People v. Silva CA2/3

Filed 11/14/14 P. v. Silva CA2/3
Opinion following second remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B225127
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA062172)
v.
JESSE SILVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Cynthia L. Ulfig, Judge. Affirmed in part, vacated in part, and remanded with directions.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Allison
H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Jesse Silva appeals from the judgment entered following his convictions
by jury on two counts of first degree murder (Pen. Code, § 187;1 counts 1 & 3), each with a
multiple murder special circumstance (§ 190.2, subd. (a)(3)) and a gang special
circumstance (§ 190.2, subd. (a)(22)), and on count 4 – attempted willful, deliberate, and
premeditated murder (§§ 664,187) with, as to each of the above offenses, findings
appellant personally, and a principal, used a firearm, intentionally discharged a firearm,
and intentionally discharged a firearm causing great bodily injury or death (former
§ 12022.53, subds. (b), (c), (d) & (e)(1)).
Appellant also appeals from the judgment entered following his convictions by jury
on count 2 – discharge of a firearm with gross negligence (§ 246.3, subd. (a)) and count 5
– assault with a firearm (former § 245, subd. (a)(2)) with personal use of a firearm (former
§ 12022.5, subd. (a)).
The jury found each of the above offenses was committed for the benefit of a
criminal street gang (former § 186.22, subd. (b)(1)), and the trial court found appellant
suffered a prior felony conviction (§ 667, subd. (d)). The trial court resentenced appellant
to prison for life without the possibility of parole, plus 80 years to life. After
reconsideration of the matter in light of People v. Gutierrez (2014) 58 Cal.4th 1354(Gutierrez),2 we affirm the judgment in part, vacate the judgment in part, and remand the
matter for resentencing with directions.
1
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
2
This is the third opinion filed in this case. After the first opinion (People v. Silva
(May 16, 2012, B225127) [nonpub. opn.] (Silva I)), our Supreme Court granted review and
transferred the matter to this court for reconsideration in light of Miller v. Alabama (2012)
567 U.S. ___ [132 S. Ct. 2455] (Miller), a decision rendered after Silva I. Following
reconsideration, we rendered our decision in People v. Silva (Dec. 28, 2012, B225127)
[nonpub. opn.] (Silva II)). Our Supreme Court granted review and later transferred the
matter to this court with directions to vacate our decision and reconsider the matter in light
of Gutierrez, a decision rendered after Silva II. We vacate our decision in Silva II.
2
FACTUAL SUMMARY
1. People’s Evidence.
a. The 2007 Murder of Albert Molina, and Grossly Negligent Firearm Discharge
(Counts 1 & 2).
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established in about 2005, Jovani Leiva met appellant,
Michael DeLeon, and Marco Flores in Branford Park in Los Angeles County. Leiva knew
appellant as Cholo (the Spanish word for gangster), DeLeon as Dreamer, and Flores as
Diablo. Leiva knew DeLeon was a member of the Pacoima Trece (PT) gang and Flores
was a member of the Orcas gang.
During the late hours of June 15, 2007, Leiva drove his car about two miles from
Branford Park to a party at a house or apartment building at 12462 Osborne in Los Angeles
County. The car had four passengers: appellant, DeLeon, Flores, and someone named
Lalo. About 10:00 p.m., Leiva parked around the corner from the party. The party was
being held in a gated area outside the house. While Leiva and Flores were walking to the
party, Leiva saw the handle of a gun protruding from Flores’s waistband.
The above five persons were joined by a sixth, and the group approached the gate.
However, prior to entry, guests were required to submit to a patdown weapons search
conducted by Albert Molina (a decedent) and David Delgado. Appellant and three
companions refused to be searched and became boisterous. They yelled “Fuck Vineland”
and “Veggies.” Veggies was a derogatory term for the Vineland Boys gang. DeLeon
yelled “Paca Trece” and Flores yelled “Orcas.”
Appellant had one hand inside his shirt near his waist and his other hand holding a
40-ounce beer bottle. He was aggressive and told Delgado, “We are going to get in.”
Delgado replied, “no, you are not.” Appellant threw the bottle at the gate, breaking the
bottle. Appellant punched one of the people conducting the search and the gate was
closed.
3
Leiva saw Flores remove a black revolver from his waistband and hand it to
DeLeon. Leiva saw DeLeon fire the revolver three to five times in the air. Delgado
testified it was appellant who fired the gun in the air, and appellant fired the gun once or
twice. According to Leiva, appellant grabbed the gun from DeLeon and fired it three to
five times towards the gate and crowd. When the shooting occurred, appellant, DeLeon,
and Flores were saying their gang names. Before and during the shooting, the three were
calling out gang names, including Pacoima. A bullet struck Molina in the chest, killing
him.
After the shootings, Leiva, appellant, DeLeon, Flores, Lalo, and someone named
Dan ran to and entered Leiva’s car. Leiva drove, Flores was in the front passenger seat,
and the rest were in the backseat. Leiva was driving them to Branford Park while they
were trying to empty the gun. Flores took bullets from the barrel and threw them out the
front passenger window. Leiva dropped off everyone at the park. At 1:10 a.m., on June
16, 2007, police arrived at the shooting scene. No bullet casings were present, a fact
consistent with use of a revolver.
Los Angeles Police Officer Michael Yoro, a gang expert, testified PT was a
criminal street gang. Paca was a shortened version of Pacoima. The addresses of 12462
Osborne and 8737 Roslyndale were in territory claimed by PT. PT members congregated
at Branford Park. The Vineland Boys gang and Sanfer gang were rival gangs that PT
hated the most. Appellant’s driver’s license reflected he had drawn a line through the
letter V in his name. This indicated appellant perceived the Vineland Boys gang as his
enemy. DeLeon and Flores were PT members.
Yoro opined it was not uncommon for members of the Pacoima Cayuga Street
Locos (PCSL) gang to be friendly with PT members. If a PCSL member kept company
with a PT member, it would not be unusual for the PCSL member to claim membership in
PT before committing crimes. Disrespect towards a gang or gang member would not go
unanswered, and the result could range from assault to homicide. The prosecutor posed a
hypothetical question which essentially was based on evidence as to the killing of Molina
and, in response, Yoro opined to the effect the Molina killing was committed for the
4
benefit of, at the direction of, or in association with, PT. The killing was retaliation for
persons preventing “members of our gang in which is a [PT] gang” (sic) from entering a
party in their own neighborhood and territory and daring to search them knowing they
could be armed.
b. The 2008 Murder of Johnny Lopez, Attempted Murder of Marvin Maldonado,
and Assault with a Firearm on Maldonado (Counts 3 – 5).
On June 8, 2008, before 1:30 p.m., Johnny Lopez (a decedent) and Marvin
Maldonado were drinking near Branford Park. They finished drinking about 12:50 p.m.
About 1:30 p.m., they encountered appellant standing in the driveway of his home at 8737
Roslyndale in Arleta. Lopez approached appellant and asked where he was from.
Appellant replied he was from PT. Lopez asked, “ ‘So that’s what’s up?’ ” Appellant
indicated he recently had been released from juvenile hall and was having difficulty
adjusting to society. After talking with appellant for no more than five minutes, Lopez and
Maldonado left. Lopez returned to appellant and told him that he never asked Lopez
where Lopez was from. Lopez and Maldonado again walked away.
After walking about 200 feet from appellant’s house, Maldonado saw appellant in
the street riding a bright-colored bicycle towards them. The bicycle was probably blue.
It was depicted in a photograph, People’s exhibit No. 3. Lopez entered the street and
approached appellant, who had stopped in the street. Maldonado testified Lopez said to
appellant something to the effect Lopez “had spoken with his brother and that everything
was cool.”
During direct examination of Maldonado, the prosecutor began a question by
commenting Maldonado had testified that after the defendant was on his bicycle, Lopez
told “the defendant [appellant] . . . that he just talked to his brother.” Maldonado
interrupted the prosecutor, stating, “I knew it was him.” The prosecutor asked if
Maldonado knew “it was the same defendant” and Maldonado replied yes. Maldonado
knew “it wasn’t some other guy. . . .”
5
Appellant asked Lopez where Lopez was from, and Lopez replied San Fer.
Maldonado testified appellant then removed a silver semiautomatic handgun with a black
grip from his waist, brandished the gun, and shot Lopez about six times. Lopez in fact
sustained four gunshot wounds and was mortally wounded. Appellant turned the gun
toward Maldonado and brandished it towards him. Maldonado fled. Appellant shot him in
the back. During the shootings, appellant was wearing a white T-shirt, blue jeans, and a
black glove on his left hand, the hand which held the gun. After the shootings, appellant
rode away on the bicycle.3
About 1:30 p.m., on June 8, 2008, Heldrych Castillo was in his bedroom when he
heard five or six gunshots. About a minute later, he looked out his window and saw a male
juvenile quickly pedaling a bright blue BMX bicycle on Truesdale towards Canterbury.
The juvenile was wearing a black glove on his right hand, which was holding a small silver
handgun. Castillo went outside and saw a gunshot victim lying in the street. Castillo
called 911 and described the shooter as a bald Hispanic wearing a white shirt and riding a
blue bicycle. Jesus Ayungua, appellant’s cousin, told a detective that on an occasion prior
to June 8, 2008, Ayungua had seen a blue bicycle at appellant’s house. The bicycle was
the one, or looked like the one, depicted in People’s exhibit No. 3. Police recovered seven
.380-caliber bullet casings from the shooting scene. The location of the casings was
consistent with the use of a firearm which ejected casings near Lopez.
