People v. Camel

Filed 2/21/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C075573
Plaintiff and Respondent, (Super. Ct. No. SF114327A)
v.
PERCY LAMONTE CAMEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, George J.
Abdallah, Jr., Judge. Affirmed as modified.
Mark Farbman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts III through VII.
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Defendant Percy Lamonte Camel killed two men in separate criminal incidents.
Convicted of two counts of first degree murder and other crimes and sentenced to two
consecutive indeterminate terms of life without the possibility of parole and other terms,
he appeals.
Defendant contends that the trial court erred by determining (1) he did not have
standing to challenge a search of the trunk of a car parked on the front lawn of his
residence and (2) his trial attorney violated his right to effective assistance of counsel by
not proffering evidence of standing to the trial court in connection with the motion to
suppress. Even assuming for the sake of argument that defendant had standing to
challenge the search of the trunk of the car parked on his front lawn, the court‟s standing
determination did not cause prejudice because the car‟s trunk was searched under
authority of a search warrant. Defendant‟s ineffective assistance of counsel argument is
without merit for the same reason—absence of prejudice.
Defendant also contends that the trial court erred by denying his motion to
suppress evidence obtained by wiretap. Specifically, defendant asserts: (1) the court
employed the wrong probable-cause test, (2) the court improperly sealed documents
attached to the wiretap request, and (3) there was no probable cause supporting the
wiretap authorization. We conclude: (1) the court employed the correct probable-cause
test, (2) the court properly sealed the documents attached to the wiretap request, and
(3) there was probable cause to support the wiretap authorization.
In the unpublished part of this opinion, we address defendant‟s remaining
contentions on appeal and find that some of them require modification of the judgment.
We therefore modify the judgment and affirm it as modified.
BACKGROUND
Defendant committed the crimes mainly in two separate incidents: the Skyline
incident in December 2009, and the USA Gas incident in February 2010.
2
Skyline Incident
On December 1, 2009, Roberto Hernandez drove his car, with his friends
Alejandro Salazar and Jorge Sanchez as passengers, toward Red Sea Market in Stockton.
On the way, they saw defendant in his distinctive purple Oldsmobile (also referred to in
the record at times as a purple Buick), driving methodically up and down streets in the
neighborhood. Hernandez and his friends believed defendant was looking for them and,
desiring to avoid a confrontation with defendant, Hernandez and his friends drove to
Sheba Liquors instead. When they arrived, however, defendant was already there in the
parking lot.
Still in his Oldsmobile, defendant leaned out of the driver‟s window and yelled,
“I‟m going to kill you all.” Hernandez drove out of the parking lot. While Hernandez
drove, Sanchez fired a shot. Salazar did not know Sanchez was armed and was upset
with him for firing. Salazar had known defendant for years. They played baseball and
socialized together when they were younger, but their relationship had become
confrontational, with defendant accusing Salazar of disrespecting him.
In the afternoon of the same day, possibly about 30 minutes after the confrontation
at Sheba Liquors, Hernandez dropped off his car at his home and went with Salazar,
Sanchez, and other friends to Skyline Drive to drink sodas and smoke marijuana, while
hiding from defendant. As Hernandez and Salazar were standing on the sidewalk, more
than nine shots were fired in rapid succession from behind bushes on a nearby street
corner. The gunman was African-American, in his early twenties, with the same build
and complexion as defendant, and he was wearing what appeared to be the same hooded
sweatshirt defendant was wearing when Hernandez, Salazar, and Sanchez encountered
him at Sheba Liquors. As soon as the shots ceased, a car was heard fleeing the scene at a
high rate of speed.
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Hernandez was shot in the pelvic and chest areas and bled to death. Salazar was
shot in the left leg and left arm, which required surgery on his arm. He was in the
hospital for two or three weeks.
Thirteen shell casings from rounds shot from a semiautomatic pistol were found
where the gunman had been.
Salazar identified defendant as the gunman.
USA Gas Incident
During the evening of February 6, 2010, Francisco Bernardino, Raul Abundes, Jr.,
Vincente Cardenas, and other friends (including Jorge Sanchez, who was present during
the Skyline incident) went together from Stockton to the Palladium Nightclub in
Modesto. The same evening, defendant went to the Palladium Nightclub with Chris
Padilla and others. At the nightclub, Cardenas punched Padilla.
After the nightclub closed, both groups returned to Stockton. Defendant went to
his house to get a gun, and drove around with his friends, looking for Cardenas.
Bernardino dropped Cardenas off at his home and went to the USA Gas station with
Abundes. They eventually parked next to the gas station.
As they sat in the car around 4:00 a.m. on February 7, 2010, and while Abundes
was showing Bernardino a photo of his grandfather who had recently passed away, two
gunmen fired about 30 shots at them in rapid succession from behind the car. Bernardino
was hit more than 15 times and died at the scene. Abundes was hit several times but
survived.
Twenty-four casings from a .30-caliber carbine rifle were found closely clustered
behind the car, as well as a cluster of eight nine-millimeter casings.
During the morning on the same day as the USA Gas shootings, defendant called
Padilla and told him that he shot some friends of Cardenas. Defendant also told Padilla
that he had committed the Skyline shooting. A male caller left a voicemail message on
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Cardenas‟s cell phone, saying, “Go pick up your boy at the gas station. I think he‟s dead.
Ha ha ha ha.”
Cell phone records showed that defendant‟s cell phone was in the area of both
incidents when they occurred. And officers searching defendant‟s residence found a .30-
caliber M1 carbine semiautomatic rifle in the trunk of a green Saturn on the front lawn.
Testing established that the M1 rifle found at defendant‟s residence was used in the USA
Gas shooting.
Defendant was convicted by jury and sentenced by the court, as follows:
Skyline Incident
 Count 1: first degree murder (Pen. Code, § 187, subd. (a))1 of Roberto Hernandez,
with a multiple-murder special circumstance (§ 190.2, subd. (a)(3); life without the
possibility of parole.
o True findings on count 1:
 Intentional and personal discharge of firearm causing death
(§ 12022.53, subd. (d)); consecutive 25 years to life.
 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
 Count 2: willful, deliberate, and premeditated attempted murder of Alejandro
Salazar (§§ 664, 187, subd. (a)); consecutive 15 years to life.
o True findings on count 2:
 Intentional and personal discharge of firearm causing great bodily
injury (§ 12022.53, subd. (d)); concurrent 25 years to life.
 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
1 Hereafter, citations to an unspecified code are to the Penal Code.
5
 Count 3: Shooting at an inhabited dwelling (§ 246); concurrent seven years.
o True finding on count 3:
 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
 Count 4: prohibited person in possession of a firearm (§ 12021, subd. (e));
consecutive three years.
USA Gas Incident
 Count 5: first degree murder (§ 187, subd. (a)) of Francisco Bernardino, with a
multiple-murder special circumstance (§ 190.2, subd. (a)(3)); life without the
possibility of parole.
o True findings on count 5:
 Intentional and personal discharge of firearm causing death
(§ 12022.53, subd. (d)); consecutive 25 years to life.
 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
 Personal use of an assault weapon (§ 12022.5, subd. (b));
consecutive 10 years.
 Count 6: willful, deliberate, and premeditated attempted murder of Raul Abundes
(§§ 664, 187, subd. (a)); consecutive 15 years to life.
o True findings on count 6:
 Intentional and personal discharge of firearm causing great bodily
injury (§ 12022.53, subd. (d)); concurrent 25 years to life.
 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
 Personal use of an assault weapon (§ 12022.5, subd. (b)); concurrent
10 years.
