Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Ct. No. BA252069
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, Acting P. J.
A jury convicted Jose Castillo of first-degree murder (count 1); 4 counts of premeditated attempted murder (counts 2, 4, 5, and 6); and possessing a gun while a felon (count 3). On counts 1 and 2, the jury found Castillo and a principal discharged a firearm causing death or great bodily injury. On counts 1-2 and 4-6, the jury found Castillo and a principal discharged and used a firearm. On all counts, the jury found Castillo committed the crimes to further a gang’s purposes. The court imposed a 190 years-to-life aggregate sentence: on count 1, 25 years-to-life plus a consecutive 25 years-to-life term for personally discharging a firearm causing death; and on each of counts 2 and 4-6, consecutive terms of 15 years-to-life plus consecutive 20 years-to-life terms for personally discharging a firearm. The court stayed sentence on count 3 and the remaining enhancements.
Penal Code sections 187, subdivision (a), 189; 664, subdivision (a); 12021, subdivision (a)(1); 12022.53, subdivisions (b)-(e); 12022.5, subdivision (a); 186.22, subdivision (b)(1).
Castillo timely appealed. He contends the court erred in (I) denying his post-verdict motion to substitute new appointed counsel to litigate a new trial motion challenging trial counsel’s effectiveness, accepting an involuntary waiver of the right to counsel, and denying his pro-per new trial motion; (II) instructing the jury on concurrent intent for attempted murder of multiple victims in a “zone of risk [] termed ‘the kill zone[;]’” (III) imposing an excessive sentence constituting cruel and unusual punishment; and (IV) failing to stay a second restitution fine.
People v. Marsden (1970) 2 Cal.3d 118; Strickland v. Washington (1984) 466 U.S. 668; People v. Wright (1990) 52 Cal.3d 367, 404; Faretta v. California (1975) 422 U.S. 806.
The court instructed the jury under CALJIC No. 8.66.1 (Spring 2007 ed.; all further CALJIC references are to the Spring 2007 ed.) as follows: “A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed ‘the kill zone.’ [¶] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, is such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in the victim’s vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within the kill zone of risk, is an issue to be decided by you.”
We reject these contentions and affirm the judgment.
FACTS AND PROCEEDINGS BELOW
Castillo does not challenge the sufficiency of the evidence. Viewed in accord with the usual rules governing appellate review, the evidence disclosed that about 1 a.m. on July 26, 1999, five friends met in a restaurant parking lot at the corner of Adams and Crenshaw Boulevards in Los Angeles. Keitha Kertindall, Felix Rodriguez, and Michelle Walton were in one car, and Trevor Fuller and Sean Hislop arrived in separate cars. In that area, Crenshaw Blvd. separates the territory to the east, claimed by the Black P-Stone Bloods (hereafter Bloods) street gang, whose color is red, from the territory to the west, claimed by the rival Schoolyard Crips (hereafter Crips) gang, whose color is blue. During the summer of 1999 the two gangs, whose members primarily were African-American, were in the midst of a war involving numerous retaliatory shootings. The restaurant was in Bloods territory and was a known Bloods hangout. Rodriguez, confined to a wheelchair after being paralyzed in an earlier gang shooting, was a Bloods associate. Hislop, a Bloods member, was wearing a red St. Louis Cardinals baseball cap, identifying him to both gangs as a Bloods member. Kertindall’s car was red and Fuller’s car was burgundy, also suggesting a Bloods affiliation. Based on his statements, tattoos, and gang moniker, police knew Castillo was one of a few if not the only Hispanic active Crips member. Between June 1999 and January 2000, police issued Castillo three tickets when he was driving a light-colored, 1980s model station wagon, and saw him driving it many other times.
People v. Hill (1998) 17 Cal.4th 800, 848-849.
The five friends decided to drive a few blocks east to Fuller’s apartment to continue talking. As Kertindall drove out of the parking lot, she and Rodriguez saw a station wagon similar to Castillo’s drive slowly by with its occupants staring at them. Kertindall and Rodriguez got a good look at the driver. While en route to Fuller’s apartment, Rodriguez saw the station wagon slowly drive alongside them with its occupants staring at them.
