P .v. Beltran CA2/4 ( 2014 )

Filed 4/1/14 P .v. Beltran CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B246337
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. BA388010
v. and BA388228)
JOSE BELTRAN,
Defendant and Appellant.
B253289
In re JOSE BELTRAN
(Los Angeles County
On Habeas Corpus. Super. Ct. Nos. BA388010
and BA388228)
APPEAL from a judgment of the Superior Court for Los Angeles County,
Clifford L. Klein, Judge. Judgment affirmed; Petition for Writ of Habeas Corpus
denied.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Jose Beltran was convicted by a jury of one count of second
degree murder (Pen. Code,1 § 187, subd. (a)) with personal use of a firearm
(§ 12022.53, subds. (b), (c), (d)), two counts of attempted murder (§§ 664/187,
subd. (a)) with personal use of a firearm (§ 12022.53, subds. (b), (c), (d)), one
count of shooting at an occupied vehicle (§ 246), and one count of carrying a
loaded handgun not registered to him (§ 12031, subd. (a)(1)). He appeals from the
judgment sentencing him to a prison term of 77 years to life, plus 8 months. We
affirm.
BACKGROUND
In August 2011,2 Juan David Vasquez Loma (Vasquez), Luis Lopez, and
Jonathan Mendoza worked at Garage Pizza in the Silver Lake area of Los Angeles.
Shortly before 5:00 a.m. on August 7, they left the restaurant together at the end of
their shift. They got into Vasquez’s pickup truck; Vasquez was in the driver’s seat,
Mendoza sat next to him, and Lopez was next to Mendoza, by the front passenger
window.
Vasquez, who was driving Lopez and Mendoza home, drove down Effie
Street toward Fountain Avenue. He came to a stop sign a few blocks before Silver
Lake Boulevard. There was a dark green Honda stopped at the stop sign. Vasquez
stopped behind the Honda, waiting for it to proceed. When it did not move after a
few minutes, Vasquez drove around it. As Vasquez passed the car, the driver
looked toward the pickup truck through the open driver’s side window. Mendoza
and Lopez saw the driver’s face. The driver was Latino, with a skinny build, long
face with little bumps on his cheeks and a thin mustache, and his hair was in a buzz
1
Further undesignated statutory references are to the Penal Code.
2
All references to dates relate to the year 2011.
2
cut. There also was a Latina woman with long curly hair in a ponytail in the front
passenger seat.
Vasquez drove to Silver Lake Boulevard, where he made a right turn. A
block later, the Honda pulled up alongside the driver’s side of Vasquez’s pickup
truck. The driver of the Honda turned toward the truck and appeared to be yelling
something, but the occupants of the truck could not hear what he was saying
because the windows of the truck were rolled up. Vasquez said to Lopez and
Mendoza, “What’s up with that guy?” Lopez leaned forward to look, and asked,
“Does he have a gun?” Vasquez said “Yes,” and all three of them leaned back in
their seats as they heard a gun firing and an impact on the window. The Honda
took off as Vasquez lost control of the truck and crashed into a parked car. Lopez
got out of the truck, went to the driver’s side, and opened the door. He saw that
Vasquez had been shot in the head, and called 911. He told the 911 operator that
the person who had shot Vasquez was driving a green Honda, that the driver was a
male Latino, and there was a female passenger.3
Los Angeles Police Officer Robert Alvarado and his partner were the first to
arrive at the scene, at 5:05 a.m. When Officer Alvarado approached the pickup
truck, he saw that Vasquez was somewhat conscious and trying to speak.
Paramedics took Vasquez to the hospital, where he subsequently died. Deputy
Medical Examiner Dr. Ajay Panchal conducted an autopsy, which disclosed that a
bullet entered Vasquez’s left temple area and did not exit his head. Dr. Panchal
recovered the bullet from the right temple lobe of Vasquez’s brain. The bullet was
examined and found to be consistent with a .32 caliber bullet fired from a semi-
automatic weapon.
3
The audiotape of the 911 call was played for the jury at trial; a transcript of the
call was provided to the jury and is part of the record on appeal.