 Count 7: shooting at an occupied motor vehicle (§ 246); concurrent seven years.
o True findings on count 7:
 Intentional and personal discharge of firearm causing great bodily
injury or death (§ 12022.53, subd. (d)); concurrent 25 years to life.
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 Personal use of a firearm (§ 12022.5, subd. (a)); 10 years stayed.
 Personal use of an assault weapon (§ 12022.5, subd. (b)); 10 years
stayed.
 Count 8: possession of an assault weapon (§ 12280, subd. (b)); three years stayed.
 Count 9: prohibited person in possession of a firearm (§ 12021, subd. (e)); three
years stayed.
Additional Counts
 Count 10: possession of an assault weapon (§ 12280, subd. (b)); three years
stayed.
 Count 11: prohibited person in possession of a firearm (§ 12021, subd. (e)); three
years stayed.
Additional factual and procedural background is included in the Discussion as
relevant to the issues raised.
DISCUSSION
I
Motion to Suppress
Defendant contends that his Fourth Amendment rights were violated by the search
of a vehicle in the front yard of his residence, and, if his claim fails for lack of standing,
as the trial court concluded, his Sixth Amendment right to counsel was violated by his
attorney, who failed to present evidence of standing. Neither contention has merit.
A. Background
Before trial, on August 12, 2011, defendant filed a motion to suppress evidence
obtained from the search of a green Saturn located in the front yard of his residence. The
search was based on two search warrants issued with respect to defendant‟s residence.
The first warrant specifically described two other vehicles but also included
authorization to search “any vehicles under the control of [the real property] or the
occupants of the premises to be searched, at the time the warrant is to be served as
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established by DMV documents and records, possession of keys or actual use of the
vehicles and/or statements of the witnesses.”
During the search under the first warrant, the officers found the green Saturn. An
officer asked defendant‟s mother who owned the vehicle, and the mother said it belonged
to a friend named Yolanda, who had left the vehicle on her property. A records check
revealed that a release of liability was issued to defendant‟s mother.
An officer began to search the green Saturn under authorization of the first
warrant. He opened the trunk and found a rifle with a pistol grip handle. Upon making
this discovery, the search of the green Saturn was suspended and officers sought and
obtained a second warrant specifically authorizing a search of the green Saturn. The rifle
found in the trunk of the green Saturn turned out to be the .30-caliber M1 carbine rifle
used in the USA Gas incident.
In his motion to suppress, defendant argued: “There was never probable cause to
justify a search of the green 1997 Saturn at issue, so the First Warrant was consequently
overbroad and accordingly invalid as a basis for a search of that Saturn. The Second
Warrant, issued without any further probable cause than its predecessor, is tainted by the
fruit of the poisonous tree gained from the First Warrant, as are any observations of and
seizures from the green 1997 Saturn made under its authority.”
Relying on the affidavits filed by the Stockton Police Department in support of the
issuance of the two search warrants, defendant argued at the hearing on his motion to
suppress that he had standing—a reasonable expectation of privacy—as to the green
Saturn parked in the yard of his residence. On October 7, 2011, the trial court denied the
motion to suppress, finding that the affidavits did not support defendant‟s standing
argument.
On January 13, 2012, defendant requested permission to renew his motion to
suppress, claiming that evidence had been discovered that defendant owned the green
Saturn. A witness said the green Saturn belonged to defendant, it had a blown engine or
8
other problem, and the witness and defendant sat in the vehicle to smoke marijuana. The
witness never saw defendant work on the vehicle. The trial court granted the request to
renew the motion to suppress, but defendant later, on May 1, 2012, withdrew the renewed
motion because he was unable to locate the witness.
On December 10, 2012, defendant again requested permission to renew his motion
to suppress, and the trial court granted the request. Defendant presented evidence of a
witness‟s statements that (1) the green Saturn was parked on the lawn in front of
defendant‟s residence, (2) it had been sitting in the same spot for several months, (3) the
witness never saw defendant driving the vehicle, (4) the witness did not know whether
defendant kept his belongings in the vehicle, (5) the vehicle did not run, (6) the witness
and defendant entered the vehicle to smoke marijuana. (7) the witness never saw
defendant work on the vehicle, and (8) the witness never saw anyone else enter the
vehicle. Opposing the motion to suppress, the prosecution submitted a statement by
defendant denying ownership or any possessory interest in the vehicle. Having
reconsidered the motion to suppress, the trial court again denied it, finding that there was
no standing.
B. Analysis
Defendant asserts he presented sufficient evidence to establish standing to
challenge the search of the green Saturn. In the alternative, he asserts his attorney
violated his Sixth Amendment right to counsel by failing to submit available evidence of
standing.
1. Standing
We need not determine whether the trial court erred with respect to the standing
determination because, even assuming for the sake of argument defendant had standing to
challenge the search of the green Saturn, defendant fails on appeal to establish prejudice
in the trial court‟s determination that defendant did not have standing.
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When a trial court errs with respect to a motion to suppress, we cannot reverse
unless there is a miscarriage of justice. (Cal. Const., art. VI, § 13.) If the error was
harmless beyond a reasonable doubt, there is no miscarriage of justice. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]; People v. Tewksbury (1976) 15
Cal.3d 953, 972 [any error in denial of suppression motion analyzed under harmless-
beyond-a-reasonable-doubt standard].)
In his appellate claim that the trial court‟s standing determination caused
prejudice, defendant focuses on whether, without the evidence obtained from the green
Saturn, including the rifle used in the USA Gas incident, it would have been more
difficult to convict him. By focusing on that question, he neglects preliminary steps he
must take to successfully establish prejudice. Specifically, he has failed to establish that,
if the trial court had found standing, it would have necessarily found that his Fourth
Amendment rights were violated, thus requiring suppression of evidence. Defendant is
not entitled to assume that the motion to suppress would have been granted if the trial
court found standing. We conclude that the motion to suppress would have been denied,
even if the trial court had found standing, because the first warrant allowed the officers to
search the green Saturn.
The first warrant issued with respect to defendant‟s residence allowed officers to
search “any vehicles” on the property. That category included the green Saturn, which
was on the front lawn. Therefore, the search of the green Saturn was done pursuant to a
warrant.
Defendant notes in his opening brief that, in the trial court, he argued the first
search warrant was overbroad to the extent the “any vehicles” language allowed a search
of the green Saturn. However, he neither renews that argument in his opening brief nor
cites authority for the proposition that the first warrant was overbroad to the extent the
“any vehicles” language of the warrant allowed a search of the green Saturn. (See People
v. Stanley (1995) 10 Cal.4th 764, 793 [failure to cite authority forfeits appellate review of
10
issue].) On its face, the first warrant allowed a search of the green Saturn because it was
within the scope of the “any vehicles” language of the warrant.
Even in his points and authorities in support of his motion to suppress before trial,
where defendant argued that the first warrant was overbroad, he provided no authority for
that proposition. He argued, without authority, that nothing in the affidavit supporting
the search warrant connected defendant to the green Saturn.
In any event, the first warrant was not overbroad as to the “any vehicles”
provision. Whether a warrant is sufficiently particular is a question of law subject to
independent review by an appellate court. (People v. Eubanks (2011) 53 Cal.4th 110,
133.) In analyzing this question, we consider the purpose of the warrant, the nature of the
items sought, and the totality of the circumstances surrounding the case. “A warrant that
permits a search broad in scope may be appropriate under some circumstances, and the
warrant‟s language must be read in context and with common sense. [Citation.]” (Id. at
pp. 133-134.)