The five friends parked their cars in the parking lot of Fuller’s apartment. As they spoke, the same station wagon they had seen while leaving the restaurant drove up. The man who had been driving the station wagon at the restaurant had switched to the front passenger seat and began firing a handgun at the group. A second car drove up and its occupants also opened fire at the group. The first shooter (the original driver) got out of the station wagon and walked closer, continuing to fire. Rodriguez, sitting in Kertindall’s car, obtained a handgun and returned fire. The first shooter jumped into one of the cars and both drove away. One shot killed Fuller, a second grazed Walton’s arm, but, despite the fusillade of shots, many of which struck Kertindall’s car, the other victims were unhurt.
Police recovered numerous shell casings from three different guns, none of which ever were linked to Castillo, and no other forensic evidence placed him at the crime scene. Although the victims described the driver/shooter and the station wagon, police made no arrests until over four years later. However, sometime after the crime but before August 2003, Walton, who knew Castillo, told her mother and Kertindall she had seen the driver/shooter in profile and from the back and he looked like Castillo.
In August 2003, partly based on what later proved an erroneous lab report linking a recovered handgun to the shell casings found at the crime scene, police detectives investigating several unsolved gang-related shootings, including this one, assembled three 6-man photo displays, none of which included Castillo’s picture. The detectives showed the three displays to Kertindall, who picked two African-American men, one each from two of the three displays, as being similar to the driver/shooter, one with 85% certainty, although she did not positively identify either man. The detectives also showed Rodriguez the three displays. He declined to identify any of the photos, but said he had heard some strangers at a carwash say Castillo was the shooter. The detectives then assembled a fourth display containing photos of six Hispanic men which included Castillo’s picture and showed it to the four surviving victims. With varying degrees of certainty, all four victims identified Castillo’s picture as the driver/shooter. Castillo’s photo was the only one of the six with long hair.
A defense investigator testified there was no carwash where Rodriguez claimed to have overheard these remarks.
Rodriguez identified Castillo at the preliminary hearing and trial. Kertindall also identified Castillo at trial. Both victims said they were afraid of gang retaliation for testifying. Before the preliminary hearing, Walton told Kertindall she knew the shooter but was afraid to testify against him. At trial, Walton said she was scared to testify against Castillo and did not see the driver/shooter well enough to identify him. Hislop also did not identify Castillo at trial and said he feared retaliation for testifying.
A police gang expert described the territories controlled by the two rival gangs, their Summer 1999 war, and their verbal and tattooed identification of themselves as gang members before, during, and after acts of violence to enhance their reputation for violence and intimidate rivals and the public. The expert also explained how gangs retaliate against anyone who cooperates with police or prosecutors, even those who inform on rival gang members.
Castillo did not testify. The court instructed the jury regarding the factors to consider in proving identity and to find Castillo not guilty if it had a reasonable doubt about the perpetrator’s identity pursuant to CALJIC Nos. 2.91 and 2.92. Castillo’s counsel vigorously argued the unreliability of the victims’ identifications given the short, stressful, observation period; delay between the crimes and the identifications; inconsistent identifications of others; suggestiveness of the display containing Castillo’s picture; and failures to identify Castillo at trial. The jury convicted him of all charges and enhancements.
The court instructed the jury as follows: “The burden is on the People to prove beyond a reasonable doubt that [Castillo] is the person who committed the crime[s] with which he is charged. If, after considering the circumstances of the identification[s], and any other evidence in this case, you have a reasonable doubt whether [Castillo] was the person who committed [these] crime[s], you must give [Castillo] the benefit of the doubt and find him not guilty.
DISCUSSION
I. THE COURT PROPERLY REFUSED TO SUBSTITUTE NEW APPOINTED COUNSEL, ACCEPTED CASTILLO’S WAIVER OF THE RIGHT TO COUNSEL, AND DENIED HIS PRO PER NEW TRIAL MOTION.