3
On June 8, 2008, police showed Maldonado a photographic folder (People’s exh.
No. 15A). It contained a photograph of appellant. At the time, Maldonado selected a
photograph depicting someone but said “he was older.” The photograph Maldonado
selected did not depict appellant. On June 10, 2008, police showed Maldonado another
folder (People’s exhibit 16A). He selected photograph No. 2, which depicted appellant,
and Maldonado wrote, “Suspect looks like picture number two. I’m positive this is the
suspect who shot me and Johnny . . . .” At appellant’s preliminary hearing, Maldonado
was shown People’s exhibit No. 18 (a duplicate of People’s exhibit 15A), and he selected
from People’s exhibit No. 18 appellant’s photograph as depicting the person who shot
Lopez. The photograph of appellant in People’s exhibit No. 16A was taken on June 9,
2008. The photographs of appellant in People’s exhibit Nos. 15A and 18 were taken some
time in 2007.
6
On June 8, 2008, Joyce Salgado, appellant’s then-girlfriend, spoke with him while
he was in police custody, and police recorded the conversation. The following occurred:
“[Appellant]: You know where I hide the bullets (Inaudible). [¶] [Salgado]: Uh-huh. [¶]
[Appellant]: Why you know where [inaudible] when you go home, huh? (Inaudible
Whispering) try to [inaudible] as soon as possible. Put the . . . bullets in the bag . . . . [¶]
[Salgado]: Uh-huh. Put gun clips . . . . [¶] [Appellant]: And try to get it out . . . put
gloves. And then that way I don’t get caught. Put gloves, so you don’t get shit on your
hands, and clean the gun, please. Like that if they put it . . . back in the wall (Inaudible),
and they just . . . try to throw it somewhere the [sic] going to be looking for it already at
my mom’s place. If you could do it. If not, then just leave it right there where it’s at.
Okay? [¶] [Salgado]: Uh-huh.”
A detective testified that, during the conversation, appellant said “behind the wall in
his room” and “behind the wall behind the shelf.” Appellant said he was going to get
locked up “for what happened,” “[f]rom that shooting,” and “they’re trying to blame it on
me” “[b]ecause, supposedly, I look like Michael.”
On June 9, 2008, police searched appellant’s house. During the search, Ayungua
told a detective that on June 6, 2008, appellant showed Ayungua a gun and the gun was
hidden within the walls. The bicycle depicted in People’s exhibit No. 3, a white T-shirt,
and blue jeans were found behind a brick wall in the backyard of appellant’s house.
On July 18, 2008, Los Angeles Police Detective Heather Gahry listened to the tape
of the conversation between appellant and Salgado. As a result, Gahry searched
appellant’s room, which was a renovated garage. Gahry found a black-knit glove in an
opening in a wall in the room. The glove had the white letters P, C, S, and L written in
sequence on the glove’s four fingers, respectively. The letters stood for Pacoima Cayuga
Street Locos.
7
Los Angeles Police Officer Fernando Avila, a PCSL gang expert, testified PCSL
was a criminal street gang. PCSL derived from PT, and the two gangs were allies.
Appellant was a PCSL member and bore its gang’s tattoos.4 Avila testified PCSL
members advanced in the gang’s hierarchy by “putting in work,” i.e., committing certain
crimes which benefitted the gang. When PCSL members murdered a rival gang member,
this demonstrated loyalty to PCSL.
The prosecutor posed a hypothetical question based on evidence of the shooting of
Molina and the shootings of Lopez and Maldonado. In response, Avila opined the only
reason the June 8, 2008, murder victim was shot was he said San Fer, the killing was
committed for the benefit of PCSL, and the fact the shooter associated with PT would let
all other gangs know “guys from Pacoima are going to put in work, especially . . . murder.”
The shooting of the decedent’s friend who merely had accompanied someone who had said
San Fer would benefit the PCSL and PT gangs.
2. Defense Evidence.
During appellant’s cross-examination of various People’s witnesses, appellant
marked for identification, inter alia, defense exhibits A, D, and E. Defense exhibit A was a
photograph depicting DeLeon. Defense exhibit D was a “six-pack.” Defense exhibit E
was an admonition form.
After the People’s presentation of evidence, and outside the presence of the jury,
appellant indicated there would be no “defense witnesses.” Later, in the presence of the
jury, the People moved that their exhibits be admitted into evidence. The court admitted
them into evidence, then asked appellant’s counsel if there was “any defense.” Appellant’s
counsel replied, “No, your Honor. We rest.” However, the court then asked if appellant’s
counsel wanted admitted into evidence defense exhibits A, D, and E. Appellant’s counsel
4
Yoro testified appellant had a tattoo with the letters PCSL on his right forearm, a
tattoo with the letters CSL on his left hand, and three dots in the corner of one of his eyes.
The three dots meant, “my crazy life.” Avila testified the tattoos like the letters PCSL
were a way of identifying oneself as a member of a criminal street gang.
8
replied, “I so move” and those three defense exhibits were admitted into evidence. The
court later advised the jury the parties had rested.
We will present additional facts below where appropriate.
ISSUES
Appellant claims: (1) the trial court erred by denying his severance motion, (2) the
court erroneously denied his Wheeler motion, (3) the gang experts’ testimony was
inadmissible, (4) the court erroneously refused to instruct on voluntary intoxication as to
count 1, (5) there was insufficient evidence supporting the gang special circumstance
finding as to count 1, (6) the court improperly limited appellant’s cross-examination of
Yoro, (7) CALCRIM No. 736 is constitutionally defective, (8) cumulative prejudicial error
occurred, (9) the court improperly denied appellant’s motion for disclosure of juror
identification information, (10) appellant’s sentence constituted cruel and unusual
punishment under the Eighth Amendment, (11) appellant’s sentence constituted cruel or
unusual punishment under the state Constitution, (12) imposition of a Three Strikes law
sentence as to count 4 was improper, and (13) his section 1202.45 parole revocation fine
must be stricken.
DISCUSSION
1. The Trial Court Properly Denied Appellant’s Severance Motion.
a. Pertinent Facts.
Appellant filed a pretrial motion to sever counts 1 and 2 (the 2007 offenses) from
counts 3 through 5 (the 2008 offenses), and the People filed an opposition.5 After
argument on the motion, the court denied it on the following grounds. The murders were
5
In the opposition, the People argued, inter alia, as follows. The 2007 and 2008
offenses were not remote from each other because appellant was in custody on an
unrelated charge from November 2007 through May 2008. Appellant claimed he was with
DeLeon at the time of the 2007 and 2008 incidents. The 2007 and 2008 offenses each had
the modus operandi that appellant and his gang were disrespected and he retaliated by
fatally shooting the offender. Evidence of the 2007 murder and the 2008 murder and
attempted murder was mutually cross-admissible under Evidence Code section 1101,
subdivision (b).
9
of the same class of crimes. In both sets of crimes, appellant was identified as the shooter
and the victims were shot multiple times. Both sets of offenses were gang-related and
involved the same codefendant. Evidence was cross-admissible. Expert testimony on
firearms, gunshot residue, and gangs was cross-admissible. One murder would not inflame
the jury with respect to another murder because the victims of both murders were young
males.
Moreover, the court indicated neither set of offenses was substantially weaker than
the other. In this regard, as to the 2007 offenses, appellant was identified by an
accomplice and an eyewitness, and appellant was inculpated by his own admission. As to
the 2008 offenses, appellant was identified as the shooter by an eyewitness who had an
opportunity to observe appellant in broad daylight without threat of bodily harm when the
eyewitness initially conversed with the victim and appellant. The eyewitness and victim
were not alarmed when the defendant later approached them, so there was no question
appellant was the shooter. Joinder promoted judicial economy. Section 954.1 expressly
provided cross-admissibility was not required before jointly charged offenses could be
jointly tried.
Reiterating evidence would be cross-admissible, the court stated, “[Appellant’s]
own statement, as well as them being gang-related incidents, would provide a basis for
[Evidence Code section] 1101(b) evidence to be admitted into each trial anyway.”
b. Analysis.
Appellant claims the trial court erroneously denied his severance motion. We
disagree. The law prefers consolidation of charges. (People v. Manriquez (2005)
37 Cal.4th 547, 574.) When the statutory requirements for joinder are met, a defendant
must clearly show prejudice to establish an abuse of discretion when a trial court fails to
sever offenses. The pertinent factors to be considered are whether (1) the evidence of the
crimes would be cross-admissible in separate trials, (2) some of the charges are unusually
likely to inflame the jury against the defendant, (3) a weak case has been joined with a
strong case, or with another weak case so that the total evidence on the joined charges may
10
alter the outcome of some or all of the charged offenses, and (4) any one of the charges is a
death penalty offense, or whether joinder converts the matter into a capital case.
A determination evidence is cross-admissible ordinarily dispels any inference of
prejudice. (People v. Marshall (1997) 15 Cal.4th 1, 27-28 (Marshall).) (We refer to the
above four factors as the Marshall factors.) Our review of a trial court’s ruling on a
severance motion is based on the record as it existed at the time of the ruling. (People v.
McKinnon (2011) 52 Cal.4th 610, 630.) Finally, even if a trial court has not abused its
discretion in denying a pretrial severance motion, the judgment must be reversed if the
defendant shows joinder resulted in gross unfairness amounting to a denial of due process.