Defendant was identified in the affidavit as the principal suspect in the crimes, and
it was reasonable to believe he may have stashed evidence of his crimes in a vehicle on
the premises other than the vehicles he had been seen driving. The same probable cause
that connected defendant to the inside of the residence also connected him to the
inoperative green Saturn on the front lawn. Thus, the first warrant was not overbroad in
that it allowed the officers to search for evidence of the crimes in the green Saturn. The
first warrant did not violate the Fourth Amendment, and the trial court would have
properly denied his motion to suppress, even if it had found standing.
2. Effective Assistance of Counsel
In a video made by defendant, seized by law enforcement, provided to the defense,
and used as evidence against defendant at trial, defendant briefly shows the green Saturn
and refers to it as “my little Saturn.” Defendant contends on appeal that his attorney‟s
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failure to provide this evidence in support of his standing to challenge the search of the
green Saturn violated his right to counsel.
To prevail on his ineffective assistance claim, defendant must show (1) “counsel‟s
performance was deficient,” and (2) “the deficient performance prejudiced the defense.”
(Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)
As to the first prong—deficient performance—a “strong presumption” exists that
counsel acted professionally. (Strickland, supra, 466 U.S. at p. 689.)
As for the second prong—prejudice—“[d]efendant must show that there is 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.” (Strickland, supra, 466 U.S. at p.
694.) “[A] court need not determine whether counsel‟s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies . . . . 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.” (Id. at p. 697.)
This is a case in which it is easy to dispose of the ineffectiveness claim based on
the absence of prejudice. As discussed above, even if the trial court had found that
defendant had standing to challenge the search of the green Saturn, it would have
properly denied defendant‟s motion to suppress because the green Saturn was searched
lawfully under the first warrant. Since there was no probability that counsel‟s failure to
present the video evidence in connection with the motion to suppress would have
produced a different result for defendant, his claim that his attorney violated his right to
counsel is without merit.
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II
Wiretap Application
In the trial court, defendant moved to suppress evidence obtained by wiretap, and
the court denied the motion. On appeal, defendant contends: (1) the court employed the
wrong test for probable cause in considering the motion to suppress, (2) the documents
attached to the wiretap request were improperly sealed, and (3) there was no probable
cause supporting the wiretap authorization. As noted above, we conclude: (1) the court
employed the correct test for probable cause, (2) the documents attached to the wiretap
request were properly sealed, and (3) there was probable cause to support the wiretap
authorization.
A defendant who believes that evidence was “obtained in violation of the Fourth
Amendment of the United States Constitution or of [California‟s Wiretap Act2]” may
move to suppress its use at trial. (§ 629.72.) Such a motion is “subject to review in
accordance with the procedures set forth in Section 1538.5.” (§ 629.72; People v.
Jackson (2005) 129 Cal.App.4th 129, 145-146 (Jackson).)
Under the current version of the Wiretap Act, “the designated judge may authorize
a wiretap if [1] there is probable cause to believe that an individual has committed, is
committing, or is about to commit one or more of the listed crimes (§ 629.52, subd. (a));
[2] there is probable cause to believe that communications concerning the illegal
activities will be obtained through that interception (§ 629.52, subd. (b)); [3] there is
probable cause to believe that the communications device will be used by the person
whose communications are to be intercepted (§ 629.52, subd. (c)); and [4] „[n]ormal
investigative procedures have been tried and have failed or reasonably appear either to be
2 We refer to the Presley-Felando-Eaves Wiretap Act of 1988 (§ 629.50 et seq.) as
the Wiretap Act.
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unlikely to succeed if tried or to be too dangerous‟ (§ 629.52, subd. (d)).” (People v.
Leon (2007) 40 Cal.4th 376, 384 (Leon).)
“The magistrate‟s determination of probable cause is entitled to deferential review.
[Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1041.)
“The analysis of a [wiretap] suppression motion focuses on violations of the
statutory procedures and not on constitutional violations, because while it is possible to
violate a core principle of the statute without violating the Fourth Amendment it would
not seem possible to violate the Fourth Amendment without also violating a core
statutory principle.” (Jackson, supra, 129 Cal.App.4th at p. 149.) Therefore, the first
question to be answered in analyzing a motion to suppress wiretap evidence is whether
the defendant established a violation of the Wiretap Act. If the defendant did not
establish a violation of the Wiretap Act, there is no constitutional violation and no
suppression. (Ibid.)
A. Background
During the investigation of defendant‟s crimes, the district attorney‟s office filed
an application for a wiretap authorization. The application asserted that: (1) defendant
committed murder and other crimes; (2) a wiretap of his cell phone would yield evidence
of the crimes; (3) the cell phone was commonly used by defendant; and (4) normal
investigative techniques were ineffective or too dangerous.
In support of the wiretap application, the district attorney‟s office filed an affidavit
of Detective Kathryn Nance of the Stockton Police Department. The affidavit described
defendant and identified his cell phone. It also set forth facts relating to nine incidents
that Detective Nance asserted were support for the necessary probable cause
determinations.
In Incident One, someone pulled up in a black and gray Lexus next to Roberto
Hernandez and shot at him. Hernandez was not struck, but his car was. He knew who
the gunman was but would not identify the gunman to the officer who spoke to him.
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In Incident Two, someone shot Roberto Hernandez and Alejandro Salazar.
Hernandez died of his injuries. Salazar told the officer that he believed defendant was the
gunman because there had been problems between Hernandez and defendant. Salazar
had heard that defendant was responsible for the shooting in Incident One. Defendant, in
a purple Buick, had been following Hernandez and Salazar earlier that day. Salazar
identified a photo of defendant. Jose Cordova was present during the shooting but did
not see the gunman. Hernandez had told him earlier that he had some problems with
some “black people.” David Jimenez saw the shooting and saw a person with dark skin,
wearing a hoodie, in an area where shell casings were later found. Jorge Sanchez said he
had seen defendant in a purple Buick and had heard he also drove a Lexus. Sanchez saw
the shooting and said that an “Asian guy and a black guy were shooting from the bushes.”
Sanchez did not know defendant but heard that defendant was the one who shot at
Hernandez. A police detective questioned defendant about the shooting. Defendant told
the detective he had a gray Lexus and a purple Buick. Defendant gave the detective his
cell phone number, and the detective later called defendant and talked to him at that
number.
In Incident Three, someone in a group of men on foot shot at a passing car, killing
one of its occupants. Defendant‟s Lexus was found in the area, but defendant did not
appear to claim his car.
In Incident Four, an anonymous caller said he saw defendant in a purple car, along
with other Black males, get into an argument with Hispanic males in a white car.
Eventually, gunfire was exchanged. The caller was upset that defendant had not been
arrested for killing Hernandez, and the caller reported that defendant had an AK47-type
rifle. An independent report verified that there had been gunfire in the area at the time
reported by the anonymous caller.
In Incident Five, an anonymous caller said that several Black and Hispanic males
were inside a vacant house with AK47 rifles. When officers arrived at the vacant house,
15
someone peeked out a side door and immediately went back in. Several Black and
Hispanic males ran out of the house, escaping through backyards. The officers found two
rifles inside the house. A confidential attachment to the affidavit in support of the
wiretap request related to this incident.
In Incident Six, a Black male shot at a group of Hispanic males, hitting three of
them. When shown a photo lineup including defendant, one of the victims said he
thought that defendant looked like the gunman.
In Incident Seven, a Black male and another person shot at two victims as they sat
in their car near the USA Gas station. Both victims were injured, and one of them died.
Earlier that evening, defendant‟s cousin Maurice had been in an altercation with friends
of the victims at a nightclub in Modesto. Several anonymous callers reported to officers
that defendant told them that he was one of the gunmen involved in the USA Gas incident
and was the gunman involved in the death of Roberto Hernandez, and the deceased
victim‟s father also heard that his son had been killed by defendant.