3
Detective Jose Carrillo and his partner responded to the crime scene two
hours after the shooting, where they recovered a .32 caliber spent shell casing.
They left the scene shortly thereafter to interview Lopez and Mendoza at the police
station. Detective Carrillo returned to the crime scene later that afternoon. While
he was there, a car approached him. The man who was driving, Mark Tubalinal,
told him that he may have information about the shooting. Detective Carrillo gave
Tubalinal his card and asked Tubalinal to call him the following day to set up an
appointment to be interviewed. Although Tubalinal testified that he called the
detective sometime after August 7 and left a message, Detective Carrillo never
received the message and did not interview Tubalinal until late September or early
October, after Tubalinal was arrested for residential burglary.4
On August 18, Lopez and Mendoza went to the police station to meet with a
sketch artist to put together a composite sketch of the driver of the green Honda.
The composite sketch was released to the public on August 19, and a few days
later, Detective Carrillo e-mailed an information flyer to the surrounding L.A.P.D.
Divisions, Rampart and Hollywood, on the theory that the person involved in the
shooting was from the surrounding community. That same day, Detective Carrillo
4
Tubalinal testified at trial that he had stopped at a 7-Eleven store on Silver Lake
Boulevard on his way to work at around 5:00 a.m. on August 7. After exiting the store,
he drove on Silver Lake toward Sunset Boulevard and saw two vehicles, a dark green
sedan and a pickup truck, side-by-side in the street, blocking the lane in which he was
travelling. It appeared that the people in the vehicles were talking. Tubalinal pulled into
the opposite lane to pass the vehicles, passing on the left (driver’s side) of the green car.
As he passed, he saw a Hispanic man in the driver’s seat, and heard him yelling, although
he could not understand what he was saying. When he was 100 to 200 yards away, he
heard two or three “pops,” but did not think anything of it until he turned on the
television at work and saw a news report of a shooting on Silver Lake Boulevard. When
he was interviewed by Detective Carrillo, he was shown a photographic lineup, and
identified defendant’s photo as the driver of the green car; he also identified defendant at
trial.
4
received a call from a detective in the Rampart gang enforcement detail, telling
him they had arrested a person who resembled the composite sketch.
The person who had been arrested was defendant. On August 19, Officers
Raymond Flores and Garrett Breegle were on patrol when they conducted a traffic
stop of a green Honda Accord driven by defendant. Defendant told the officers
that he only had a driving permit, and did not have a license. Officer Breegle
searched the car and found a loaded nine-millimeter handgun under the driver’s
seat. When questioned, defendant said that he carried a gun for protection because
he recently was stopped by a rival gang member and had been shot at by La
Mirada gang members; he said he bought the gun from a friend two or three
months earlier.5 The officers arrested defendant.
After receiving the call from the Rampart detective, Detective Carrillo
pulled defendant’s photo, noticed the resemblance to the composite sketch, and put
together a photographic lineup. He put defendant’s photo in the number six
position. He showed the photo lineup to Lopez, asking if he could identify anyone.
Lopez told him that his attention was drawn to numbers two and six, that they
looked a lot alike, and he could not choose between them. Detective Carrillo then
showed the photo lineup to Mendoza, who immediately identified number six
(defendant) as the person who shot Vasquez.
Using a case tracking system on the L.A.P.D. computer, Detective Carrillo
tried to find the woman who was in the car with defendant at the time of the
shooting. He identified a possible person, Diana Villeda. He called her and asked
her to come to the police station. She came in on August 26, and was interviewed
5
Evidence of defendant’s gang membership and other gang evidence was presented
at trial, but is not included in this statement of facts because the jury found the gang
allegations were not true.
5
by Detective Carrillo and Detective Burcher.6 During that interview, Diana7 told
the detectives that defendant had picked her up from her friend’s house and was
driving her home on August 7. They were driving down Effie Street when a black
pickup truck came up behind them and made a right turn in front of them.
Defendant got angry and followed the truck. He was yelling at the person in the
truck. The person driving the truck made a gesture, and defendant got his gun
from under his car seat and fired a single shot at the truck.