(People v. Macklem (2007) 149 Cal.App.4th 674, 698.)
In the present case, appellant concedes the statutory requirements for joinder were
met. Appellant therefore has the burden of demonstrating prejudice. There was ample
evidence each set of 2007 and 2008 offenses included a gang-related homicide in which
appellant shot a young person(s), and shot at each decedent multiple times. As the court
suggested in its comments concerning gang-related incidents and Evidence Code section
1101, subdivision (b), this gang-related evidence was mutually cross-admissible on the
issues of appellant’s gang-related motive to commit said offenses and intent to kill, and the
evidence of the 2007 offenses was cross-admissible to prove premeditation and
deliberation as to the 2008 murder. The above indicated cross-admissibility of the
evidence dispels any inference of prejudice.
Moreover, as indicated by the trial court, the charges were similar and, as appellant
concedes, none were unusually likely to inflame the jury against appellant. None involved
a weak case. None was a death penalty offense, nor did joinder convert this case into a
capital one. In sum, none of the Marshall factors compels a conclusion the denial of
appellant’s severance motion was an abuse of discretion. Nor does the record of the events
after the denial demonstrate joinder resulted in gross unfairness amounting to a denial of
appellant’s right to due process. The trial court did not err, constitutionally or otherwise,
by denying appellant’s severance motion.
11
2. The Court Trial Properly Denied Appellant’s Wheeler Motion.
a. Pertinent Facts.
Voir dire of prospective jurors6 revealed jurors 2575, 2937, 7351, and 4296 were
married women, except for Juror 4296, who was a single woman. Only Juror 2575 had
jury experience. All indicated they would be impartial jurors.
The prosecutor exercised peremptory challenges as to the above four jurors. The
parties concede the prosecutor challenged a total of 10 jurors. After the prosecutor
challenged Juror 4296, appellant brought a Wheeler7 motion on the ground the prosecutor
challenged the above four jurors because they were Hispanic women. The court replied,
“Okay. People.”
The prosecutor subsequently indicated as follows. When the oath was given to
jurors, Juror 2575 did not say “I do.” The prosecutor noticed this because Juror 2575 had
been giving the prosecutor “hard looks from the very beginning.” The prosecutor
commented, “if the court recalls, I asked her if she was in any way mad at me or if I had
done anything. Maybe it was just her way of thinking about things. She said no, but she
continued the looks.” During voir dire of a fireman, Juror 2575 rolled her eyes at the
fireman at least three times. The prosecutor commented the prosecutor wrote “all of this
down as I caught it going because I kept an eye on her because I couldn’t, at first,
understand why I was getting such dirty looks.” The prosecutor did not believe Juror 2575
was a Hispanic female, and Juror 2575 may have been an African-American.
6
Subsequent references to jurors are to prospective jurors. Prior to voir dire, the
court administered the oath to jurors, and the reporter’s transcript reflects they collectively
replied, “I do.”
7
References to Wheeler are simultaneously to People v. Wheeler (1978) 22 Cal.3d
258, and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69], except where Batson is
referred to expressly.
12
Juror 2937 initially had said she was from Pacoima and knew of no gangs there, but
when the prosecutor individually questioned her, Juror 2937 changed and indicated she
was not involved in gangs. Her brother or brother-in-law was incarcerated. The trial court
stated Juror 2937 was very defensive when the prosecutor questioned her.
As to Juror 7351, the following occurred: “[The Prosecutor]: . . . I believe [Juror
7351] was the juror that explained about being jumped by gang members when she was in
high school, and she seemed to say that she may have just gone to the wrong place to eat,
but we talked to her about being fair because she had been jumped. She said, well, I have
friends that are gang members, too. [¶] I tried to question her about her friends, and she
said her sister had dated a gang member. When I asked her how she felt about that, she
says well, it was love. [¶] And just the association and the friendships that are gathered
from that, I didn’t want someone with that close of a relationship to a gang members [sic],
either past or present, to be in the present. [Sic.] Had nothing to do with her racial status.
[¶] The Court: Also, she didn’t bring that up when she was initially questioned. [¶] [The
Prosecutor]: Yes, she did not. She brought it up only after she kind of said it in an answer
to [defense counsel’s] question, but initially she did not.”
Juror 4296 was young and inexperienced. She left school in the ninth grade, she
looked very young, and, apart from babysitting, she had no employment history. Juror
4296 lacked knowledge concerning gangs despite the fact she had lived in Van Nuys.
The prosecutor indicated a Hispanic woman was a jury member. The court agreed.
The court denied appellant’s Wheeler motion and excused Juror 4296.
b. Analysis.
Appellant claims the trial court erroneously denied his Wheeler motion. We
disagree. In People v. Wheeler, supra, 22 Cal.3d 258, our Supreme Court stated, “[w]e
conclude that the use of peremptory challenges to remove prospective jurors on the sole
ground of group bias violates the right to trial by a jury drawn from a representative cross-
section of the community under article I, section 16, of the California Constitution.”
(Wheeler, at pp. 276-277.) Batson v. Kentucky, supra, 476 U.S. 79 reached the same
13
conclusion based on the federal equal protection clause. (People v. Huggins (2006)
38 Cal.4th 175, 226.)
When a defendant asserts at trial that the prosecution’s use of peremptory strikes
violates the federal Constitution, the defendant must make out a prima facie case by
showing the totality of the relevant facts gives rise to an inference of discriminatory
purpose. The burden then shifts to the State to explain adequately the racial exclusion by
offering permissible race-neutral justifications for the strikes. Thereafter, if a race-neutral
explanation is tendered, the trial court must decide whether the opponent of the strike has
proved purposeful racial discrimination. The identical three-step procedure applies when
the challenge is brought under the California Constitution. (People v. Cowan (2010)
50 Cal.4th 401, 447.) The same principles apply to group bias based on gender. Appellant
concedes Hispanic women are a cognizable group for purposes of Wheeler analysis.
(People v. Garceau (1993) 6 Cal.4th 140, 171; People v. Gray (2001) 87 Cal.App.4th
781, 788.)
Fairly read, the record reflects the court found appellant made a prima facie
showing the prosecutor had exercised challenges as to the four above discussed jurors on
the ground they were Hispanic women. At the court’s suggestion, the prosecutor proffered
justifications which were allegedly neutral, and the court then found appellant had not
proved purposeful discrimination based on group bias.
Appellant asserts the trial court’s finding was erroneous. However, our review of a
trial court’s denial of a Wheeler motion is deferential. We examine whether substantial
evidence supports the trial court’s conclusions. We review with great restraint a trial
court’s determination regarding the sufficiency of a party’s proffered justifications, and we
“give great deference to the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to
evaluate the [alleged] nondiscriminatory justifications offered, its conclusions are entitled
to deference on appeal.” (People v. Lenix (2008) 44 Cal.4th 602, 614.) With these
principles in mind, we review below the trial court’s conclusions.
14
The prosecutor indicated she challenged Juror 2575 because Juror 2575 failed to say
“I do” individually when the oath required by Code of Civil Procedure section 232,
subdivision (a) was administered. That failure provided the prosecutor a ground to suspect
Juror 2575 may not have been able to perform her duties as a juror in accordance with the
required oath and the court’s instructions. (Cf. People v. McKinnon, supra, 52 Cal.4th at
p. 643.) This provided race- and gender-neutral bases to challenge Juror 2575. The
prosecutor also indicated Juror 2575 gave the prosecutor “hard looks” and Juror 2575
repeatedly rolled her eyes during the voir dire of a fireman. Bare looks from a juror that
may alienate a party can provide a neutral basis for a challenge. (People v. Turner (1994)
8 Cal.4th 137, 171.) “[P]eremptory challenges may turn upon perceptions not available to
someone reading the cold record--the tone of voice, facial expression, body language, etc.,
of the prospective juror.” (People v. Lenix, supra, 44 Cal.4th at p. 634.)
The prosecutor challenged Juror 2937 because Juror 2937 initially denied
knowledge there were gangs in Pacoima, but later acknowledged she knew they existed
there. Conflicts in a juror’s statements during voir dire can provide a neutral basis for a
challenge. (Cf. People v. Jones (1998) 17 Cal.4th 279, 293-294.) The prosecutor also
challenged Juror 2937 because her brother was incarcerated. A prosecutor reasonably may
conclude a “close relative’s adversary contact with the criminal justice system might make
a prospective juror unsympathetic to the prosecution.” (People v. Farnam (2002)
28 Cal.4th 107, 138.)8
8
Appellant asserts as a basis for comparative analysis Juror 7892’s brother suffered
an arrest on narcotics charges but the prosecutor did not challenge Juror 7892. However,
appellant does not assert the record demonstrates Juror 7892’s brother was convicted and
incarcerated. Juror 2937’s brother was convicted and incarcerated. Conviction and
incarceration of a juror’s close relative provide neutral reasons for challenging the juror.
(Wheeler, supra, 22 Cal.3d at p. 277, fn. 18.) Juror 7892 and 2937 were not similarly
situated.
15
The prosecutor challenged Juror 7351 on the grounds, in part, her sister had dated a
gang member and Juror 7351 said, inter alia, “it was love.” “The ‘law recognizes that a
peremptory challenge may be based on a broad spectrum of evidence suggestive of juror
partiality. The evidence may range from the obviously serious to the apparently trivial,
from the virtually certain to the highly speculative.’ ” (People v. Williams (1997)
16 Cal.4th 153, 191.) Jurors may be excused based on hunches, and even arbitrary
exclusion is permissible, so long as the reasons are not based on impermissible group bias.