In Incident Eight, a detective drove to defendant‟s home and watched while
defendant answered a phone call from another detective. They did this to verify that the
phone was in defendant‟s possession.
Incident Nine was detailed in a confidential attachment because it involved
information from a confidential informant who had been reliable in giving information to
the Stockton Police Department in the past. We need not give the details of this
confidential attachment.
The incidents all took place from October 2009 to February 2010.
Based on the incidents summarized in the application for wiretap authorization,
Detective Nance expressed the belief that “[defendant] is responsible and involved in the
aforementioned cases. He is closely tied with all of the people described above and has
been named as being involved by Confidential Reliable Informants, anonymous callers
and victims of the above-described crimes. Based on the information obtained up to this
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point in the investigation, your affiant believes that he was not acting alone while
committing the crimes. At this point in the investigation, the other people involved have
not been identified or located. It is believed that [defendant] is in contact with these
[co]conspirators. It is believed that [defendant] will have further communications about
the prior crimes and other shootings being planned and the intended victims.”
Detective Nance also gave facts concerning the Stockton Police Department‟s use
of available investigative approaches and the necessity for using a wiretap to obtain
further evidence. We need not provide those details here.
The judge authorized the wiretap and ordered that the application and court order
be sealed.
Before trial, defendant asked the court to unseal the attachments to Detective
Nance‟s affidavit in support of the wiretap request. Defendant also moved to suppress
evidence obtained as a result of the wiretap.
The trial court denied the motion to unseal the attachments and denied the motion
to suppress evidence obtained as a result of the wiretap, finding, under the totality of the
circumstances, there was probable cause to issue the wiretap authorization.
B. Analysis
1. Probable-cause Test
Defendant claims that the trial court erred by testing the reliability of the affidavits
filed in support of the wiretapping order using a totality-of-the-circumstances test rather
than employing a standard that requires particularized corroboration of informant tips, a
test known as the Aguilar-Spinelli test (Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d
723] (Aguilar); Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637]
(Spinelli)). Defendant claims that, although the United States Supreme Court discarded
the Aguilar-Spinelli test in favor of a totality-of-the-circumstances test in Illinois v. Gates
(1983) 462 U.S. 213 [76 L.Ed.2d 527] (Gates), affidavits in support of wiretap
authorizations in California must be tested using the Aguilar-Spinelli test because (1) the
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Wiretap Act was enacted after Proposition 8‟s truth-in-evidence provision was added to
the California Constitution and (2) the Wiretap Act was passed by at least a two-thirds
vote in each houses of the Legislature, thus excepting it from the truth-in-evidence
provision. The contention is without merit because, even though the wiretap statute was
adopted by a two-thirds vote of each house of the Legislature after Proposition 8 was
passed, there is no indication that the Legislature intended to adopt the Aguilar-Spinelli
test. In other words, the Legislature could have, but did not, adopt the Aguilar-Spinelli
test for wiretap probable-cause determinations.
In the 1960‟s, the United States Supreme Court formulated a test to determine
whether allegations of an informant, supplied to the magistrate by hearsay, are sufficient
to establish probable cause for a warrant (in general, and not necessarily with respect to a
wiretap authorization). This Aguilar-Spinelli test required that the affidavit in support of
the warrant (1) allege the informant‟s statement in factual, rather than conclusionary,
language and establish the informant‟s personal knowledge and (2) contain sufficient
underlying factual information reasonably supporting the informant‟s credibility and the
information‟s reliability. (Aguilar, supra, 378 U.S. 108; Spinelli, supra, 393 U.S. 410;
see also People v. Smith (1976) 17 Cal.3d 845, 850.)
The California Supreme Court used the Aguilar-Spinelli test, as mandated by the
binding United States Supreme Court precedents of Aguilar and Spinelli, to review
California probable-cause determinations. (See People v. Smith, supra, 17 Cal.3d at p.
850.) According to the California Supreme Court, the Aguilar-Spinelli test was “ „a
convenient shorthand articulation of previously established principles of California law in
the area of hearsay affidavits.‟ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744,
768, fn. 3 (Belmontes), overruled on other grounds in People v. Cortez (2016) 63 Cal.4th
101, 118, and People v. Doolin (2009) 45 Cal.4th 390, 421.)
In Gates, decided in 1983, the United States Supreme Court “abandon[ed]” the
two-pronged Aguilar-Spinelli test for determining probable cause and in its place adopted
18
a “totality-of-the-circumstances analysis that traditionally has guided probable-cause
determinations.” (Gates, supra, 462 U.S. at pp. 233, 238.) The court described the new
test: “The task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him,
including the „veracity‟ and „basis of knowledge‟ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is simply to ensure that the
magistrate had a „substantial basis for . . . [concluding]‟ that probable cause existed.
[Citation.]” (Id. at pp. 238-239.) The Gates court reasoned that the totality-of-the-
circumstances test is a “practical, nontechnical conception.” (Id. at p. 231.) Therefore,
the court concluded that the “rigid” “two-pronged [Aguilar-Spinelli] test” was not
suitable for testing probable cause. (Gates, supra, 462 U.S. at pp. 230-231 & fn. 6.)
Before 1982, California courts imposed their own rules and tests on the
admissibility and exclusion of evidence obtained by search and seizure. Many of these
rules and tests were based on independent state grounds more restrictive, as to admission
of evidence, than was required by the United States Constitution, as interpreted by the
United States Supreme Court. (See, e.g., People v. Brisendine (1975) 13 Cal.3d 528,
548-552 (Brisendine), abrogated by Prop. 8 [independent state grounds].)
In 1982, California voters passed Proposition 8, eliminating independent state
grounds as a means for exclusion of evidence. The truth-in-evidence provision of
Proposition 8 prohibited exclusion of relevant evidence unless the United States
Constitution requires exclusion. As an exception, Proposition 8 allowed exclusion of
relevant evidence admissible under the United States Constitution only if a subsequent
statute, passed by a two-thirds vote of each house of the Legislature, provided for
19
exclusion.3 (Cal. Const., art. I, § 28, subd. (f)(2).) “Proposition 8 . . . eliminate[d] a
judicially created remedy for violations of the search and seizure provisions of the federal
or state Constitutions, through the exclusion of evidence so obtained, except to the extent
that exclusion remains federally compelled.” (In re Lance W. (1985) 37 Cal.3d 873, 886-
887, italics omitted.) The California Supreme Court concluded that “Brisendine and
other state-law-based search-and-seizure cases were superseded by the enactment of
Proposition 8. (See Cal. Const, art. I, § 28, subd. [(f)(2)] [right to truth-in-evidence
provision]; In re Lance W.[, supra,] 37 Cal.3d 873 [(Lance W.)] [upholding same].)”
(People v. Monge (1997) 16 Cal.4th 826, 873, fn. 4.)
After the United States Supreme Court decided Gates in 1983, Proposition 8 had
the effect of prohibiting California courts from using the two-pronged Aguilar-Spinelli
probable-cause test because use of that test could result in exclusion of evidence that
would be admissible under the Gates totality-of-the-circumstances test. As California
courts have recognized since Gates was decided, the truth-in-evidence provision requires
that the Gates totality-of-the-circumstances test must be applied in California to
determine probable cause for crimes committed after enactment of Proposition 8, not the
more rigid Aguilar-Spinelli test abandoned by the United States Supreme Court. (See
People v. Love (1985) 168 Cal.App.3d 104, 107-108 [applying Gates]; People v. Medina
(1985) 165 Cal.App.3d 11, 16-18 [same]; see also Belmontes, supra, 45 Cal.3d at p. 768,
fn. 3 [applying Aguilar-Spinelli because crime committed before Prop. 8]; People v.
Kershaw (1983) 147 Cal.App.3d 750, 754, fn. 2 [same].)