The day after Detective Carrillo interviewed Diana, August 27, he conducted
a follow-up at the Los Angeles County jail, and met with defendant. In the
afternoon of August 29, defendant called the Villeda residence and spoke to
Diana’s younger sister, Daisy.8 Defendant told Daisy, “Your sister has to help me
out. She’s the only one that’s going to be able to get me out. . . . If she helps me
out, then they’ll forgive me.” Defendant told Daisy that Diana “has to say that I
wasn’t right there. She knows I was right there. She knows that wasn’t my car.”
When Daisy asked if the police could “lock [Diana] up” as an accomplice,
defendant said, “She could say I’m not -- I wasn’t an accomplice. She could say
that shit. She could fight it. It’s going to be easier for her to fight it than me
fighting it over here, because she’s out there and I’m in here.” Daisy then asked
defendant, “What kind of strap[9] is it?” Defendant responded that his is a nine-
6
The interview was videotaped, and the tape was played for the jury at trial during
the prosecution’s cross-examination of Diana, who testified for defendant; the jury also
was given a transcript, which is a part of the record on appeal.
7
We refer to Diana Villeda by her first name to distinguish her from her sister
Daisy, who was later interviewed by Detective Carrillo.
8
The telephone call was recorded, and the recording was played for the jury; the
transcript of the call, which was provided to the jury, is a part of the record on appeal.
9
Detective Carrillo testified that “strap” is street terminology for a handgun.
6
millimeter Luger. Daisy said, “No, not yours. I know which one yours is. The
other one.” Defendant responded, “A three-two.” Daisy told him that his mother
told her it was “a 24-something,” and defendant said, “I don’t know what the fuck
it was, but it wasn’t my gun. I did not -- it wasn’t my gun. We already know
that.”
At the time of the telephone call, only a few people knew that the gun used
to kill Vasquez was a .32 caliber gun; that information had not been given to the
public.
A few hours after defendant’s telephone call, Diana, Daisy, and their mother
came to the police station at Detective Carrillo’s request. Detective Carrillo and
Detective Burcher interviewed Daisy (with her mother present, because she was 14
years old) and re-interviewed Diana.10 During Diana’s re-interview, Diana told the
detectives that defendant was not the person who did the shooting. She said that
she was at a party in North Hollywood with a man named Roger. They left the
party after Roger got mad and fired a shot at someone. They dropped defendant at
home with Daisy, and Roger and Diana left in Diana’s mother’s car. She said it
was Roger, not defendant, who was the shooter. Detective Carrillo told Diana that
he did not believe her, and said that he knew that defendant told her to lie, because
the calls from jail are recorded. She later admitted that defendant was the person
who shot Vasquez, and that what she had told the detectives during her previous
interview was the truth.11
10
Both interviews were videotaped, but only the recording of Diana’s was played for
the jury; the transcript of Diana’s interview was provided to the jury and is included in
the record on appeal.
11
At trial, Diana testified that Roger May was the shooter, and that she and Roger
were in her mother’s car (a blue Toyota Corolla) at the time.
7
Based upon his interviews with the Villedas, the next day, August 30,
Detective Carrillo pulled up a current photo of Roger May and compared it with
the composite sketch of the shooter. Although he did not see any similarities, he
tried to locate Roger May and created a “Wanted For Questioning” flyer on him.
He also listened to the recordings of defendant’s telephone calls to the Villeda
residence, and heard the August 29 call between defendant and Daisy. After
listening to that call, he contacted Daisy and re-interviewed her; Daisy recanted
what she had earlier told him, and told him that defendant was the shooter.12 Daisy
said that she and Diana were told to lie and name Roger May as the shooter, but
she would not say who had instructed her to lie.13
Defendant was charged by information with one count of carrying a loaded
handgun not registered to him (count 1, § 12031, subd. (a)(1)), one count of
murder (count 2, § 187, subd. (a)), one count of shooting at an occupied motor
vehicle (count 3, § 246), and two counts of attempted premeditated murder
(§§ 664/187, subd. (a)) of Mendoza (count 4) and Lopez (count 5). The
information also included gang allegations (§ 186.22, subd. (b)(1)(C)) as to counts
2 through 5, and personal use of a gun allegations (§ 12022.53, subds. (b), (c), (d))
as to counts 2, 4, and 5.