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) The prosecutor reasonably might
have suspected Juror 7351 could have had a sympathetic attitude toward a gang
member(s). A degree of sympathy by a juror towards gang members can provide a neutral
reason for a challenge. (People v. Rushing (2011) 197 Cal.App.4th 801, 811.)
The prosecutor challenged Juror 4296 on the grounds she was young and
inexperienced, she had no employment history other than babysitting, and she lacked
knowledge concerning gangs even though she had lived in Van Nuys. Her youth and
inexperience provided neutral reasons to challenge her. (Cf. People v. Perez (1994)
29 Cal.App.4th 1313, 1328.) Similarly, unemployment is a proper criterion for exercising
a challenge because unemployment suggests a person has little stake in the community.
(Cf. Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106; United States v. Gibson (8th
Cir. 1997) 105 F.3d 1229, 1232, fn. 2.)
In the present case, the record demonstrates the trial court made a sincere and
reasoned effort to evaluate the prosecutor’s proffered justifications. The trial court’s
conclusion the prosecutor did not make challenges based on group bias towards Hispanic
women was supported by substantial evidence. The trial court did not err by denying
appellant’s Wheeler motion.9
9
Snyder v. Louisiana (2008) 552 U.S. 472 [170 L.Ed.2d 175] (Snyder), cited by
appellant, does not compel a contrary conclusion since, unlike the case in Snyder, we as a
reviewing court have not concluded any of the prosecutor’s challenges were pretextual.
16
3. The Gang Experts’ Testimony Was Admissible.
Appellant claims the gang experts’ testimony was elicited through the People’s
impermissible hypothetical questions calling for the experts’ opinion on whether appellant
committed the offenses at issue for the benefit of, at the direction of, or in association with
a criminal street gang for purposes of former section 186.22, subdivision (b). Appellant
argues that, as a result, his conviction on count 1, and the true findings as to the former
section 186.22, subdivision (b) enhancement allegations and the section 190.2, subdivision
(a)(22) special circumstance allegations, must be reversed. Appellant concedes that, at the
time he filed his opening brief, the issue he raises was pending review in our Supreme
Court in People v. Vang (2010) 185 Cal.App.4th 309, review granted September 15, 2010
(S184212).
Appellant failed to object to the experts’ testimony on the grounds he now asserts;
therefore, he waived the issues. (Evid. Code, § 353, subd. (a)). Even if the issues were not
waived, they lack merit. In People v. Vang (2011) 52 Cal.4th 1038 (Vang), a gang expert,
in response to hypothetical questions posed by a prosecutor, testified an assault would
benefit a named gang and was committed in association with the gang and at the direction
of the gang’s members. The expert also testified the attack was gang-motivated. Vang
concluded the prosecutor’s hypothetical questions, although based on evidence-specific
assumptions, were properly based on evidence at trial and the expert’s opinion testimony
in response was admissible and not rendered inadmissible by the fact, if true, that the
testimony pertained to an ultimate issue(s) to be decided by the trier of fact. (Id. at
pp. 1042-1049.)
In the present case, the prosecutor essentially posed hypothetical questions which
asked the experts to assume various facts based on the evidence. The prosecutor’s
questions were proper and, in response, the experts properly gave their respective opinions.
The expert opinion testimony was admissible (cf. Vang, supra, 52 Cal.4th at pp. 1042-
1049), and no violation of appellant’s Fifth, Sixth, and/or Fourteenth Amendment rights
occurred.
17
Although appellant appears to assume it would have been error for the experts to
testify directly about appellant himself, Vang expressly left open this question. (Vang,
supra, 52 Cal.4th at p. 1048, fn. 4.) However, there is no need to reach that issue since
neither expert in this case testified directly about appellant or referred to him by name.
The experts’ use of the passive voice avoided express references to appellant.
Accordingly, appellant asserts Yoro testified the crime “was committed” for the benefit,
etc., of a gang, and Avila testified “both shootings were done” to benefit specified gangs.
To the extent appellant claims he received ineffective assistance of counsel by reason of
his trial counsel’s failure to object to the experts’ testimony, our analysis compels the
conclusion no such ineffective assistance occurred.
4. The Trial Court Properly Refused to Instruct on Voluntary Intoxication (Count 1).
During cross-examination, Delgado testified that when appellant threw the bottle, it
hit the gate “in front of us” and “like splashed all over us.” Appellant drew the gun about
30 seconds or a minute later. Appellant later during cross-examination asked Delgado if
appellant appeared drunk to Delgado. Delgado replied, “I don’t know. He was holding a
beer.” Appellant asked if Delgado ever said appellant was drunk “to the police or anything
like that . . . .” Delgado replied, “I probably said it because he had a beer in his hand, yes.”
Delgado added, “. . . he didn’t seem like he was drunk out of his mind and didn’t know
what was going on because he was speaking . . . at me in plain English; no jibberish, no
slurring at all.”
During discussions concerning jury instructions, appellant’s counsel requested an
instruction on voluntary manslaughter as to count 1 on the ground “the defendant, due to
intoxication, did not form the specific intent to kill.” The prosecutor denied voluntary
manslaughter could be based on intoxication and suggested another instruction might
apply.10 Appellant indicated the other instruction was CALCRIM No. 625 and he
requested that the court give it.
10
In his opening brief, appellant states he is not challenging the trial court’s refusal to
instruct on voluntary manslaughter.
18
The proposed modified CALCRIM No. 625, as recited by the court, read: “. . . you
may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only in deciding whether the defendant acted with
an intent to kill or the defendant acted with deliberation and premeditation. [¶] A person
is voluntarily intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance that could produce an intoxicating effect, or
willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary
intoxication for any other purpose.” Appellant’s counsel indicated the instruction
pertained to the issue that appellant “could not form the malice.” The court refused to give
the proposed modified CALCRIM No. 625.
Appellant claims the trial court thereby erred, requiring reversal of his conviction
on count 1. We disagree. We have recited the pertinent facts. There was no substantial
evidence appellant was intoxicated, voluntarily or otherwise. Even if there was substantial
evidence he was voluntarily intoxicated, there was no substantial evidence appellant
became intoxicated to the point he failed to formulate the mental states at issue, i.e., intent
to kill, and premeditation and deliberation. (Cf. People v. Marshall (1996) 13 Cal.4th 799,
848; People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1662.) A trial court is under no
duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga
(1999) 21 Cal.4th 935, 944.)
5. Sufficient Evidence Supported Count 1’s Gang Special Circumstance Finding.
Appellant claims there is insufficient evidence supporting the gang special
circumstance finding pertaining to count 1 (the Molina murder). Appellant argues in
particular there was insufficient evidence (1) appellant “knew that members of [PT]
engaged in a pattern of criminal activity” and (2) appellant was a member of, or active
participant in, PT. We reject his claim.
Section 190.2, subdivision (a)(22) authorizes a defendant to be sentenced to death,
or imprisonment for life without the possibility of parole, if “[t]he defendant intentionally
killed the victim while the defendant was an active participant in a criminal street gang, as
defined in subdivision (f) of Section 186.22, and the murder was carried out to further the
19
activities of the criminal street gang.” Although section 190.2, subdivision (a)(22) does
not expressly require that the defendant have “knowledge of the gang’s criminal purposes”
(People v. Carr (2010) 190 Cal.App.4th 475, 487 (Carr), federal due process imposes that
knowledge requirement upon subdivision (a)(22). (Ibid.) The subdivision does not require
that the defendant be an actual member of the gang.11
11
In Carr, the defendant challenged the sufficiency of the evidence supporting the
true finding as to his section 190.2, subdivision (a)(22) gang special circumstance
allegation. The trial court in Carr (like the trial court in the present case) used CALCRIM
No. 736 to instruct on the elements of that subdivision. The CALCRIM No. 736
instruction given in the present case was substantially the same as the one used in Carr.
The instruction given in the present case stated, “The defendant is charged with the special
circumstance of committing murder while an active participant in a criminal street gang in
violation of Penal Code section 190.2(a)(22). [¶] To prove that this special circumstance
is true, the People must prove that: [¶] 1. The defendant intentionally killed Albert
Molina and [J]ohnny Ray Lopez; [¶] 2. At the time of the killing, the defendant was an
active participant in a criminal street gang; [¶] 3. The defendant knew that members of
the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶]
4. The murder was carried out to further the activities of the criminal street gang. [¶]
Active participation means involvement with a criminal street gang in a way that is more
than passive or in name only. [¶] The People do not have to prove that the defendant
devoted all or a substantial part of his time or efforts to the gang, or that he was an actual
member of the gang. [¶] A criminal street gang is defined in another instruction to which
you should refer.” Except for appellant’s claim addressed in part 7 of our Discussion (a
claim we there reject), there is no dispute the above quoted CALCRIM No. 736 correctly
stated the law.
Carr concluded that, notwithstanding the third enumerated knowledge element in
CALCRIM No. 736, section 190.2, subdivision (a)(22) itself did not expressly impose a
knowledge element. (Carr, supra, 190 Cal.App.4th at p. 486.) However, Carr observed
federal due process required a person could not be criminally liable for active membership
in a criminal organization absent “ ‘guilty knowledge and intent’ ” (id. at p. 487);
therefore, due process mandated that one of section 190.2, subdivision (a)(22)’s elements
was that a defendant have “knowledge of the gang’s criminal purposes” (id. at p. 487).