Six years after Proposition 8 passed, the Legislature adopted the Wiretap Act and
later amended it in 1995, as relevant here. (Stats. 1988, ch. 111, § 2, p. 450; Stats. 1995,
3 “Except as provided by statute hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature, relevant evidence shall not be excluded in
any criminal proceeding . . . .” (Cal. Const., art. I, § 28, subd. (f)(2).)
20
ch. 971, § 10, p. 7395.) This act “authorized specified law enforcement officials to apply
for a court order to intercept wire communications, but only where there was probable
cause to believe the target was involved in [specified crimes].” (Leon, supra, 40 Cal.4th
at p. 383.) So the Wiretap Act is a post-Proposition 8 statute passed by a two-thirds vote
of each house of the Legislature. “By its terms the truth-in-evidence clause [of
Proposition 8] does not apply to a statute „hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature.‟ Section 629.72 [providing for exclusion
of evidence] was enacted in 1995, 13 years after the adoption of the truth-in-evidence
clause. At the time of its enactment there were 40 members of the Senate. The bill
passed the Senate by a vote of 28 to two (92 percent). There were 80 members of the
Assembly. The bill passed by a vote of 62 to five (77.5 percent). Thus, suppression of
evidence under section 629.72 is not prohibited by the truth-in-evidence clause of the
California Constitution.” (Jackson, supra, 129 Cal.App.4th at pp. 152-153, fns. omitted.)
We therefore look to the terms of the Wiretap Act to determine what test to apply in
evaluating whether evidence obtained by wiretap must be suppressed.
Matters of statutory interpretation are questions of law subject to de novo review.
(People v. Simmons (2012) 210 Cal.App.4th 778, 790.) When we construe a statute, we
seek to determine and give effect to what the Legislature intended. And the most reliable
indicator of what the Legislature intended is found in the words used. (People v. King
(2006) 38 Cal.4th 617, 622.)
The Wiretap Act allows a defendant to move to suppress evidence obtained by
wiretap “only on the basis that the contents or evidence were obtained in violation of the
Fourth Amendment of the United States Constitution or of this chapter.” (§ 629.72.)
Notably, this provision does not provide for suppression of evidence if it is obtained in
violation of the California Constitution. The omission of other reasons for exclusion is
evidence of the Legislature‟s intent to limit exclusion to violations of (1) the United
States Constitution, which uses the Gates totality-of-the-circumstances test, and
21
(2) violations of the Wiretap Act. However, defendant argues that the language includes
exclusion of evidence obtained in violation of the California Constitution, invoking the
Aguilar-Spinelli test, because, in his words, “[t]he probable cause requirement of the
statutory scheme flows from . . . the California Constitution and thus plays a central role
in the wiretap statute and cannot be satisfied by other means.” (Fn. omitted.) This
argument, though creative, is unconvincing because nothing in the Wiretap Act evinces a
legislative intent to adopt the abandoned Aguilar-Spinelli test as an independent state
ground for exclusion of evidence.
In attempting to establish that the Legislature meant to adopt the Aguilar-Spinelli
test, defendant focuses on section 629.50, which requires the judge to make probable-
cause determinations when considering whether to authorize a wiretap.4 The statute does
not designate what probable-cause test to use. According to defendant, this failure to
designate a probable-cause test necessarily means that the Aguilar-Spinelli test must be
used because it is California‟s probable-cause test, as seen in the cases in which the
crimes were committed before Proposition 8 was passed. This argument, however,
contradicts the Legislature‟s express limitation of grounds for exclusion to violations of
the Fourth Amendment and of the Wiretap Act. (§ 629.72.) Section 629.50 does not
designate the test to be used in the probable-cause determination and does not evince a
legislative intent to exclude evidence when a violation is determined using the Aguilar-
Spinelli test. More likely, the Legislature, by not designating a test or including reference
to the California Constitution, intended the courts to use the same test used in all other
probable-cause determinations in California—the Gates totality-of-the-circumstances
4 For example, section 629.50 requires the court to determine whether probable
cause supports a belief that “additional communications of the same type will occur
thereafter” and, in the case of modification of a wiretap authorization, “the person or
persons identified in the original order have commenced to use a facility or device that is
not subject to the original order.” (Subd. (a)(5)&(8).)
22
test. (See People v. Love, supra, 168 Cal.App.3d at pp. 107-108 [applying Gates]; see
also Lance W., supra, 37 Cal.3d at p. 896 [Legislature did not intend to abrogate truth-in-
evidence provision by reenactment of § 1538.5].).)
If the Legislature, when enacting the Wiretap Act, had intended to adopt the
Aguilar-Spinelli test for determining probable cause and deciding whether to exclude
evidence obtained by wiretap, it could have done so expressly. It did not. Instead, it
expressly authorized exclusion of evidence only for violation of the Fourth Amendment
(which invokes the Gates totality-of-the-circumstances test) or a violation of the Wiretap
Act, itself. This inclusion of two bases for suppression and the omission of reference to
the California Constitution or a violation of rights determined using the Aguilar-Spinelli
test is compelling evidence the Legislature did not intend to exclude evidence as a result
of the application of the Aguilar-Spinelli test. (People v. Superior Court (Ramirez)
(1999) 70 Cal.App.4th 1384, 1391 [presumption that omission in statute is intentional].)
Finally, the Legislature intended the Wiretap Act to conform to federal law, as
reflected in title III of the Omnibus Crime Control and Safe Streets Act of 1968. (People
v. Zepeda (2001) 87 Cal.App.4th 1183, 1196.) Exclusion under federal law is necessary
only for violation of the Fourth Amendment or of the federal wiretap statute, not for any
California-specific reason.
Nothing in the Wiretap Act or its history convinces us the Legislature intended to
adopt the Aguilar-Spinelli test for determining probable cause in support of wiretap
authorization. Therefore, the trial court correctly applied the Gates totality-of-the-
circumstances test.
2. Sealing of Documents
On appeal, defendant asks us to review the sealed record of the in camera
proceedings, held in accordance with People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).
Having reviewed the sealed record, we conclude that the court fully complied with Hobbs
23
and correctly ordered that the two attachments to Detective Nance‟s affidavit to be
sealed.
A defendant may move to suppress evidence obtained as the result of a search
warrant on the ground there was no probable cause for the issuance of the warrant.
(§ 1538.5, subd. (a)(1)(B)(iii).) Under Hobbs, “[o]n a properly noticed motion by the
defense seeking to quash or traverse [a] search warrant” where any part of the search
warrant affidavit has been sealed, “the lower court should conduct an in camera
hearing . . . . It must first be determined whether sufficient grounds exist for maintaining
the confidentiality of the informant‟s identity. It should then be determined whether the
entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the
extent of the sealing is necessary to avoid revealing the informant‟s identity.” (Hobbs,
supra, 7 Cal.4th at p. 972, fn. omitted.)
We independently review the court‟s decision to seal a portion of the search
warrant affidavit. (See People v. Martinez (2005) 132 Cal.App.4th 233, 241-242.)
Based upon our review of the transcripts of the in camera proceedings and the
attachments to Detective Nance‟s affidavit, we conclude that the court did not err in
refusing to unseal the entire search warrant affidavit or in determining which portions had
to remain under seal in order to maintain the confidentiality of confidential informants.