The jury found defendant guilty of carrying a loaded firearm (count 1) and
shooting at an occupied motor vehicle (count 3). Although the jury acquitted
12
Daisy was a witness for defendant at trial, and testified that she, defendant, Diana,
Roger May, and Roger’s brother and uncle returned to defendant’s house from a party in
North Hollywood in the early morning hours of August 7, and that she and defendant
stayed at defendant’s house while Diana, Roger, and the rest left in her mother’s car.
13
Evidence was presented at trial that in the evening of August 30, defendant’s
mother, sister, his sister’s husband, Daisy, and Diana went to Garage Pizza and asked to
speak to Lopez and Mendoza, to show them a photo and ask if they were sure that the
person they had identified really was the person who attacked them in Silver Lake.
8
defendant of first degree murder, it found him guilty of second degree murder
(count 2). The jury also found him guilty on both attempted murder counts, but
found the attempted murders were not willful, deliberate, and premeditated.
Finally, the jury found the gun allegations to be true and returned a “not true”
finding on the gang allegations.
The trial court sentenced defendant as follows. On count 2, the court
imposed a term of 20 years to life for the murder, plus 25 years to life for the gun
allegation; on count 3, the court imposed (and stayed under section 654) the high
term of 7 years, plus 25 years to life for the gun allegation; on count 4, a
consecutive term of 7 years, plus 25 years to life for the gun allegation; on count 5,
a concurrent term of 7 years, plus 25 years to life for the gun allegation; and on
count 1, a consecutive term of 8 months (one-third the midterm of 24 months), for
a total sentence of 77 years to life, plus 8 months. Defendant timely filed a notice
of appeal from the judgment.
DISCUSSION
Defendant raises five issues on appeal. First, he contends there is
insufficient evidence to support the attempted murder convictions because
defendant fired only a single shot. Second, he argues the trial court gave an
incorrect instruction on attempted murder that allowed the jury to convict on both
counts even if they found defendant only intended to kill one of the attempted
murder victims. Third, he contends that evidence of the gun found in defendant’s
car should have been suppressed. Fourth, he asserts the trial court improperly
increased the base mandatory minimum sentence on the second degree murder
conviction. Fifth, he argues the trial court abused its discretion by allowing the
jury to hear a portion of Diana’s first interview in which the detectives alluded to
defendant’s other bad acts. In addition, defendant has filed a petition for writ of
9
habeas corpus (case No. B253289) in which he contends his trial attorney rendered
ineffective assistance by failing to properly object and preserve for appellate
review the magistrate’s ruling denying defendant’s suppression motion at the
preliminary hearing.
A. Sufficiency of the Evidence to Support Attempted Murder Counts
As defendant correctly observes, “[t]o be guilty of attempted murder, the
defendant must intend to kill the alleged victim, not someone else. The
defendant’s mental state must be examined as to each alleged attempted murder
victim. Someone who intends to kill only one person and attempts unsuccessfully
to do so, is guilty of the attempted murder of the intended victim, but not of
others.” (People v. Bland (2002) 28 Cal. 4th 313, 328; accord, People v. Smith
(2005) 37 Cal. 4th 733, 740.) Defendant argues that, even assuming he intended to
kill Vasquez, there is no evidence he intended to kill Lopez and Mendoza because
he fired a single shot and there is no evidence they were in the “kill zone.” We
disagree.
The fact that defendant in this case fired a single shot at three victims, killing
one, does not preclude a finding that he intended to kill all three. In People v.
Smith, the defendant was convicted of two counts of attempted murder after he
fired a single shot at a vehicle in which a woman was seated in the driver’s seat
and her baby was in a car seat directly behind her. The evidence showed that the
defendant fired from directly behind the car, narrowly missing both the woman and
the baby. (People v. Smith, supra, 37 Cal.4th at pp. 742-743.) The Supreme Court
observed that “the act of purposefully firing a lethal weapon at another human
being at close range, without legal excuse, generally gives rise to an inference that
the shooter acted with express malice. That the shooter had no particular motive
for shooting the victim is not dispositive. . . . Nor is the circumstance that the
10
bullet misses its mark or fails to prove lethal dispositive—the very act of firing a
weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been
on target”’ is sufficient to support an inference of intent to kill. [Citation.]”