Carr did not expressly eliminate the third enumerated knowledge element set forth in
CALCRIM No. 736, but expressly construed that element to not require a defendant’s
“knowledge of particular crimes committed by gang members.” (Carr, at p. 488, fn. 13.)
20
To the extent appellant argues there was insufficient evidence he “knew that
members of [PT] engaged in a pattern of criminal activity,” we reject the argument.
Section 190.2, subdivision (a)(22) required appellant to have knowledge of the gang’s
criminal purposes, but did not require appellant to have knowledge of the particular crimes
committed by gang members (see fn. 11, ante). We have set forth in the Factual Summary
the pertinent evidence, including appellant’s conduct during the 2007 Molina murder (e.g.,
his shouting Pacoima) and appellant’s membership in PCSL, the expert testimony
concerning the relationship between PCSL and PT (including the facts PCSL derived from
PT, and the two gangs were allies), and Yoro’s expert opinion testimony the killing of
Molina was committed for the benefit of, at the direction of, or in association with, PT.
Such evidence and testimony are typical proofs of gang allegations. (Carr, supra,
190 Cal.App.4th at pp. 488-489, fn. 14.) We conclude there was sufficient evidence
appellant had knowledge of the PT gang’s criminal purposes as required by the gang
special circumstance pertaining to count 1. (Id. at pp. 488-490.)
To the extent appellant argues there was insufficient evidence he was a member of
PT, we reject the argument. Section 190.2, subdivision (a)(22) does not expressly require
that the defendant be a member in a gang. Except as previously discussed, there is no
dispute CALCRIM No. 736 given in this case correctly states the law. That instruction
states, “The People do not have to prove that the defendant . . . was an actual member of
the gang.” To the extent appellant argues there was insufficient evidence appellant was an
active participant in PT, we reject the argument based on the previously discussed
evidence and expert testimony.
6. The Court’s Limitation on Appellant’s Cross Examination of Yoro Was Proper.
A former section 186.22, subdivision (b)(1) gang enhancement may be imposed
only if subdivision (e) predicate offenses are proven. In the present case, as proof of one
of the predicate offenses, the prosecutor presented evidence of a prior conviction suffered
by Robert Carrillo, a PT gang member with the moniker Sweet Pea.
21
During cross-examination, appellant asked Yoro whether Yoro knew of any
documentation that appellant ever knew “Robert ‘Sweet Pea’ Carrillo.” The prosecutor
objected on relevance grounds, repeatedly indicating the former section 186.22,
subdivision (b)(1) gang enhancement did not require that appellant know predicate
offenders. The prosecutor also posed a foundation objection concerning Yoro’s
“knowledge of [appellant].” The court sustained both objections.
At sidebar, appellant argued he was allegedly a PCSL member but there was no
evidence he was a PT member and, since the prosecutor had offered evidence of predicate
offenses, appellant was entitled to cross-examine Yoro on the issues of whether Yoro knew
of documentation that appellant knew a predicate offender, and whether Yoro knew
appellant knew a predicate offender.
The court indicated appellant did not have to know the predicate offenders or be a
member of the criminal street gang “for the purpose of that allegation.” Appellant’s
counsel commented, “even though [the People] are not required to show that . . .
[appellant] knew him, . . . I think it’s relevant to show that he didn’t know them.” The
court again sustained the People’s “objection.”
During the above discussions, appellant never cross-examined, or indicated he
wanted to cross-examine, Yoro concerning whether appellant knew about the prior
convictions suffered by the predicate offenders, nor did the parties or court ever expressly
refer to the section 190.2, subdivision (a)(22) gang special circumstance allegations.
Appellant claims the trial court improperly limited his cross-examination of Yoro.
In particular, appellant argues the trial court prevented him from cross-examining Yoro
“on the issue of whether appellant knew any of the [PT] members whose convictions were
used to establish the pattern of gang activity, or knew about their convictions . . . .”
Appellant maintains these matters were relevant to prove he lacked knowledge “that
members of the [PT] gang engage in or have engaged in a pattern of criminal gang
activity” for purposes of CALCRIM No. 736 and the section 190.2, subdivision (a)(22)
gang special circumstance allegations, and the limitation on Yoro’s testimony violated
appellant’s rights to confrontation.
22
However, except to the extent appellant challenges the exclusion of testimony from
Yoro concerning appellant’s lack of knowledge of the predicate offenders, appellant
waived the above issues by failing to elicit testimony from Yoro or failing to raise the issue
below. (Cf. People v. Morrison (2004) 34 Cal.4th 698, 711-712; Evid. Code, § 354.)
Moreover, even if none of the above issues were waived, there is no need to reach
them. Even if we assume the court prevented Yoro from testifying on the issues of
whether appellant knew PT members whose convictions were predicate convictions, or
whether appellant knew about those convictions, Yoro could not testify as to what
appellant knew. Appellant does not challenge the trial court’s ruling sustaining the
prosecutor’s foundation (lack of personal knowledge) objection. The application of
ordinary rules of evidence, as here, did not violate appellant’s constitutional rights,
including his rights to confrontation. (Cf. People v. Boyette (2002) 29 Cal.4th 381,
427-428.) Moreover, there was overwhelming evidence appellant knew PT’s criminal
purposes. (See Carr, supra, 190 Cal.App.4th at p. 487.) No prejudicial error occurred.
(Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705].)
7. CALCRIM 736 Is Not Constitutionally Defective.
The trial court, using CALCRIM No. 736 (see fn. 11, ante), instructed on the gang
special circumstance allegations. Appellant claims the instruction is deficient because it
fails to tell the jury that “to find the gang special circumstance true it must determine that
appellant was an active participant of the gang whose activities were furthered by the
murder, in this case, [PT].” We conclude otherwise.
Generally, a party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language. (Cf. People v. Palmer (2005)
133 Cal.App.4th 1141, 1156 (Palmer).) CALCRIM No. 736 correctly stated the law
concerning the gang special circumstance allegations and was responsive to the evidence.
Appellant waived his instructional issue by failing to request appropriate clarifying or
amplifying language. (Cf. Palmer, at p. 1156.)
23
Even if the issue was not waived, appellant’s claim lacks merit. As mentioned,
section 190.2, subdivision (a)(22) authorizes a defendant to be sentenced to death, or
imprisonment for life without the possibility of parole, if “[t]he defendant intentionally
killed the victim while the defendant was an active participant in a criminal street gang, as
defined in subdivision (f) of Section 186.22, and the murder was carried out to further the
activities of the criminal street gang.” CALCRIM No. 736, in relevant part, tracks this
statutory language. CALCRIM No. 736 states the People are required to prove, inter alia,
“2. . . . the defendant was an active participant in a criminal street gang” and “4. The
murder was carried out to further the activities of the criminal street gang.”
In People v. Poggi (1988) 45 Cal.3d 306, the defendant claimed the trial court was
obligated to instruct sua sponte on the meaning of language contained in the section 190.2,
subdivision (a)(17) felony-murder special circumstance. Poggi observed, “The law
applicable here is clear. The language of a statute defining a crime or defense is generally
an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the
defendant fails to request amplification. If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than instruct in
statutory language. [Citation.] [¶] The portion of the instruction at issue in this case was
drawn verbatim from Penal Code section 190.2, subdivision (a)(17). Defendant, however,
failed to request further amplification. Finally, a jury would have no difficulty in
understanding the statutory language without guidance. Accordingly, the court was not
obligated to explicate the clauses in question.” (Poggi, at p. 327.)
Poggi’s above analysis is equally applicable here and compels rejection of
appellant’s claim. CALCRIM No. 736, tracking the statutory language, adequately
instructs the jury that in order to prove the gang special circumstance allegations, the
People had to prove the defendant was an active participant in a criminal street gang, and
the murder was carried out to further the activities of that same criminal street gang.
Moreover, the statutory and instructional language contains the phrase “to further the
activities,” a phrase referring to the defendant’s mental state. Appellant would change this
to refer to whether “activities were furthered,” a phrase referring to whether activities were
24
objectively furthered. Appellant cites no authority holding his proposed changes are
required. Appellant’s claim fails. We also reject appellant’s claim cumulative prejudicial
error occurred.
8. The Trial Court Properly Denied Appellant’s Motion for Disclosure of Juror
Identification Information.
a. Pertinent Facts.
After the verdicts but prior to the sentencing hearing, appellant, on March 24, 2010,
filed a motion to release juror information. The motion was supported by a single
declaration from Attorney Randy Tennen. The declaration indicated as follows. Attorney
James Sussman was appellant’s trial counsel. Tennen previously had been “appointed pro
bono” to assist Sussman. On March 2, 2010, following the jury verdicts, Tennen stood
outside the jury room to speak to jurors willing to discuss their verdict. Sussman soon
joined them when Sussman finished talking to appellant.
The declaration then states, in relevant part, “4. We spoke with about five or six
jurors who served on the panel, at least two of whom participated in the verdict. I spoke in
particular with a juror who I believe was Juror Number 11 . . . and Attorney Sussman
spoke to alternate jurors. [¶] 5. Juror Number 11 and another juror told me that while
they were in the jury room ‘We said “What’s the defense? There wasn’t any.” ’
[¶] 6. I heard one juror ask Attorney Sussman why [appellant] did not take the stand.”