3. Wiretap Authorization
Defendant contends that evidence obtained by wiretap should have been
suppressed because unsealed parts of Detective Nance‟s affidavit did not support the
necessary probable-cause determinations connecting defendant to the crimes. In making
this contention, defendant applies the two-pronged Aguilar-Spinelli test, attacking the
reliability and credibility of the affiant. However, as we established above, the Aguilar-
Spinelli test does not apply to a motion to suppress evidence obtained by wiretap. As a
result, defendant‟s contention that Detective Nance‟s affidavit did not provide sufficient
reliable and credible evidence to support the necessary probable-cause determination
24
applies the wrong test and is therefore without merit. Defendant‟s attack on the wiretap
authorization could succeed on appeal only if he were to establish that the trial court
erred under the totality-of-the-circumstances test. He makes no attempt to do that, so he
fails to establish that there was insufficient evidence to support the necessary probable
cause determinations in authorizing a wiretap. (See People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573 [appellant bears burden of affirmatively establishing error].) In
any event, Detective Nance‟s affidavit, including the sealed parts, recounted several
sources identifying defendant‟s probable involvement in the murders and the need for a
wiretap to develop the case against him and to identify any others involved in the crimes.
III
Motion to Sever
Defendant contends the trial court abused its discretion by denying his motion to
sever the Skyline incident from the USA Gas incident for trial. The contention is without
merit.
A. Procedure
Defendant moved to sever the Skyline counts from the USA Gas counts. He
claimed: (1) the evidence of the two incidents would not be cross-admissible because
there was no similar motive, plan, or weapons used between the two incidents; (2) the
USA Gas facts were more inflammatory than the Skyline facts; and (3) the evidence of
his guilt of the Skyline crimes was weaker than the evidence of his guilt of the USA Gas
crimes.
The trial court denied the motion and denied it again when defendant subsequently
renewed it. The court found that the evidence supporting both incidents was strong, there
was cross-admissibility of evidence as to motive (revenge) and common plan (ambush),
and neither incident would “unusually inflame the jury against the defendant.”
25
B. Law
Section 954 permits the joinder of “two or more different offenses of the same
class of crimes or offenses.” The law favors joinder of counts because it promotes
efficiency. (People v. Myles (2012) 53 Cal.4th 1181, 1200.) Even when joinder is
proper, the trial court may, “in the interests of justice and for good cause shown,”
exercise its discretion to order that different offenses or counts be tried separately. (§
954; see People v. Thomas (2012) 53 Cal.4th 771, 798 (Thomas).) “ „ “The burden is on
the party seeking severance to clearly establish that there is a substantial danger of
prejudice requiring that the charges be separately tried.” [Citation.]‟ ” (People v.
Bradford (1997) 15 Cal.4th 1229, 1315.)
If the trial court denies a motion to sever, the ruling is reviewed on appeal for
abuse of discretion. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) “In assessing
potential prejudice, we examine the record before the trial court at the time of its ruling.
The relevant factors are whether (1) the evidence would be cross-admissible in separate
trials, (2) some 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 may unfairly alter the outcome on some or all charges, and (4) one of the
charges is a capital offense, or joinder of the charges converts the matter into a capital
case. [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129,
disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
Cross-admissibility in both directions is not required. It is sufficient if evidence of
one crime is cross-admissible as to the other crime. (People v. Zambrano, supra, 41
Cal.4th at p. 1129 [“it is enough that the assaults were admissible in the murder case;
„two-way‟ cross-admissibility is not required”]; People v. Cunningham (2001) 25 Cal.4th
926, 985 [“complete cross-admissibility is not necessary to justify the joinder of
counts”].)
26
C. Analysis
Defendant renews his arguments on appeal. He contends that the trial court
abused its discretion by denying the motion to sever because: (1) the incidents were not
cross-admissible, (2) the facts of the USA Gas crimes were inflammatory, (3) the
stronger USA Gas case bolstered the weaker Skyline case, (4) joinder converted the
action into a capital case, and (5) the benefits of joinder were minimal.
Basing its decision on the evidence produced at the preliminary hearing, the trial
court properly denied defendant‟s motion to sever because the incidents were cross-
admissible—the motive and the plan were the same, supporting an inference that
defendant committed both crimes.
Defendant committed both shootings in revenge: the Skyline shootings were
defendant‟s response to his perception that Hernandez and his friends had disrespected
him and shot at him, and the USA Gas shootings were defendant‟s response to his friend
being punched at a nightclub earlier that evening. Defendant claims, because he was not
personally involved in the fight at the nightclub, the USA Gas shootings were not
revenge. To the contrary, defendant committed the USA Gas shootings in revenge
because his friend was hit at the nightclub in Modesto that night.
Defendant committed both shootings by ambushing the victims: defendant hid
behind a bush and shot the unsuspecting victims in the Skyline incident, and defendant
approached from behind the parked car at the USA Gas station and opened fire, thus
pouncing on the victims unsuspectedly in both incidents. In each incident, he used a
semiautomatic firearm and fired numerous shots quickly.
“ „Pursuant to Evidence Code section 1101, subdivision (b), evidence that a
defendant has committed an offense, although inadmissible to demonstrate a defendant‟s
disposition to commit crimes, may be received to establish, among other things, identity,
intent, motive, or plan. To be admissible to demonstrate a distinctive modus operandi,
the evidence must disclose common marks or identifiers, that, considered singly or in
27
combination, support a strong inference that the defendant committed both crimes.
[Citations.]‟ ” (People v. Carter (2005) 36 Cal.4th 1114, 1154-1155, italics omitted.)
The crimes need not be identical, but they must have commonalities, to be cross-
admissible. (Id. at p. 1155.) Here, the commonalities (revenge and ambush) were
sufficient to find cross-admissibility.
Cross-admissibility dispels any inference of prejudice. (People v. Bradford,
supra, 15 Cal.4th at p. 1316.) However, even assuming the two incidents were not cross-
admissible, the trial court did not abuse its discretion under the remaining relevant factors
by denying the motion to sever the two incidents.
First, the two incidents were both violent and egregious. To say that the USA Gas
crimes were more inflammatory than the Skyline crimes is to get unnecessarily and
unworkably fine in trying to predict a jury‟s reaction to such malevolent actions.
Second, the evidence of defendant‟s guilt as to one incident was not substantially
stronger than the evidence as to the other incident. As to the Skyline incident, the
evidence showed that defendant threatened to kill the victims within an hour before the
shootings. The description of the gunman fit defendant, including the sweatshirt
defendant was wearing when he threatened the victims. Cell phone records placed
defendant in the vicinity of the shootings. And Salazar identified defendant as the
gunman. As to the USA Gas incident, cell phone records again placed defendant in the
vicinity of the shootings. And testing established that the M1 carbine rifle in the trunk of
the green Saturn on defendant‟s front lawn was used in the shootings.
And third, although the joinder made possible the multiple-murder special
circumstance allegation, defendant proffers no authority that just this one factor alone
supports a finding that the trial court abused its discretion in denying the motion to sever.
We therefore conclude that the trial court did not abuse its discretion by denying
the motion to sever and defendant has not established that joinder of the two incidents for
28
trial “actually resulted in „gross unfairness,‟ amounting to a denial of due process.”
(People v. Arias (1996) 13 Cal.4th 92, 127.)
IV
Instructions on Lesser Included Offenses
Defendant contends that the trial court erred by not instructing, sua sponte, on the
lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter
as they related to the Skyline incident. We conclude that the trial court did not err
because, even assuming without deciding that the trial court should have given the
instructions, it is not reasonably probable that the failure to give the instructions affected
the outcome.
A. Background
Defendant limits this contention to the Skyline incident (counts 1 & 2) and does
not make the same contention as to the USA Gas incident.5
As to count 1 (the Skyline murder of Hernandez), the court instructed the jury
concerning the elements of murder, including malice. The court also instructed the jury
that it could render a verdict of first degree murder if it found that he (1) acted willfully,
deliberately, and with premeditation or (2) committed the murder by lying in wait. If the
jury found murder, but not first degree murder, it was required to render a second degree
murder verdict.