(People v. Smith, supra, 37 Cal.4th at p. 742.) The Court held that evidence that
the defendant “purposefully discharged a lethal firearm at the victims, both of
whom were seated in the vehicle, one behind the other, with each directly in his
line of fire, can support an inference that he acted with intent to kill both.
[Citations.]” (Id. at p. 743; see also People v. Chinchilla (1997) 52 Cal. App. 4th
683, 685 [“intent to kill two different victims can be inferred from evidence that
the defendant fired a single shot at the two victims, both of whom were visible to
the defendant”].)
Defendant attempts to distinguish these cases, arguing that Lopez and
Mendoza were not in the line of fire because they were seated in a pickup truck,
which has higher seating than the sedan from which he fired the gun. We are not
convinced. Both Lopez and Mendoza testified that defendant saw them when the
truck drove around the Honda, that they saw defendant when he drove up
alongside the truck, and that Lopez, who was farthest away, saw that defendant had
a gun. The jury reasonably could infer from this evidence that Lopez and Mendoza
were directly in the line of fire when defendant pulled the trigger, and that
defendant intended to kill both of them, as well as Vasquez. Therefore, we
conclude substantial evidence supports the convictions for the attempted murder of
Lopez and Mendoza.
B. Jury Instruction on Attempted Murder Counts
The trial court instructed the jury on attempted murder by giving a modified
version of CALCRIM No. 600, as follows: “To prove that the defendant is guilty
of attempted murder, the People must prove that: one, the defendant took at least
11
one direct but ineffective step toward killing another person; and [¶] two, the
defendant intended to kill a person. [¶] . . . [¶] A person may intend to kill a
specific victim or victims and at the same time intend to kill everyone in a
particular zone of harm or kill zone. In order to convict the defendant of the
attempted murder of Luis Lopez or Jonathan Mendoza, the People must prove that
the defendant not only intended to kill Juan Vasquez, but also intended to kill Luis
Lopez or Jonathan Mendoza, or intended to kill everyone within the kill zone. If
you have a reasonable doubt whether the defendant intended to kill Luis Lopez or
Jonathan Mendoza, or intended to kill Juan Vasquez by killing everyone in the kill
zone, then you must find the defendant not guilty of attempted murder of Luis
Lopez or Jonathan Mendoza.”
Defendant contends this modified kill zone instruction was incorrect because
it allowed the jury to convict him of attempted murder of both Lopez and Mendoza
if the jury found he intended to kill either one of them. He argues the error cannot
be deemed harmless because the jury did not believe the prosecution’s theory of
the case in that the jury found defendant not guilty of first degree murder, and
made “not true” findings on the premeditation and gang allegations.
We agree that the modified instruction is ambiguous. “‘If a jury instruction
is ambiguous, we inquire whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction.’” (People v. Young (2005) 34
Cal. 4th 1149, 1202.) “[W]e view the challenged instruction in the context of the
instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.”
(People v. Houston (2012) 54 Cal. 4th 1186, 1229.) We also “consider the
arguments of counsel in assessing the probable impact of the instruction on the
jury.” (People v. Young, supra, 34 Cal.4th at p. 1202.)
12
In this case, the jury was instructed that “[a] person may intend to kill a
specific victim or victims and at the same time intend to kill everyone in a
particular zone of harm or kill zone.” Referring to this instruction during closing
argument, the prosecutor argued that defendant saw and intended to kill everyone
in the truck. Defense counsel, on the other hand, argued that if the shooter
intended to kill all three men, he would have fired at least three times. In short, the
issue presented to the jury was whether defendant intended to kill everyone in
truck. The fact that the jury rejected some aspects of the prosecution’s theory of
the case – i.e., that defendant acted with premeditation and for the benefit of a
street gang -- does not mean that the jury also rejected the prosecution’s argument
that defendant intended to kill everyone in the truck and instead found that he
intended to kill only one of the passengers. Indeed, given the seating position of
the three men in the truck, all in a line, there is no reasonable likelihood that the
jury misunderstood and misapplied the instruction and found that defendant
intended to kill one of the attempted murder victims but not the other.