Appointed counsel represented Castillo from his November 2003 preliminary hearing until September 3, 2004, when the court granted his self-representation motion. The court appointed an investigator, runner, and expert witness, and Castillo filed a series of discovery motions. On November 17, 2004, the court appointed Robin Yanes as standby counsel. On January 10, 2005, the court granted Castillo’s motion to appoint Yanes to represent him. Trial began August 3, 2005, and the jury returned its verdicts on August 16, 2005.
On September 23, 2005, the original sentencing date, Castillo, still represented by Yanes, filed a pro per new trial motion. The motion primarily argued Yanes provided incompetent representation, based on several omissions. Among other errors, Castillo alleged Yanes failed to interview or use identification and gang experts appointed while Castillo was representing himself. Castillo argued the shooting happened quickly and at night, the victims had limited opportunities to see the shooter, their inconsistent and unsure identifications were the only evidence tying him to the crimes, and an identification expert may have undermined their testimony sufficiently to raise a reasonable doubt. The gang expert, a retired police officer, would have undermined the gang enhancement and identifications by testifying gang shootings usually are accompanied by an announced gang affiliation, absent here, and the photo display was unduly suggestive. Castillo also alleged Yanes failed to move to suppress evidence that the eventual arrest and search warrants for Castillo included information based on the lab report erroneously linking a recovered gun to the shootings.
At the September 23 hearing, the court considered Castillo’s motion and held a Marsden hearing from which the prosecutor was excluded to determine whether to appoint new counsel. Castillo stated he wanted a new lawyer rather than to represent himself, and his family was gathering funds to retain private counsel for the new trial motion. Castillo repeated his claims of Yanes’ inadequate representation listed in his motion. Yanes responded he had 28 years of trial experience, the last several of which involved primarily defending murder cases. Yanes explained he had told Castillo before trial he would not move to suppress evidence or use either expert because no evidence was generated as a result of the arrest and search warrants, and thus any inaccuracies in the supporting affidavits was irrelevant; the gang expert would not have helped because Castillo’s gang affiliation and the gang context of the shooting was undisputed, and the prosecutor could have elicited additional damaging evidence from the expert; and his experience with identification experts was poor because they rarely added anything to the defense and frequently antagonized the jury. After repeatedly giving Castillo opportunities to express his dissatisfaction, the court denied the Marsden motion. The court found Yanes’ explanations constituted reasonable trial tactics and Castillo and Yanes had no conflict.
People v. Marsden, supra, 2 Cal.3d 118.
After concluding the Marsden hearing, the court stated it would not consider Castillo’s pro per new trial motion because Yanes still represented him. Castillo responded he would like to represent himself so he could present his new trial motion at a later date. After a full warning of the dangers and disadvantages of self-representation, including having Castillo read and sign a written waiver form, the court granted Castillo’s motion, relieved Yanes, and continued the case for 30 days to permit Castillo to prepare argument. The court later granted Castillo several additional continuances and appointed an investigator and two identification experts.
On January 27, 2006, the court considered Castillo’s new trial motion. First, the court denied Castillo’s motion for another continuance based on difficulties caused by his incarceration which prevented him from completing his investigation, noting he had had over four months and several continuances to prepare. Castillo neither submitted any additional written materials, including declarations from his appointed experts, sought to call any witnesses, nor made any offers of proof regarding any proposed evidence. Castillo listed his complaints about Yanes’ representation, and Yanes testified consistently with his responses during the Marsden hearing. The court denied the new trial motion, finding Yanes’ performance adequate. The court agreed with Yanes’ refusal to make a fruitless suppression motion because even intentional errors or omissions in the warrants did not produce any evidence. The court opined neither a gang nor identification expert would have helped Castillo because (1) the gang evidence was undisputed; (2) four witnesses, one of whom knew Castillo before the crimes, identified him, and an expert would not have added anything to Yanes’ vigorous cross-examination and argument attacking the reliability of the identifications; and (3) both would have been subjected to cross-examination likely to produce evidence favorable to the prosecution.