The jury convicted defendant of first degree murder on count 1.
As to count 2 (the Skyline attempted murder of Salazar), the court instructed the
jury concerning the elements of attempted murder. The court also instructed the jury that,
if it found defendant guilty of attempted murder, it would then be required to determine
whether the attempted murder was done with deliberation and premeditation. The
5 Defendant misidentifies the count numbers in his opening brief, but the context
and argument make it clear that he is making the contention only as to counts 1 and 2.
29
instruction included a definition of deliberation, meaning he “carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill.” The court cautioned the jury that “[a] decision to kill made rashly, impulsively, or
without careful consideration of the choice and its consequences is not deliberate and
premeditated.”
The jury convicted defendant of attempted murder on count 2. It also found that
the attempted murder was willful, deliberate, and premeditated.
The court did not instruct on voluntary manslaughter or attempted voluntary
manslaughter.
B. Law
A trial court must instruct on all lesser included offenses supported by the
evidence presented at trial. Substantial evidence is evidence from which a reasonable
jury could conclude that the lesser offense, but not the greater, was committed. (People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Manslaughter is the unlawful killing of a human being without malice.
(§ 192.) Voluntary manslaughter may occur in two limited circumstances: when the
defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in an
unreasonable but good faith belief in having to act in self-defense. (People v. Barton
(1995) 12 Cal.4th 186, 199.) Here, defendant does not assert the evidence supported
instructions on imperfect self-defense, so we consider only whether he acted in a heat of
passion.
Similarly, attempted murder is commission of a direct but ineffectual step toward
killing someone while intending to kill. (People v. Stone (2009) 46 Cal.4th 131, 136.)
For purposes of sentence enhancement, the prosecution may seek an additional jury
finding that an attempted murder was willful, deliberate, and premeditated. (§ 664, subd.
(a)); People v. Bright (1996) 12 Cal.4th 652, 669, overruled on another ground in People
30
v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Attempted murder may be reduced to
attempted involuntary manslaughter if the defendant attempted to kill in a heat of passion.
(People v. Van Ronk (1985) 171 Cal.App.3d 818, 824.)
In the context of voluntary manslaughter based on a killing done in the heat of
passion, there must be provocation sufficient to arouse the passions of a reasonable
person under the same circumstances. The fundamental inquiry is whether the
defendant‟s reason was “ „ “so disturbed or obscured by some passion . . . to such an
extent as would render ordinary men of average disposition liable to act rashly or without
due deliberation and reflection, and from this passion rather than from judgment.” ‟ ”
(People v. Wickersham (1982) 32 Cal.3d 307, 326, overruled on another ground in
People v. Barton (1995) 12 cal.4th 186, 200-201.)
To be entitled to voluntary manslaughter instructions under a heat of passion
theory, “the killing must be „upon a sudden quarrel or heat of passion‟ ( § 192); that is,
„suddenly as a response to the provocation, and not belatedly as revenge or punishment.
Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily
reasonable person to cool, the killing is murder, not manslaughter.‟ ” (People v. Daniels
(1991) 52 Cal.3d 815, 868.)
Adequate provocation must be affirmatively demonstrated; it cannot be left to
speculation. (People v. Williams (1969) 71 Cal.2d 614, 624.)
C. Analysis
Defendant argues that the trial court should have given the voluntary manslaughter
and attempted voluntary manslaughter instructions with respect to the Skyline incident
because there was evidence that some time before the Skyline incident, on the same day,
perhaps within a half-hour before the Skyline shootings, someone shot at defendant from
Hernandez‟s car, thus provoking defendant to a heat of passion. We need not determine
whether the trial court had a duty to instruct on voluntary manslaughter or attempted
voluntary manslaughter because the jury necessarily concluded that defendant did not act
31
in a heat of passion—it found that defendant acted willfully, deliberately, and with
premeditation, which is inconsistent with heat of passion.
“[A] trial court‟s failure to instruct on a lesser included offense is not prejudicial
if, as here, the jury necessarily resolved the factual question adversely to the defendant
under other instructions.” (People v. Mincey (1992) 2 Cal.4th 408, 438.)
Defendant argues we must apply the federal harmless-beyond-a-reasonable-doubt
standard because he is asserting that his federal constitutional rights were violated.
However, he concedes that California Supreme Court precedent establishes that the state
standard applies to the harmless error analysis when the trial court fails to instruct on a
lesser included offense. (Breverman, supra, 19 Cal.4th at p. 165.) We are therefore
bound to apply the state standard: “[S]uch misdirection of the jury is not subject to
reversal unless an examination of the entire record establishes a reasonable probability
that the error affected the outcome.” (Ibid.; Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
Here, given the opportunity to convict defendant of second degree murder and
attempted murder without premeditation and deliberation, the jury selected first degree
murder and attempted premeditated murder. In other words, it found that defendant did
not act rashly but instead, in the words of the court‟s instruction, “carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill.” (See People v. Wharton (1991) 53 Cal.3d 522, 572 [premeditation and deliberation
inconsistent with heat of passion].)
There is some ambiguity in the jury‟s first degree murder verdict because the
jury was given the option of rendering a first degree murder verdict based on either
(1) premeditation and deliberation or (2) lying in wait. And the verdict did not reveal
which the jury chose. The attempted murder verdict, however, is not similarly
ambiguous. The jury expressly found that defendant acted willfully, deliberately, and
with premeditation. Since the two crimes were committed by ambush virtually
32
simultaneously, in a quick spray of bullets, there could be no argument that, while the
jury found defendant acted with premeditation and deliberation with respect to the
attempted murder, defendant did not similarly act with premeditation and deliberation
with respect to the murder. Therefore, the verdict establishes that defendant did not act in
a heat of passion when he gunned down Hernandez and Salazar during the Skyline
incident.
Since there is no reasonable probability the failure to instruct the jury on voluntary
manslaughter and attempted voluntary manslaughter affected the outcome of this case,
any error in not giving those instructions was harmless.
V
Enhancement for Personal Use of Firearm
Defendant contends the trial court imposed an unauthorized sentence because it
imposed but did not stay punishment for an assault weapon enhancement under section
12022.5, subdivision (b) for the same count in which the court imposed a firearm
discharge causing death enhancement under section 12022.53, subdivision (d). We agree
that the statutory scheme required the trial court to stay the enhancement under section
12022.5, subdivision (b) as to counts 5 and 6.6
As to count 5, the murder of Francisco Bernardino, the trial court imposed three
firearm enhancements: (1) a consecutive 25 years to life under section 12022.53,
subdivision (d); (2) 10 years stayed under section 12022.5, subdivision (a); and (3) a
6 In his opening brief, defendant misstated which statute the trial court relied on to
impose the assault weapon enhancement. He wrote that it was section 12022.53,
subdivision (b), rather than section 12022.5, subdivision (b). The misstatement threw off
the Attorney General, who argued, correctly, that defendant was not sentenced under
section 12022.53, subdivision (b). In defendant‟s reply brief, he acknowledges the
misstatement. While defendant‟s argument in his opening brief was defective, he did not
forfeit it because the sentence is unauthorized. (People v. Scott (1994) 9 Cal.4th 331,
354.)
33
consecutive 10 years under section 12022.5, subdivision (b), for an aggregate consecutive
term of 35 years to life on the count 5 firearm enhancements.
As to count 6, the attempted murder of Raul Abundes, the trial court also imposed
three firearm enhancements: (1) a concurrent 25 years to life under 12022.53,
subdivision (d); (2) 10 years stayed under section 12022.5, subdivision (a); and (3) a
concurrent 10 years under section 12022.5, subdivision (b), for an aggregate concurrent
term of 35 years to life on the count 6 firearm enhancements.