C. Suppression of Evidence of Gun
Defendant contends that evidence of the gun found in his car -- which was
discovered in a pre-impound inventory search of the car after defendant was
stopped for a Vehicle Code violation and admitted he did not have a driver’s
license -- should have been suppressed because the decision to impound his car
was unreasonable. We conclude defendant forfeited the issue by failing to
properly raise the matter before the trial court. In any event, his contention fails on
the merits.
To preserve a search and seizure issue for appeal, a defendant is required to
raise the issue before the trial court; a motion to suppress brought before the
magistrate at the preliminary hearing is not sufficient. (People v. Lilienthal (1978)
13
22 Cal. 3d 891, 896; People v. Richardson (2007) 156 Cal. App. 4th 574, 589
[applying Lilienthal rule following unification of municipal and superior courts].)
In this case, defendant moved to suppress the evidence of the gun at the
preliminary hearing. The magistrate denied the motion. On the first day of trial,
during argument on defendant’s motion to sever count 1 from the other counts,
defense counsel stated, “[T]here was a [section] 1538.5 motion heard at the
preliminary hearing as well, and the reason for that traffic stop, just to touch up on
it – I know the court hasn’t had a chance to read that in the entirety – the probable
cause for the traffic stop was an air-freshener that was hanging from the rearview
mirror, and that issue was litigated at the prelim. I have not found any additional
cases to bring to the court’s attention, but I just want to reserve that issue on appeal
for my client should there be a conviction that he can pursue any issues relating to
the unlawful stop with no probable cause of his vehicle on August 19, 2011, and I
would submit on that.”
Defendant contends on appeal that defense counsel’s statement to the trial
court is sufficient to preserve the issue. It is not. Although a defendant “need not
follow strict procedures to bring a motion to suppress, [he] must make the basis for
the motion clear, and must seek and obtain an unambiguous ruling on the motion.”
(Anderson v. Superior Court (1988) 206 Cal. App. 3d 533, 542.) Counsel neither
made the basis for the motion clear nor obtained a ruling from the trial court. We
cannot review a ruling that was never made.
But even if defense counsel’s statement to the trial court were sufficient to
preserve the issue on appeal, we would conclude that, based on the evidence
presented at the preliminary hearing, the decision to impound defendant’s vehicle
was not unreasonable.
At the preliminary hearing, Officer Breegle testified about the circumstances
surrounding the search and seizure. He testified that he conducted a traffic stop of
14
defendant’s car because there was an object hanging from the rear view mirror that
obstructed the driver’s view. That object was an air freshener measuring
approximately four and one-half inches long by two and one-half inches wide, with
the thickness of a thin piece of cardboard. When he asked defendant for his
license, registration, and proof of insurance, defendant told him he only had a
permit and did not have a driver’s license. Officer Breegle decided to issue a
citation for driving without a valid license, and to impound the car. He conducted
an inventory search in preparation for impound, found a loaded handgun under the
driver’s seat, and arrested defendant for possession of a loaded firearm.
There is no question that a police officer is authorized by statute to impound
a vehicle when the officer issues the driver a notice to appear for failure to have a
valid driver’s license. (Veh. Code, § 22651, subd. (p); People v. Hoyos (2007) 41
Cal. 4th 872, 892.) Defendant argues, however, that “[d]espite this statutory
authorization, . . . ‘[t]he impoundment must still serve a community caretaking
function.’” (Citing People v. Williams (2006) 145 Cal. App. 4th 756, 763.)