The memorandum of points and authorities argued Tennen’s declaration showed the
jury “may” have failed to follow the court’s instructions “in that [the jury] allowed into
their deliberations the fact that the defense presented no evidence and that the defendant
did not testify (CALCRIM 355).” At the May 14, 2010, hearing on the motion, appellant’s
counsel commented, inter alia, a prima facie showing had been made that the court should
release the juror information so a determination could be made as to “whether or not there
was some jury misconduct.”
After a discussion of pertinent law, the court indicated, inter alia, as follows. The
present case was alleged to be a gang-related case. The jury found the killings were
motivated by gang membership. Gang slogans were yelled at the “time of the murder.”
25
The juror statements at issue provided “no evidence that the jurors held it against the
defendant or even took the lack of defense into consideration in reaching their verdict.”
None of the jurors’ statements constituted misconduct requiring the court to conduct a
hearing and release jury information. There was ample evidence supporting appellant’s
convictions, and the true findings as to the special allegations, beyond a reasonable doubt.
Appellant had failed to make a good cause showing of juror misconduct justifying a
hearing, and even if a prima facie showing had been made, there was a compelling interest
against disclosure, i.e., protecting jurors from danger since the crimes were gang-related
murders. The court denied appellant’s motion.
b. Analysis.
Appellant claims the trial court erred by denying his motion for the release of juror
information. He argues “appellant presented some evidence that jurors in his case had
violated the court’s instruction [CALCRIM No. 35512] and considered the fact that
appellant did not testify in his own defense. The court was therefore required to set the
matter for a hearing, unless there was a factual showing on the record of facts that establish
a compelling interest against disclosure.” We reject his claim.
Code of Civil Procedure sections 206, subdivision (g), and 237, subdivision (b) set
forth procedures governing such motions, i.e., criminal defendants’ petitions for access to
the court’s record of personal juror identification information. Code of Civil Procedure
section 237, subdivision (b), requires, generally speaking, a hearing on the matter upon a
prima facie showing of good cause, unless there exists a compelling interest against
disclosure.
12
CALCRIM No. 355, which the court gave to the jury, states, “A defendant has an
absolute constitutional right not to testify. He or she may rely on the state of the evidence
and argue that the People have failed to prove the charges beyond a reasonable doubt. Do
not consider, for any reason at all, the fact that the defendant did not testify. Do not
discuss that fact during your deliberations or let it influence your decision in any way.”
26
A trial court may deny an evidentiary hearing if the court concludes the defendant
did not make a good cause showing of juror misconduct. (People v. Jefflo (1998)
63 Cal.App.4th 1314, 1322 (Jefflo).) We review a trial court’s denial of such a hearing,
and a trial court’s denial of a petition for access to personal juror identification
information, for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317; People
v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
In the present case, appellant’s claim is based on the premise he was entitled to a
hearing because he made “a prima facie showing of good cause” (Code Civ. Proc., § 237,
subd. (b)) that jurors had violated CALCRIM No. 355 by considering the fact appellant did
not testify.
However, Tennen’s declaration was the sole declaration supporting appellant’s
motion. The declaration was patently vague. It stated, “We spoke with about five or six
jurors who served on the panel, at least two of whom participated in the verdict.” First,
there were multiple verdicts on multiple counts dealing with offenses occurring in 2007
and 2008, not just one verdict, and it is not clear to which “verdict” the statement refers.
Second, the above quoted sentence suggests that “[w]e spoke” with about five or six jurors
who served on the 12-person jury, and at least two participated in the verdicts but the rest
of the jurors did not participate in the verdicts. However, the verdicts were, of course,
unanimous. Third, the above quoted sentence alternatively suggests “[w]e spoke” with
about five or six jurors who served on the 12-person jury, and at least two participated in
the discussions during the deliberations leading to the verdicts but the rest did not
participate in the discussions. Other constructions are possible.
The declaration also states, “5. Juror Number 11 and another juror told me that
while they were in the jury room ‘We said “What’s the defense? There wasn’t any.” ’ The
declaration thus recited hearsay (a fact the court was entitled to consider) at least to the
extent the declaration recited what the two jurors told Tennen. The above quoted sentence
does not expressly identify who “we” is, e.g., whether “we” referred merely to the two
jurors, or to the two jurors and other jurors. The declaration identifies only one of the two
27
jurors, i.e., Juror No. 11. The above quoted sentence does not expressly state that the
statements to the effect there was no “defense” were made during deliberations.
Moreover, as to appellant’s position that the two jurors’ statements to the effect
there was no “defense” indicated the jury considered appellant’s failure to testify, the term
“defense” is ambiguous. The term could mean defense evidence (whether testimony or
not) coupled with defense jury argument, as when our Supreme Court in People v.
Mayfield (1993) 5 Cal.4th 142, stated, “[Defendant’s] defense consisted of the playing of
the complete audiotaped confession . . . and closing argument.” (Id. at p. 166.) The term
could simply mean defense evidence (whether testimony or not), apart from any jury
argument.
According to the declaration, two jurors (appellant suggests more) made statements
at some point in the jury room to the effect there was no “defense.” However, if the term
“defense” meant defense evidence (testimony or not) and defense jury argument, the
statement was objectively false since appellant presented documentary evidence
suggesting he had been misidentified as DeLeon, and appellant suggested during jury
argument as to all counts that he might have been mistaken for DeLeon. Similarly, if the
term “defense” simply meant defense evidence (whether testimony or not), the two jurors’
statements were false since appellant presented documentary evidence.
In light of the above, it is unclear what the two jurors meant when they said there
was no “defense.” They may have meant, not that defense evidence and/or defense jury
argument had not been presented (since obviously they had been presented) but, as
hyperbole, that the defense evidence and/or argument had little convincing force.
Appellant was not obligated to present defense evidence or jury argument but once he did,
the jury was free to consider and evaluate said evidence and/or argument.
Alternatively, the term “defense” could have simply meant testimony from a third
party defense witness(es) (i.e., a person(s) other than appellant) as when the court in
People v. Chakos (2007) 158 Cal.App.4th 357, stated, “[appellant’s] defense consisted of
testimony from three witnesses [other than the defendant].” (Id. at p. 362.) Accordingly,
when the two jurors stated there was no “defense,” they may have simply meant that no
28
third party defense witness(es) had testified. In that event, the statement was true, the jury
was entitled to consider the fact no third party defense witness(es) testified (since appellant
had introduced documentary evidence), and the statement did not indicate the jury
considered the fact appellant did not testify. The two jurors did not expressly state
appellant did not testify.
Similarly, Tennen’s declaration stated, “6. I heard one juror ask Attorney Sussman
why [appellant] did not take the stand.” Nothing in the declaration identifies the juror.
Nothing in the declaration indicates (1) during deliberations, said juror asked why
appellant did not take stand or (2) the fact appellant did not take the stand was considered
or discussed by any juror during deliberations. In fact, Tennen indicated Sussman spoke to
alternate jurors. If the juror who asked the question of Tennen was still an alternate juror,
he or she did not participate in deliberations. Nothing in the declaration indicates the
juror’s question was based on anything other than postverdict curiosity. (Cf. Jefflo, supra,
63 Cal.App.4th at p. 1322.)
The juror asked the question of Sussman, and nothing in the declaration makes clear
the timing of that question viz-a-viz the timing of the previously mentioned statements by
the two jurors, where the various persons exactly were at the time of the statements and
question (other than generally together outside the jury room on the courthouse lower
level), or whether the question was or was not part of a colloquy in which the statements
were made. The juror did not state he drew an inference adverse to appellant from the fact
he did not testify.
In sum, Tennen’s declaration was too vague and ambiguous to constitute a prima
facie showing of good cause the jury considered appellant’s failure to testify and,
therefore, violated CALCRIM No. 355. Nor did the supporting memorandum assist to
establish such a showing.
9. The Trial Court Failed to Exercise Its Informed Discretion When Imposing an LWOP
Sentence on Count 3.
As discussed (see fn. 2, ante), our Supreme Court transferred this matter to us for
reconsideration in light of Gutierrez, supra, 58 Cal.4th 1354. In a supplemental opening
29
brief,13 appellant claims this court should reverse his sentence and remand the case for
resentencing in accordance with Miller, People v. Caballero (2012) 55 Cal.4th 262(Caballero), and Gutierrez. We agree remand for resentencing is appropriate because the
trial court failed to exercise its informed discretion when imposing an LWOP sentence on
count 3.
a. Pertinent Facts.
A preconviction probation report prepared for a 2009 hearing reflects facts
pertaining to the 2007 and 2008 present offenses and that appellant was 16 years old when
he committed the 2008 offenses (counts 3 – 5). The report also reflects as follows.
Appellant was involved with the “Cayuga Street Locos; Pacoima-Cayuga Street” gang.
His monikers were Gangsta, Gangster, Fuco, and Temperganst. Appellant used marijuana
daily in 2007. Probation records for 2007 indicated he lived with nine relatives, attended
school regularly, and had satisfactory grades.
The report indicated the following concerning appellant’s prior record of juvenile
offenses. In April 2007, appellant suffered separate sustained petitions for battery and
felony vandalism, respectively, for each of which offenses he was placed home on
probation. (Appellant committed, on about June 15, 2007, the offenses at issue in counts 1
and 2 in the present case.) In July 2007, appellant was arrested for possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and, in October 2007, he
suffered a sustained petition for that offense and was placed home on probation. In
November 2007, appellant suffered a sustained petition for robbery and was ordered
placed in camp. On May 30, 2008, appellant was released from camp. (Appellant
committed, on June 8, 2008, the offenses at issue in counts 3 through 5 in the present
case.) At the time of the present offenses, appellant was home on probation in each of the
above cases in which he suffered a sustained petition.