At the time of defendant‟s crimes, section 12022.53, subdivision (f) provided, in
part: “Only one additional term of imprisonment under this section shall be imposed per
person for each crime. If more than one enhancement per person is found true under this
section, the court shall impose upon that person the enhancement that provides the
longest term of imprisonment. An enhancement involving a firearm specified in Section
. . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed
pursuant to this section.” (Stats. 2006, ch. 901, § 11.1, p. 7076.)
The California Supreme Court, in People v. Gonzalez (2008) 43 Cal.4th 1118, held
that section 12022.53, subdivision (f), “require[s] that, after a trial court imposes
punishment for the section 12022.53 firearm enhancement with the longest term of
imprisonment, the remaining section 12022.53 firearm enhancements and any section
12022.5 firearm enhancements that were found true for the same crime must be imposed
and then stayed.” (People v. Gonzalez, supra, at p. 1123.)
We therefore conclude that the trial court should have imposed and stayed the 10-
year term for the section 12022.5, subdivision (b) enhancement as to counts 5 and 6.7
7 Defendant, in his brief, did not make this argument as to the concurrent firearm
enhancements in count 6, but (1) the same principles apply and (2) as imposed the
sentence was unauthorized.
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VI
Sentence for Attempted Murder
As to counts 2 and 6, the attempted premeditated murders of Salazar and Abundes,
the court sentenced defendant to a consecutive indeterminate term of 15 years to life
each. However, the statutory term for attempted deliberate and premeditated murder is
life with the possibility of parole, not 15 years to life. (§ 664, subd. (a).) Defendant
contends that the trial court erred in sentencing him on counts 2 and 6, and the Attorney
General agrees.
A person found guilty of attempted murder is subject to a sentence of life with the
possibility of parole if the crime was willful, deliberate, and premeditated. (§ 664, subd.
(a).) A person sentenced to life with possibility of parole is not eligible for parole until a
term of seven years has been served, unless some other term is statutorily specified.
(§ 3046, subd. (a)(1).)
We also agree the trial court imposed the wrong term for attempted deliberate and
premeditated murder and will therefore modify the sentence.
VII
Sufficiency of Evidence of Firearm Possession
Defendant contends there was insufficient evidence to convict him of two separate
instances of possessing a weapon because he committed only one continuous possession
of the weapon. He claims we must strike the convictions predicated on his second
possession of the weapon because there was no evidence he lost possession in the
interim. We conclude the evidence is insufficient, as defendant contends, and that we
must strike the conviction on those counts, as well as the terms imposed but stayed for
those counts.
Based on his possession of the M1 assault rifle on February 7, 2010 (USA Gas
incident), and again on March 10, 2010 (search of green Saturn trunk), defendant was
convicted of two counts each (one for each date) of possession of an assault weapon
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(former § 12280, subd. (b); counts 8 & 10) and possession of a firearm by an adjudged
ward until 30 years of age (former § 12021, subd. (e); counts 9 & 11). Defendant
contends that counts 10 and 11 (based on finding the M1 rifle in the trunk of the green
Saturn) must be reversed. The trial court imposed but stayed three-year terms for counts
10 and 11.
Possession of a weapon in violation of former sections 12280, subdivision (b) and
12021, subdivision (e) is a continuing crime. (See People v. Mason (2014) 232
Cal.App.4th 355, 365 (Mason).) In Mason, the defendant was convicted of four counts of
violating former section 12021. He was proven to have possessed the same firearm on
four separate dates, corresponding to the dates of three shootings and the date the firearm
was recovered after he dropped it while fleeing from police. (Id. at pp. 363-364.) The
Court of Appeal reversed three of the four convictions because “there was no evidence
that [the defendant‟s] possession of the firearm was anything but continuous over the
period encompassing the four dates.” (Id. at p. 366.) The court explained: “The
Supreme Court has recognized that possession of a firearm by a felon is a continuing
offense. [Citations.] . . . [¶] „In the case of continuing offenses, only one violation
occurs even though the proscribed conduct may extend over [an] indefinite period.‟
[Citations.] Thus, our Supreme Court recognized more than 70 years ago that the Deadly
Weapons Act, from which former section 12021 is derived, „does not provide that it is an
offense for each day that the ex-convict is in possession of the weapon. . . .‟ [Citation.]”
(Id. at p. 365, quoting People v. Warren (1940) 16 Cal.2d 103, 112; see also Wright v.
Superior Court (1997) 15 Cal.4th 521, 525, fn. 1.)
So defendant cannot be convicted of multiple counts of the same possession
statute if he never relinquished possession of the weapon between the two dates.
However, here, the Attorney General claims there is sufficient evidence to support two
convictions based on interim relinquishment of the weapon. While the evidence relied on
by the Attorney General is some evidence defendant may have relinquished and regained
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possession of the M1 rifle during the relevant time, it does not constitute sufficient
evidence upon which the jury could draw a reasonable inference. (See People v. Memro
(1985) 38 Cal.3d 658, 695, overruled on other grounds, People v. Gaines (2009) 46
Cal.4th 172, 181 [evidence giving rise only to speculation or conjecture not substantial].)
The possession counts were based on defendant‟s possession of the M1 rifle on
February 7, 2010, and again on March 10, 2010.
On February 18, 2010, defendant had a cell phone conversation with an
unidentified caller. During the conversation, defendant told the caller he had an M1. The
caller asked how much defendant wanted for it, and defendant replied: “Think want
eight.” The caller said he might call defendant back about it.
On March 2, 2010, defendant had a cell phone conversation with another
unidentified caller. During the conversation about going to a location to acquire some
flat-screen televisions from other people, defendant said he would not go alone. The
caller said that “if you‟re by yourself, it don‟t matter, you got that .30 [the M1], don‟t
you?” Defendant replied: “A .9 [nine-millimeter].” The caller asked if it was the one
defendant showed him the day before, and defendant said that it was.
When the M1 rifle was analyzed for DNA samples, DNA from five different
people was found.
The Attorney General asserts that the evidence supported a conclusion by the jury
that there was in interruption in defendant‟s possession of the M1 rifle. We disagree.
While there was evidence that (1) defendant discussed the possibility of selling the rifle,
(2) also had a nine-millimeter weapon, and (3) was not the only one who touched the
rifle, there was no evidence that the M1 actually left defendant‟s control and possession
between the time of the USA Gas incident and the discovery of the rifle in the trunk of
the green Saturn. He may have considered selling the M1 rifle; he may have also had
another firearm; and other people may have touched the M1 rifle; but the only reasonable
37
inference is that defendant had possession of the M1 rifle from the time of the USA Gas
incident until it was found in the trunk of the inoperative car at defendant‟s residence.
Since there was insufficient evidence to support a reasonable inference defendant
relinquished and regained possession of the M1 rifle between the two relevant dates of
possession, we must strike the convictions on counts 10 and 11, relating to defendant‟s
possession of the rifle when it was discovered during the search of the green Saturn. We
also strike the terms imposed and stayed for those two counts.
DISPOSITION
As to count 5 and 6, the sentence is modified to stay the terms imposed under
section 12022.5, subdivision (b), pursuant to section 12022.53, subdivision (f).
As to counts 2 and 6, the term imposed for each attempted deliberate and
premeditated murder, exclusive of enhancements, is modified to life with the possibility
of parole. (§§ 664, subd. (a); 3046, subd. (a).)
As to counts 10 and 11, each conviction is struck, acquittal is entered for each
count, and the terms imposed for each count is struck.
As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment consistent
with this opinion and to send the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
MURRAY , J.
RENNER , J.
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