Defendant’s reliance on People v. Williams is misplaced. In that case, the
police officer stopped the defendant’s car because defendant was not wearing his
seatbelt. The defendant pulled over, parked the car (in front of his residence), and
provided the officer with his valid driver’s license. The officer checked his
computer and discovered there was an outstanding warrant for the defendant’s
arrest. The officer placed defendant under arrest and impounded the car. (People
v. Williams, supra, 145 Cal.App.4th at pp. 759-760.) The appellate court noted
that even though Vehicle Code section 22651, subdivision (h)(1), “authorizes law
enforcement officers to ‘remove’ a vehicle when they make a custodial arrest of a
person ‘driving or in control of’ the vehicle, this statutory authorization does not,
in and of itself, determine the constitutional reasonableness of the seizure.” (Id. at
p. 762.) The court concluded the seizure in that case was unreasonable because the
15
officer “admitted that the car was legally parked in front of appellant’s residence,
appellant had a valid driver’s license, the car was properly registered to a car rental
company, the car had not been reported stolen, and he had no reason to believe
appellant was not in lawful possession of the car.” (Ibid., italics added.)
In this case, at the time Officer Breegle decided to impound defendant’s car,
he did not intend to arrest defendant. Because defendant did not have a valid
driver’s license but nonetheless was driving, there was danger that he would
continue to drive his car. Therefore, it was reasonable for Officer Breegle to
impound the car to ensure that defendant did not get back into his car and drive off
as soon as the officer left.
D. Increased Base Mandatory Minimum Sentence on Murder Count
Section 190, subdivision (a) provides in relevant part: “Except as provided
in subdivision (b), (c), or (d), every person guilty of murder in the second degree
shall be punished by imprisonment in the state prison for a term of 15 years to
life.” Under subdivision (d), the term for second degree murder is increased to 20
years to life “if the killing was perpetrated by means of shooting a firearm from a
motor vehicle, intentionally at another person outside of the vehicle with the intent
to inflict great bodily injury.” (§ 190, subd. (d).) Defendant was sentenced to 20
years to life in prison for the second degree murder of Vasquez. He contends on
appeal that this sentence is unauthorized because the jury was not asked to make
the findings required to impose the increased mandatory minimum term. We find
that the trial court’s failure to instruct the jury and obtain findings necessary to
impose the increased term under section 190, subdivision (d) was harmless beyond
a reasonable doubt.
“Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
16
and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S.
466, 490.) Similarly, any fact that increases the mandatory minimum sentence also
must be submitted to a jury and proved beyond a reasonable doubt. (Alleyne v.
United States (2013) ___ U.S. ___ [133 S. Ct. 2151, 2155].) Failing to submit a
sentencing factor to the jury, however, is not structural error, and does not require
reversal if the error is found to be harmless beyond a reasonable doubt.
(Washington v. Recuenco (2006) 548 U.S. 212, 222; Neder v. United States (1999)
527 U.S. 1, 15.)
Here, although the jury did not make express findings as to defendant’s
intent with regard to Vasquez, by finding defendant guilty of the attempted
murders of Lopez and Mendoza the jury necessarily found that defendant intended
to kill both of them. Having found that defendant intended to kill the two
passengers, it follows that the jury necessarily found he intended to kill Vasquez as
well, since the three men were sitting in a single line, with Vasquez closest to
defendant.
In reaching this conclusion, we acknowledge that the jury was instructed on
the prosecution’s two theories for finding defendant guilty of first degree murder,
including intentional drive-by murder -- defined in section 189 as “any murder
which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict
death” -- and acquitted defendant of first degree murder. But we note that defense
counsel, in his closing argument, erroneously argued that the absence of
premeditation and deliberation required a finding of second degree, rather than first
degree, murder. Thus, the jury could have found that defendant intended to kill
Vasquez, but acquitted him of first degree murder “‘through mistake, compromise,
or lenity.’” (People v. Santamaria (1994) 8 Cal. 4th 903, 911.)
17
In light of the overwhelming evidence presented, and the jury’s verdicts
finding defendant guilty of the attempted murders of Lopez and Mendoza, we find
the failure to submit the element of intent to inflict great bodily injury to the jury
was harmless beyond a reasonable doubt.