Castillo contends the court erred in denying his Marsden motion for new counsel to represent him on his new trial motion, accepting his subsequent Faretta waiver of his right to counsel, and denying his new trial motion. He argues he made a sufficient showing of Yanes’ ineffectiveness to support appointment of new counsel to raise the issue at a new trial motion, his subsequent Faretta waiver was involuntary because he wanted appointed counsel to bring the new trial motion, and the error resulted in the court’s erroneous denial of the new trial motion because new counsel would have made a better motion. We find these contentions lack merit.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Denials of Marsden motions are reviewed under an abuse of discretion standard. Denial is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendant’s right to assistance of counsel.” The same standard applies if, after the verdict, the defendant seeks new appointed counsel to make a new trial motion alleging inadequacy of his trial counsel.
People v. Barnett (1998) 17 Cal.4th 1044, 1085, internal quotations and citations omitted.
People v. Smith (1993) 6 Cal.4th 684, 690-697.
Defendants have a federal constitutional right to self-representation if voluntarily and intelligently chosen. “A defendant seeking self-representation ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”’ [Citation.] The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citations.]”
Faretta v. California, supra, 422 U.S. 806.
People v. Bloom (1989) 48 Cal.3d 1194, 1224-1225.
“The requirement is met if the record establishes the defendant is literate and understanding and has voluntarily exercised the choice of representing himself. [Citation.] [¶] The burden is on the defendant to demonstrate he did not knowingly and intelligently waive his right to counsel. [Citations.] [¶] The defendant’s competence to waive counsel is a determination within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. [Citation.]” Erroneous denial of a timely Faretta motion is reversible per se regardless of prejudice. If a defendant only elects self-representation after and because of an erroneous denial of a Marsden motion, the error is reversible per se.
People v. McArthur (1992) 11 Cal.App.4th 619, 627.
People v. Joseph (1983) 34 Cal.3d 936, 945-948.
People v. Hill (1983) 148 Cal.App.3d 744, 755-756.
Applying these principles to our facts, we conclude the court properly denied Castillo’s motion for new appointed counsel and his related new trial motion based on Yanes’ alleged incompetence. First, Yanes and the court correctly opined a suppression motion would have been fruitless because any illegality produced no evidence subject to suppression. The use of the erroneous lab report incorrectly linking a gun to the crimes had no effect on the identifications. Yanes was not incompetent for failing to file a fruitless motion. Second, we agree with the court and Yanes regarding not using a gang expert. Castillo’s gang membership and the gang-related nature of the crimes was undisputed, as the expert likely would have conceded, resulting in his testimony damaging rather than aiding the defense.
People v. Hinton (2006) 37 Cal.4th 839, 917.
Finally, although the crux of the case was the reliability of the surviving victims’ identifications of Castillo, the court did not abuse its discretion in concluding an identification expert was unlikely to have aided the defense. Four, not one or two, eyewitnesses identified Castillo. Thus, the witnesses’ identifications corroborated each other. Moreover, the witnesses were not similarly situated. Walton knew Castillo and told her mother and Kertindall she thought the shooter looked like him long before seeing any photographs or speaking with police. Rodriguez, who did not know Castillo, heard strangers say he was the shooter, then identified his photo and repeated the identification at the preliminary hearing and trial. The victims’ identification of Castillo’s car as one of the sources of the shots also corroborated the identifications. The victims feared gang retaliation for their testimony, which explained the other two victims’ failure to identify Castillo in court after having done so before trial. Most importantly, Yanes’ cross-examination and argument thoroughly explored the short time period and stress under which the identifications were made, the delay between the crimes and the identifications, the inconsistent identifications of others, and the failure to identify Castillo in court, as well as the suggestive nature of the display containing Castillo’s photograph. The court correctly instructed the jury to consider these factors in weighing the reliability of the identifications and find him not guilty if it had a reasonable doubt of their reliability. In these circumstances, we are unable to conclude eyewitness expert testimony would have been of more than marginal assistance to appellant’s misidentification defense.
People v. Jones (2003) 30 Cal.4th 1084, 1111-1112 [trial court properly refused to permit defense identification expert to testify where multiple witness identifications sufficiently corroborated each other].