13
After our Supreme Court transferred this matter to this court for reconsideration in
light of Gutierrez, the parties filed supplemental briefs as authorized by California Rules of
Court, rule 8.200(b)(1).
30
The report listed as aggravating factors that the crime involved great violence, great
bodily harm, a threat of great bodily harm or other acts disclosing a high degree of cruelty,
viciousness or callousness; his prior convictions as an adult or adjudications of
commission of crimes as a juvenile were numerous or of increasing seriousness; and he
had engaged in a pattern of violent conduct which indicated a serious danger to society.
The report indicated there were no mitigating circumstances. The report recommended
that the trial court impose consecutive sentencing.
On May 27, 2010, the People filed a sentencing memorandum that asked the trial
court to impose, inter alia, an LWOP sentence on count 3 pursuant to section 190.5. The
memorandum acknowledged the trial court’s discretion to do otherwise under that section.
Appellant did not file a sentencing memorandum.
At the May 27, 2010, sentencing hearing, the court indicated it had read, inter alia,
the probation report and the People’s sentencing memorandum. During argument,
appellant’s counsel, noting appellant was a minor at the time of the present offenses, asked
that pursuant to the Eighth Amendment “the court craft a sentence which at some future
date will permit [appellant], upon proper rehabilitation, an opportunity to be released.”
The prosecutor commented as to count 3 that, given appellant’s age, the court had
discretion to impose a sentence that could result in appellant’s release on parole. However,
the prosecutor asked the court to impose an LWOP sentence on that count because
appellant had a prior strike, he had not lived a crime-free life, “[t]here is no opportunity for
[appellant] to be rehabilitated,” and “there is no opportunity for his victims to have any
kind of rehabilitation or . . . life . . . .”
The court indicated the probation report reflected appellant’s gang monikers. The
court also indicated appellant was a known member of the previously mentioned gang.
The court discussed appellant’s prior record as reflected in the report and discussed the
facts of the present offenses (counts 1 through 5).
The court stated, “Based on [appellant’s] past criminal history, the court feels the
maximum sentence should be imposed.” The court sentenced appellant to prison for a
total prison sentence of life without the possibility of parole as to count 3, plus 105 years to
31
life.14 On July 16, 2010, the court issued an order modifying nunc pro tunc appellant’s
sentence for the Molina murder (count 1) by imposing a consecutive term of 25 years to
life pursuant to the Three Strikes law. Appellant’s disposition otherwise remained the
same, including the LWOP sentence on count 3.
b. Analysis.
(1) Applicable Law.
(a) Section 190.5, Subdivision (b).
Section 190.5, subdivision (b) provides, in relevant part, “The penalty for a
defendant found guilty of murder in the first degree, in any case in which one or more
special circumstances enumerated in Section 190.2 . . . has been found to be true . . . , who
was 16 years of age or older and under the age of 18 years at the time of the commission of
the crime, shall be confinement in the state prison for life without the possibility of parole
or, at the discretion of the court, 25 years to life.”
(b) Miller, Caballero, and Gutierrez.
1) Section 190.5, Subdivision (b) Does Not Presume an LWOP
Sentence.
In Gutierrez, our Supreme Court stated, “For two decades, since People v. Guinn
(1994) 28 Cal.App.4th 1130 [33 Cal.Rptr.2d 791] (Guinn), section 190.5(b) has been
construed by our Courts of Appeal and trial courts as creating a presumption in favor of
life without parole as the appropriate penalty for juveniles convicted of special
circumstance murder.” (Gutierrez, supra, 58 Cal.4th at p. 1360.)
14
The total prison sentence consisted of life without the possibility of parole on count
3; a consecutive term of 50 years to life (25 years to life, doubled pursuant to the Three
Strikes law) for the Molina murder (count 1) plus 25 years to life for the former section
12022.53, subdivision (d) enhancement pertaining to count 1; and a consecutive term of
30 years to life (15 years to life, doubled pursuant to the Three Strikes law) for the
attempted murder of Maldonado (count 4). The court concluded section 654 applied to
counts 2 and 5.
32
Gutierrez acknowledged “Miller held that ‘the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.’ [Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1378, italics added.)15
Gutierrez observed, “construing section 190.5(b) to establish a presumption in favor of life
without parole raises serious constitutional concerns under the reasoning of Miller and the
body of precedent on which Miller relied.” (Id. at p. 1387.)
Accordingly, Gutierrez stated, “We hold that section 190.5(b) confers discretion on
the sentencing court to impose either life without parole or a term of 25 years to life on a
16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption
in favor of life without parole. In light of this holding, we disapprove People v. Guinn,
supra, 28 Cal.App.4th 1130, and its progeny.” (Gutierrez, supra, 58 Cal.4th at p. 1387.)
Gutierrez’s holding was the result of statutory interpretation of section 190.5, subdivision
(b). (Id. at pp. 1369-1387.)
2) Section 190.5, Subdivision (b) Requires Trial Court
Consideration of the Miller Factors.
Gutierrez also, as a matter of statutory interpretation, concluded section 190.5,
subdivision (b) authorizes “and indeed requires consideration of the Miller factors.”
(Gutierrez, supra, 58 Cal.4th at p. 1387, italics added.) Gutierrez acknowledged this
requirement could not be found in the text of subdivision (b). (Ibid.) Gutierrez
nonetheless reasoned subdivision (b) involved discretionary choices necessarily informed
by aggravating and mitigating factors set forth in, inter alia, section 190.3. (Ibid.)
15
Miller also stated, “[G]iven all we have said . . . about children’s diminished
culpability and heightened capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be uncommon. That is
especially so because of the great difficulty we noted in [previous cases] of distinguishing
at this early age between ‘the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.’ [Citations.] Although we do not foreclose a sentencer’s ability to make that
judgment in homicide cases, we require it to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in
prison. [Fn. omitted.]” (Miller, supra, 567 U.S. at p. __ [132 S. Ct. at p. 2469].)
33
Section 190.3 lists factors a trier of fact must consider when determining in a
special circumstance case whether a defendant shall receive the death penalty or LWOP.
One such factor is “[t]he age of the defendant at the time of the crime.” (§ 190.3, subd.
(i).) Gutierrez indicated this factor permitted consideration not only of a defendant’s age
but any pertinent age-related matter, and, in particular, the Miller factors. (Gutierrez,
supra, 58 Cal.4th at p. 1388.)
Gutierrez noted “Miller discussed a range of factors relevant to a sentencer’s
determination of whether a particular defendant is a ‘ “rare juvenile offender whose crime
reflects irreparable corruption.” ’ [Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1388.)
Gutierrez also noted Miller, in a “ ‘recap,’ ” (ibid.) grouped these factors into five
categories. (Ibid.) Gutierrez stated, “We understand Miller to require a sentencing court
to admit and consider relevant evidence of the following” (ibid.), then Gutierrez
extensively discussed the five categories. (Id. at pp. 1388-1399.)
Miller’s recap stated the five categories as follows: “To recap: Mandatory life
without parole for a juvenile precludes consideration of his chronological age and its
hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking into account the family and home environment that
surrounds him--and from which he cannot usually extricate himself--no matter how brutal
or dysfunctional. It neglects the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer pressures may have
affected him. Indeed, it ignores that he might have been charged and convicted of a lesser
offense if not for incompetencies associated with youth--for example, his inability to deal
with police officers or prosecutors (including on a plea agreement) or his incapacity to
assist his own attorneys. [Citations.] And finally, this mandatory punishment disregards
the possibility of rehabilitation even when the circumstances most suggest it.”
(Miller, supra, 567 U.S. at p. __ [132 S. Ct. at p. 2468].)
After Gutierrez’s more extensive discussion of the five categories, Gutierrez stated,
“In sum, we hold that the trial court must consider all relevant evidence bearing on the
‘distinctive attributes of youth’ discussed in Miller and how those attributes ‘diminish the
34
penological justifications for imposing the harshest sentences on juvenile offenders.’
[Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1390.) Accordingly, Gutierrez earlier
stated, “Because the sentencing regime created by section 190.5(b) authorizes and indeed
requires consideration of the distinctive attributes of youth highlighted in Miller, we find
no constitutional infirmity with section 190.5(b) once it is understood not to impose a
presumption in favor of life without parole.” (Id. at p. 1361.) 16 That is, the section did not
violate the Eighth Amendment.
3) Gutierrez Concluded the Trial Court Failed to Exercise Its
Informed Discretion and Remand Was Appropriate.
Applying the above principles to the case before it, Gutierrez concluded the trial
courts in that case17 committed sentencing error by applying Guinn’s holding that section
190.5, subdivision (b) created a presumption of an LWOP sentence. (Gutierrez, supra,16
In Caballero, our Supreme Court held the Eighth Amendment categorically bars a
prison sentence of 110 years to life for nonhomicide offenses committed by a minor.
(Caballero, supra, 55 Cal.4th at p. 265.) The minimum term of 110 years caused the
sentence to be a “de facto” (id. at p. 269) LWOP. Caballero observed, “Although proper
authorities may later determine that youths should remain incarcerated for their natural
lives, the state may not deprive them at sentencing of a meaningful opportunity to
demonstrate their rehabilitation and fitness to reenter society in the future.” (Id. at p. 268,
italics added.) Caballero later stated that under case law from the United States Supreme
Court, “the sentencing court must consider all mitigating circumstances attendant in the
juvenile’s crime and life, including but not limited to his or her chronological age at the
time of the crime, whether the juvenile offender was a direct perpetrator or an aider and
abettor, and his or her physical and mental development, so that it can impose a time when
the juvenile offender will be able to seek parole from the parole board.” (Id. at pp. 268-
269.)
