Jimenez who was on the phone and did
not see him.
That afternoon, Maywood Locos gang member A.M.2 sat on
a chair on the front porch of the 56th Street house and talked
with “Belinda.” He was waiting for defendant to return his
bicycle.
At some point, A.M. saw defendant walking toward the
house. Defendant was wearing black gloves, a white shirt, and
shorts. A.M. asked about his bike, but defendant did not
respond. Defendant walked past A.M. and into the house. A.M.
remained outside, talking with Belinda.
About that time, Jimenez’s girlfriend, who was in the
bathroom, heard Jimenez say something like, “‘What?’” followed
by a pop that sounded like a gunshot. As the girlfriend was
opening the bathroom door, she heard a second gunshot. When
the door was open, she saw Jimenez on his knees; there was
blood coming from his chest. The girlfriend turned and saw a
hand and a small semiautomatic gun “in the doorway.”
When A.M. heard the first gunshot he walked inside the
house to see what had happened. He saw defendant holding a
2 Jimenez’s girlfriend testified that A.M. was a Maywood
Locos gang member. A.M. testified that he was a former gang
member.
3
handgun he believed to be semiautomatic. Defendant was aiming
the gun down. Defendant then fired a second shot. A.M. ran
outside.
Defendant came out of the house after A.M. and said to
him, “‘I love you, [A.M.’s gang moniker], I love you.’” A.M. did not
see the gun and speculated that defendant had “put it in his
waist.” Defendant crossed the street to his waiting girlfriend and
baby and they walked away.
A.M. went back inside the house and saw Jimenez on the
floor. Within seconds Jimenez’s girlfriend appeared and asked
what had happened to Jimenez. A.M. said he did not know and
ran home. He did not wait to speak with the police because he
was afraid that he would have to testify.
Jimenez died from a gunshot wound to the chest. Two
hollow point bullets were recovered during his autopsy.3 Two
expended cartridge cases were found near his body.
At about 10:09 p.m. the next day, Imperial County Sheriff’s
Office Deputy Pedro Velasquez stopped a vehicle with a defective
headlight about 30 miles from the Mexican border. Defendant’s
mother was driving, his father was in the front passenger seat,
and defendant was in the back passenger seat.
Defendant told Deputy Velasquez that they were going to
visit family in Calexico. Defendant’s mother consented to a
search of the vehicle. Deputy Velasquez ordered defendant to get
out of the car and attempted to pat him down. Defendant acted
in a way that caused the deputy to fear that he might be reaching
for a weapon.
3 A third bullet from a prior shooting was also recovered
during the autopsy.
4
Deputy Velasquez grabbed defendant’s arm and put it
behind his back. Defendant ran and threw a black object he had
retrieved from an area on his waistband. Deputy Velasquez
pursued and caught defendant. Deputy Velasquez asked
defendant what he had thrown. Defendant responded, “[W]eed.”
Deputy Velasquez searched the area where defendant had
thrown the black object and found a gun. He also recovered a
holster that was attached to defendant’s belt. A Los Angeles
County Sheriff’s Department forensic identification specialist
determined that two of the bullets recovered from Jimenez’s body
and the two cartridge cases found near his body were fired from
the gun Deputy Velasquez found.
On August 9, 2017, Los Angeles County Sheriff’s
Department detectives interviewed A.M. Initially, he lied about
being at the scene of the shooting and seeing defendant shoot
someone, but eventually told the truth by the end of the
interview. A.M. received no benefit in exchange for his testimony
from the prosecution or the detectives other than the detectives’
efforts to make sure that no Maywood Locos gang members were
on the bus on which he traveled to and from court.4
A.M. also lied at the preliminary hearing when he testified
that the detectives forced him “to say it was . . . defendant.” At
that time, he was out of custody and did not want Maywood Locos
gang members to know he had identified defendant as Jimenez’s
killer.
According to A.M., he was “marked for death” for violating
the main gang rule: no testifying against a fellow gang member.
4 At the time of trial, A.M. was in Immigration Customs
Enforcement custody, facing deportation based on a prior robbery
conviction.
5
He was willing to testify at trial and tell the truth because he had
known Jimenez’s mother for a long time and it broke his heart to
see her alone, without her son. He was risking his life so that
Jimenez’s mother received justice.
B. Defense Evidence
B.H. and his mother lived across the street from the house
on 56th Street in Maywood. On June 14, 2017, B.H. was in his
bedroom when he heard a gunshot. He looked out the front door
and saw a couple with a stroller.
B.H.’s mother heard gunshots and looked out her front
door. She saw a couple with a baby stroller go by her house. The
man was about 5’ 9’’ tall and wore a white t-shirt and shorts.5
Defendant testified that he was not an official member of
the Maywood Locos gang, but “claimed” the gang. He knew A.M.
was a “tweaker”—someone who used drugs. A.M. was an
acquaintance and not a friend. He was “somewhat” friends with
Jimenez, whom he regarded as “the older homie.” Defendant did
not have a feud with Jimenez.
On the morning of June 14, 2017, defendant traveled from
his home in San Bernardino to visit his grandparents in
Huntington Park and friends in Maywood. His wife and children
were not with him.