E. Admission of Entire Recording of Diana Villeda’s Interview
As noted, Detective Carrillo identified Diana Villeda as the person who may
have been the passenger in the Honda at the time of the shooting, and asked her to
come to the police station to be interviewed. During that first interview, she
described the shooting and said that defendant was the shooter. She later recanted,
and said that Roger May was the shooter. Defendant called her as a witness at
trial, where she testified that May was the shooter. Defense counsel asked her
during direct examination why she told Detective Carrillo during her first interview
that defendant was the shooter. She said that when she was asked to speak with the
detectives, she thought it was about something else; when they asked about the
shooting, she did not say it was May because she felt threatened by May’s family.
The prosecution played the recording of that interview during cross-
examination. Before the recording was played, defense counsel objected to
playing the final minutes of the interview (represented on the last two pages of the
transcript of the recording), when, in response to Diana’s statement that she
thought she had been called in to talk to the detectives about a different incident,
Detective Carrillo said, “Actually I’m going to be honest with you, it’s a series of
things that [defendant] has been doing, it included the shooting on Silver Lake, the
incident in front of your house with your mom and Byron’s brother, the gun he
recently got arrested with in his car, and there is a couple other things. [Defendant]
has been busy, and that is why my partner was asking if he bragged to you about
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any other stuff that he might have gotten away with.” The trial court overruled the
objection, and allowed the entire tape to be played.
On appeal, defendant argues the trial court abused its discretion by allowing
the final part of the interview to be played for the jury, because Detective Carrillo’s
suggestion that defendant had committed other bad acts was irrelevant and
prejudicial. We need not determine whether admission of Detective Carrillo’s
statement was erroneous, because even if we assume error we find the admission
was harmless.
We review the assumed evidentiary error under People v. Watson (1956) 46
Cal. 2d 818, 836, and determine whether it is reasonably probable that, in the
absence of the error, a result more favorable to defendant would have been
reached. (People v. Bacon (2010) 50 Cal. 4th 1082, 1104, fn. 4.) We conclude that
no such probability exists here.
There can be no prejudice caused by Detective Carrillo’s reference to the
shooting on Silver Lake or the gun found in defendant’s car, because those are two
of the acts for which defendant was on trial. The third “bad act” that Detective
Carrillo mentioned was the incident that Diana believed was the reason she had
been asked to speak with the detectives. And that incident not only had been
discussed earlier in the interview, but by Diana’s description, defendant had been
coming to the aid of Diana’s mother.14 Finally, Detective Carrillo’s reference to “a
couple other things” that defendant purportedly had done recently was so vague
and fleeting that it could not have caused prejudice.
14
The interview began with Detective Carrillo asking Diana about a complaint that
apparently was made by the brother of Diana’s baby’s father against defendant. Diana
told the detectives that the father’s family was angry that Diana was asking for child
support, and the brother came to the house and was making a scene. She said that the
brother tried to hit her mother just as defendant was driving by, and that defendant
stopped and got out of the car because he thought the brother had hit her mother.
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F. Habeas Corpus Petition
In his petition for writ of habeas corpus, defendant asserts that his trial
counsel rendered ineffective assistance by failing to bring in the trial court a
motion to suppress the gun found in his car. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a defendant
‘“must establish not only deficient performance, i.e., representation below an
objective standard of reasonableness, but also resultant prejudice.”‘ [Citation.] . . .
[P]rejudice must be affirmatively proved; the record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury
(2003) 30 Cal. 4th 342, 389.) The Supreme Court has instructed that a court
deciding an ineffective assistance claim “need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. The object of an ineffectiveness
claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” (Strickland v.
Washington (1984) 466 U.S. 668, 697; In re Cox (2003) 30 Cal. 4th 974, 1019-
1020.)
We conclude that defendant did not suffer prejudice as a result of his trial
counsel’s failure to bring the motion to suppress in the trial court. In attempting to
show prejudice from his counsel’s purportedly deficient performance, defendant
makes the same argument that he made on appeal, i.e., that evidence of the gun
found in his car should have been suppressed because Officer Breegle’s decision to
impound his car was unreasonable. As we explained in Section C., ante, it was
20
reasonable for Officer Breegle to impound the car in light of the circumstances at
the time he made the decision to impound. Therefore, even if defense counsel had
properly brought the motion to suppress, it would not have been successful.
DISPOSITION
The judgment is affirmed, and the petition for writ of habeas corpus is
denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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