CALJIC No. 2.92 correctly states the factors the jury should consider in weighing eyewitness identification testimony. (People v. Wright (1988) 45 Cal.3d 1126, 1138-1144.)
For these reasons, the court properly exercised its discretion in denying Castillo’s Marsden and new trial motions. Because the court properly denied Castillo’s Marsden motion and properly advised him of the dangers and disadvantages of self-representation, his waiver of his right to counsel was voluntary. Castillo was not entitled to new counsel, and voluntarily chose self-representation to litigate his new trial motion. Thus, the court properly exercised its discretion in granting Castillo’s self-representation motion.
Finally, we reject Castillo’s argument the court prevented him from producing evidence during the new trial motion. The court had granted Castillo several continuances over four months to prepare his motion. Castillo made no offer of proof of what his witnesses would have said. Particularly given the low probability expert testimony would have been of more than marginal assistance to Castillo, the court did not abuse its discretion in refusing to further delay the motion.
II. THE COURT PROPERLY INSTRUCTED THE JURY REGARDING CONCURRENT INTENT FOR ATTEMPTED MURDERS IN A KILL ZONE.
Over Castillo’s objection, the court instructed the jury on concurrent intent for the attempted murders pursuant to CALJIC No. 8.66.1. (See footnote 3.) On appeal, he argues the court erred because the instruction is argumentative and legally incorrect. Our Supreme Court has approved the concept of a kill zone and this CALJIC instruction. We are bound by that authority.
People v. Bland (2002) 28 Cal.4th 313, 319-331.
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
Moreover, failure to give such an instruction where it is supported by the evidence is error. Here, substantial evidence supports the instruction. The victims had congregated at a known Bloods hangout in Bloods territory adjoining the territory of a rival gang in which Castillo was an active member and with which the Bloods then were at war. Two of the victims were Bloods members or associates, one wore a hat identifying him as a Bloods member, and two of their cars were painted shades of red, the Bloods color. Before the shooting, Castillo twice slowly drove by Kertindall’s red car, observing its occupants. Castillo led the attack on the group, firing multiple shots into a closely-packed group of five potential victims. The jury reasonably could conclude from this evidence Castillo intended to kill everyone in the zone of risk. Thus, the court properly gave the instruction. We find the evidence in this case is sufficient to warrant such an instruction and reject Castillo’s argument the cited cases are distinguishable or were wrongly decided.
People v. Anzalone (2006) 141 Cal.App.4th 380, 391-393, 395-396.
III. THE SENTENCE DOES NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.
We reject Castillo’s contention his sentence of 190 years-to-life for one premeditated murder and four premeditated attempted murders -- in all of which he personally discharged a firearm and acted to further the purposes of a criminal street gang -- constitutes cruel and unusual punishment because it cannot be served in a natural lifetime. Many courts have upheld far longer sentences for less serious crimes against the same challenge. As the Attorney General points out, Castillo’s suggestion the court should have imposed concurrent or stayed terms for some of the counts and enhancements, thus lowering his sentence to 85 years-to-life, would not address his concern. The shorter sentence likewise could not be served in a natural lifetime.
People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 528-532.
IV. THE COURT PROPERLY IMPOSED A SECOND RESTITUTION FINE.
Castillo argues his suspended second restitution fine must be stricken because it does not apply when a defendant is sentenced to life without parole. As the Attorney General points out, Castillo was not sentenced to life without parole. Thus, his contention lacks merit.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.
“Eyewitness testimony has been received in this trial for the purpose of identifying [Castillo] as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness, as well as other factors which bear upon the accuracy of the witness’s identification of [Castillo], including, but not limited to, any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness’s ability following the observation to provide a description of the perpetrator of the act; [¶] The extent to which [Castillo] either fits or does not fit the description of the perpetrator previously given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶] The witness’s capacity to make an identification; [¶] Evidence relating to the witness’s ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [¶] The period of time between the alleged criminal act and the witness’s identification; [¶] Whether the witness had prior contacts with the alleged perpetrator; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶] Whether the witness’s identification is, in fact, the product of his or her own recollection, and [¶] Any other evidence relating to the witness’s ability to make an identification.”