17
Gutierrez was one of two companion cases, hence two trial courts.
35
58 Cal.4th at p. 1390.)18 Gutierrez did not fault the trial courts because Guinn was the law
at the time of sentencing. (Ibid.)
Gutierrez further concluded the trial courts in that case erroneously failed to
exercise their informed discretion during sentencing, i.e., the trial courts erroneously
lacked awareness of the scope of their discretionary powers. (Gutierrez, supra, 58 Cal.4th
at p. 1391.) The error lay in the fact the trial courts were unaware of “the full scope of
discretion conferred by section 190.5(b) or with the guidance set forth in Miller and this
opinion for the proper exercise of its discretion.” (Id. at pp. 1390-1391.) The cases
Gutierrez cited for the proposition a trial court must exercise its informed discretion and be
aware of the full scope of its discretion were rooted in due process and fundamental
fairness principles. (Id. at p. 1391.) Gutierrez concluded remand for resentencing was the
remedy because the record did not clearly indicate the trial court would have imposed the
same sentence if the trial courts had been aware of the full scope of their discretion, and
our Supreme Court could not confidently say what sentence the trial courts would have
imposed absent the Guinn presumption. (Ibid.)
(2) Application of the Law to The Present Case.
As mentioned, appellant claims this court should reverse his sentence and remand
the case for resentencing in accordance with Miller, Caballero, and Gutierrez. Guinn’s
holding was prevailing law at the time of appellant’s May 27, 2010 sentence and the July
16, 2010 sentence modification; therefore, we presume the trial court in this case followed
Guinn. Accordingly, Gutierrez’s analysis, holdings, and result apply here. We conclude
that on May 27, 2010, and July 16, 2010, the trial court erred (through no fault of its own)
(1) by applying Guinn’s holding that section 190.5, subdivision (b) created a presumption
of an LWOP sentence, and (2) by failing to exercise its informed discretion under
18
One of the two trial courts in Gutierrez (see fn. 17, ante) had expressly referred to
Guinn’s holding. The other trial court did not, but Gutierrez presumed that that trial court
had applied Guinn’s holding because a trial court is presumed to have known and followed
the law, and Guinn was the law at time of sentencing. (Gutierrez, supra, 55 Cal.4th at
p. 1390.)
36
subdivision (b) with an awareness of the full scope of that discretion and the guidance of
Miller and Gutierrez for the proper exercise of that discretion.
Moreover, the record does not clearly indicate the trial court in this case would have
imposed the same sentence if the trial court had been aware of the full scope of its
discretion, and we cannot confidently say what sentence the trial court would have
imposed absent the Guinn presumption. Respondent concedes this matter must be
remanded for resentencing in light of Gutierrez; we accept the concession.19 We will
vacate appellant’s sentence and remand the matter to the trial court to permit it to
reconsider that sentence in light of the Eighth Amendment, Miller, Gutierrez, and this
opinion, and to resentence appellant accordingly.
We express no opinion as to how the trial court should weigh any permissible
sentencing factors, including those discussed in Miller, Gutierrez, and this opinion, nor do
we express an opinion as to what appellant’s sentence following remand should be.
10. Imposition of a Three Strikes Law Sentence as to Count 4 Was Proper.
The information alleged appellant suffered a strike, i.e., a 2007 robbery conviction
in case No. PJ40364. Trial on the prior conviction allegation (prior) was bifurcated.
Appellant waived his right to a jury trial on the prior. On March 2, 2010, the parties
stipulated appellant would admit the identity issue as to the prior, documentation
concerning the prior would be submitted to the court, and the court would make findings
19
In light of the analysis and result in this case, there is no need to reach appellant’s
claims in his opening brief that (1) his LWOP sentence on count 3 violates the Eighth
Amendment because it categorically bars an LWOP sentence for juvenile offenders or
(2) the LWOP sentence constituted cruel or unusual punishment under the state
Constitution. Although the focus of appellant’s claim is the disposition of count 3, the trial
court on remand may reconsider appellant’s entire sentence. (Cf. People v. Stevens (1988)
205 Cal.App.3d 1452, 1455-1458; People v. Savala (1983) 147 Cal.App.3d 63, 66-70.) In
his supplemental brief (filed after our Supreme Court remanded this matter to this court for
reconsideration in light of Gutierrez), appellant argues we should direct that, following
remand, the trial court is to set a parole eligibility date within appellant’s expected lifetime
if the trial court does not impose an LWOP sentence. There is no need to decide that issue
as we are confident if appellant presses this issue following remand, the trial court will
address it.
37
concerning the prior on a future date. Appellant waived his right to a court trial on the
prior and admitted he was the person referred to in documents constituting court’s exhibit
No. 2.20 The court indicated it would review court’s exhibit No. 2, “prior to the sentencing
date and make the finding on that date.” The case was continued to May 27, 2010.
On May 27, 2010, the court sentenced appellant to prison (see fn. 14, ante). As to
count 4, the court stated without objection, “Again, the term is 15 years to life. Due to the
strike, that is doubled for 30 years to life.” On July 16, 2010, the court issued an order
modifying nunc pro tunc appellant’s sentence for the Molina murder (count 1) by imposing
a consecutive term of 25 years to life (instead of a consecutive term of 50 years to life
pursuant to the Three Strikes law). Appellant’s sentence terms otherwise remained the
same. Accordingly, the sentence on count 4 was the only Three Strikes law prison
sentence in this case.
Appellant claims imposition of a Three Strikes law sentence was improper. He
argues (1) the record fails to show the trial court examined court’s exhibit No. 2, and
(2) the trial court never made “a finding as to the prior on the date set for sentencing.” We
reject his claim.
First, the trial court knew it was presiding over a court trial in which the only issues
were whether court’s exhibit No. 2 proved beyond a reasonable doubt that (1) a person
suffered a sustained juvenile petition in case No. PJ40364 for a 2007 robbery, and (2) that
robbery was a strike. We presume the court knew established law (Mosley, supra,
53 Cal.App.4th at p. 496), i.e., we presume the court knew it was required to examine
court’s exhibit No. 2 to determine if the above two issues had been proven. We also
20
Court’s exhibit No. 2 has been transmitted to this court. The exhibit contains
certified copies of court records reflecting on November 26, 2007, appellant admitted an
allegation in a petition in case No. PJ40364 that he committed second degree robbery on or
about October 23, 2007, and, based on that admission, the court in that case sustained the
petition. There is no dispute that, based on court’s exhibit No. 2, a rational trier of fact
could conclude beyond a reasonable doubt that (1) a person suffered a sustained juvenile
petition in case No. PJ40364 for a 2007 robbery, and (2) that robbery was a strike.
38
presume an official duty has been regularly performed. (Evid. Code, § 664.) We conclude
the trial court performed its official duty and examined the exhibit.
Second, on March 2, 2010, appellant admitted the identity issue as to the prior.
On May 27, 2010, the court sentenced appellant on count 4 as previously quoted. That
Three Strikes law sentence implied determinations someone suffered a sustained juvenile
petition for a 2007 robbery, a strike, in case No. PJ40364, and implied a finding appellant
suffered that strike. (Cf. People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17.)
11. There Is No Need to Decide Whether the Parole Revocation Fine Must Be Stricken.
As mentioned, on May 27, 2010, the court sentenced appellant as indicated in
footnote 14, ante, and, on July 16, 2010, the court resentenced appellant by modifying
nunc pro tunc his sentence for the Molina murder (count 1) only. The court thus imposed,
as to the substantive offenses only, an indeterminate life sentence on count 1, life without
the possibility of parole on count 3, and an indeterminate life sentence on count 4. As to
count 2, the court stated, “The court imposes the midterm of two years. That is stayed
pursuant to Penal Code section 654.” As to count 5, the court stated, “The court imposes
the midterm of three years in state prison. That is stayed pursuant to Penal Code section
654.” The court imposed a $10,000 section 1202.4, subdivision (b), restitution fine and a
$10,000 section 1202.45, parole revocation fine.
Appellant claims imposition of the parole revocation fine was error (because
appellant’s sentence included an LWOP sentence). (See People v. Brasure (2008)
42 Cal.4th 1037, 1075; Carr, supra, 190 Cal.App.4th at p. 482, fn. 6; People v. Oganesyan
(1999) 70 Cal.App.4th 1178, 1183-1186.) However, there is no need to decide this issue
since we are vacating appellant’s LWOP sentence and remanding for resentencing.
39
DISPOSITION
The judgment is affirmed, except appellant’s May 27, 2010, sentence, and July 16,
2010, resentence, are vacated and the matter is remanded for resentencing consistent with
this opinion.21 The trial court is directed to forward to the Department of Corrections an
amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
I concur:
ALDRICH, J.
21
Due to the unavailability of the third member of the panel which heard this matter
(Associate Justice H. Walter Croskey passed away on August 29, 2014), this opinion is
being filed with the concurrence of the two remaining members of the panel. (Cal. Const.,
art. VI, § 3 [“Concurrence of 2 judges present at the argument is necessary for a
judgment”]; see People v. Castellano (1978) 79 Cal.App.3d 844, 862.)
40