At about 7:00 a.m., defendant stopped by the 56th Street
house “for like a brief second.” Jimenez and his girlfriend arrived
at the same time and defendant greeted Jimenez. Defendant
spoke with Jimenez about his nice shoes and then left to go to his
5 In the prosecution’s case, Deputy Velasquez testified that
his report described defendant as six feet tall.
6
grandmother’s house. He never entered the house or the
backyard and he did not shoot Jimenez.
Later that night, defendant received a text from J.F. an
“O.G.,” telling him that he needed to talk to him. Defendant
responded that he was at his grandmother’s house in Huntington
Park. J.F. arrived there at 11:30 p.m., gave defendant the gun
used in Jimenez’s shooting, and ordered him to get rid of it.
Defendant did not know the gun had been used in a shooting, but
suspected it was “hot.” He did not want the assignment, but he
had no choice—“[t]hey tell you to do something, you got to do it.”
When Deputy Velasquez stopped the car defendant’s
mother was driving in Imperial County, defendant was in
possession of the gun used to shoot Jimenez. Defendant ran and
tossed the gun because he did not want to go to jail. He never
lied to Deputy Velasquez and did not intend to leave the country.
After he was arrested for possessing the gun, he was bailed out
the next day and went to his mother’s house in Victorville. Had
defendant intended to leave the country he could have done so
then.
After defendant was arrested for Jimenez’s shooting, a
detective asked him when he was last in Maywood. Defendant
understood the question to concern when he last lived there and
truthfully answered three years prior. The interrogation was
recorded, and the prosecution played the part of the recording
that concerned when defendant was last in Maywood.
As reflected on the recording, the detective asked defendant
if he was from Maywood. Defendant responded that he was. The
detective asked, “But I don’t think you live there anymore. Its
[sic] been awhile since you lived there?” Defendant responded, “I
haven’t been in Maywood in like four years[,] sir.” Shortly
7
thereafter, the detective asked defendant, “Alright, so when’s the
last time you were in the city of Maywood then?” Defendant
responded, “Fuck . . . Like fucken three years ago.”
III. DISCUSSION
Defendant contends the trial court erred when it instructed
the jury with three jury instructions that address post-offense
conduct that might show an awareness of guilt: CALCRIM
No. 362—Consciousness of Guilt: False Statements6, CALCRIM
No. 371—Consciousness of Guilt: Suppression and Fabrication of
6 The court instructed the jury with CALCRIM No. 362 as
follows:
“If the defendant made . . . a false or misleading statement
before this trial relating to the charged crime, knowing the
statement was false or intending to mislead, that conduct may
show he was aware of his guilt of the crime and you may consider
it in determining his guilt.
“If you conclude that the defendant made the statement, it
is up to you to decide its meaning and importance. However,
evidence that the defendant made such a statement cannot prove
guilt by itself.”
8
Evidence7, and CALCRIM No. 372—Defendant’s Flight8.
According to defendant, those instructions were “argumentative
in favor of the prosecution, [they] allowed the jury to make
irrational inferences, and [their] language presumed [his] guilt.
Because the instruction[s were] slanted in favor of the
prosecution, [they] reduced the prosecution’s burden of proof in
violation of [his] Fourteenth Amendment right to due process and
proof beyond a reasonable doubt and his Sixth Amendment right
to a jury verdict.” (Fn. omitted.)
The Attorney General argues defendant has forfeited his
challenges to these instructions because he did not object to them
in the trial court. Assuming, without deciding, that defendant
7 The court instructed the jury with CALCRIM No. 371 as
follows:
“If the defendant . . . tried to hide evidence, that conduct
may show that he was aware of his guilt. If you conclude that the
defendant made such an attempt, it is up to you to decide its
meaning and importance. However, evidence of such an attempt
cannot prove guilt by itself.”
8 The court instructed the jury with CALCRIM No. 372 as
follows:
“If the defendant fled or tried to flee immediately after the
crime was committed or after he was accused of committing the
crime, that conduct may show that he was aware of his guilt. If
you conclude that the defendant fled or tried to flee, it is up to
you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot
prove guilt by itself.”
9
has not forfeited his challenges (see § 12599), any error in
instructing the jury was harmless under either the People v.
Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California
(1967) 386 U.S. 18, 24 standard for prejudice in light of the
overwhelming evidence of defendant’s guilt.
Jimenez’s girlfriend testified that defendant was at the
56th Street house the morning of Jimenez’s shooting. He had a
small handgun that he showed Jimenez and loaded, in part, with
hollow point bullets. She further testified that she saw the
shooter’s hand holding a small handgun. Jimenez was shot with
hollow point bullets.
A.M., defendant’s fellow Maywood Locos gang member,
testified that he was on the front porch of the 56th Street house
when he heard the first gunshot. He went inside where he saw
defendant holding a handgun, aiming downward, and then firing.
A.M. identified defendant as the shooter even though to do so
violated the main gang rule of not testifying against fellow gang
members and marked him for death.
Defendant admitted that he was at the 56th Street house
the morning of Jimenez’s shooting. He was found in possession of
the firearm used to shoot Jimenez.
9 Section 1259 provides, in relevant part, “The appellate
court may . . . review any instruction given, refused or modified,
even though no objection was made thereto in the lower court, if
the substantial rights of the defendant were affected thereby.”
10
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
11