Opinion
B286807
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO GALVEZ, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA432558) APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed and remanded for further proceedings. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
On May 29, 2019, we affirmed defendant and appellant Alejandro Galvez's judgment. On September 11, 2019, the California Supreme Court granted defendant's petition for review and, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425-428, transferred the cause back with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 620 (Stats. 2017, ch. 682, § 2.) which granted trial courts discretion to strike firearm sentence enhancements under Penal Code section 12022.53. In light of Senate Bill No. 620, we remand the cause to the trial court so it may exercise its discretion whether to strike defendant's section 12022.53 enhancements and affirm the judgment in all other respects.
All statutory citations are to the Penal Code.
II. PROCEDURAL BACKGROUND
A jury convicted defendant of first degree murder (§ 187, subd. (a)) and willful, deliberate, and premeditated attempted murder (§ 664/187, subd. (a)). As to the murder conviction, the jury found true the allegations that defendant personally used and personally and intentionally discharged a firearm causing death. (§ 12022.53, subds. (b)-(d).) It further found true the special circumstance allegation that defendant committed the murder by means of lying in wait. (§ 190.2, subd. (a)(5).) As to the attempted murder conviction, the jury found true the allegations that defendant personally used and personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b)-(d).) It further found that he personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) The trial court sentenced defendant to life in prison without the possibility of parole plus 54 years.
On appeal, defendant contends there was insufficient evidence to support the lying-in-wait special circumstance. He further contends the cause should be remanded to the trial court to allow it to exercise its section 1385 discretion whether to strike the firearm enhancements under section 12022.53.
III. FACTUAL BACKGROUND
Defendant and David Duran worked as armed security guards for the same employer. They sometimes worked the same shift. Defendant and Duran were friends and socialized outside of work.
As of December 2014, Elizabeth Hernandez had known defendant for about five years. They had been in a relationship for about three and a half or four years and had a four-year-old son together. Their relationship ended in September 2013.
While Hernandez and defendant were in a relationship, they and their son lived together. Defendant's mother, sisters Yolanda and Laura, and niece Brenda Trujillo lived in the house next door. After Hernandez and defendant's relationship ended, Hernandez and her son continued to live in the same house and defendant moved out. When defendant moved out, he gave his house keys to Hernandez.
Hernandez did not have any "issues" with defendant after their relationship ended. That started to change in May 2014, when defendant learned that Hernandez was going out with friends after work—including Duran. Defendant became aggressive with Hernandez and called her repeatedly.
Around September or October 2014, Hernandez and Duran began a relationship. Hernandez did not tell defendant about her relationship with Duran because she was afraid of his reaction. Duran told defendant, and defendant reacted badly. He called Hernandez and asked, "Why him?" Hernandez could hear that defendant was loading a gun.
The next day, Hernandez encountered defendant when she dropped off their son at school. Defendant approached and appeared to be mad. He grabbed his shirt and said he wanted to speak with Hernandez. Hernandez was afraid. From the way defendant grabbed his shirt, she believed he was carrying a gun. She said she would not speak with him unless he showed her he had nothing under his shirt.
Defendant lifted his shirt and showed Hernandez he did not have a gun. Defendant appeared to calm down and sat in the back seat of Hernandez's car. Defendant asked, "Why [Duran]?" Hernandez responded that Duran treated her well which made her feel good and she liked him. Defendant slapped Hernandez's face hard and told her, "Just leave [Duran] and everything will be okay."
Hernandez told defendant she would leave Duran because she was afraid of what defendant might do. Hernandez spoke with Duran and told him "what was going on." He responded that nothing would happen as long as they were together.
After the incident at the school, defendant would come onto Hernandez's property. On one occasion, Hernandez called the police. When defendant began entering Hernandez's property more often, Hernandez felt afraid and unsafe. In their recent interactions, defendant had been aggressive and rude, calling her a bitch and a whore. In response, Hernandez "got" a gun.
Hernandez initially testified that her daughter was going to buy her a gun for Christmas. She later testified that she did not receive a gun for Christmas.
Around December 28, 2014, defendant told a co-worker and mutual friend of his and Duran's that he was upset that Duran was dating Hernandez and "that didn't sound like a friend to him." The co-worker advised defendant "to forget about everything that had happened and to let them do what they were doing." Angry, defendant responded, "[Y]ou don't do that to a friend and he had sent [persons] to fuck [Duran] up, but they couldn't." Immediately after that conversation, the co-worker called Duran and advised Duran of his conversation with defendant.
On December 30, 2014, Hernandez was out with Duran and her son. At around 10:00 or 10:30 p.m., defendant called Hernandez and asked to speak with their son. Hernandez gave her phone to her son, but he said he did not want to talk. Hernandez told defendant that he might be able to speak with their son when they got home.
When Hernandez, Duran, and Hernandez's son arrived at Hernandez's house, Hernandez unlocked the front gate and parked on the property. Hernandez unlocked the house's front security door and interior door and they entered the house. Duran lay Hernandez's son, whom he was carrying, on the bed in Hernandez's bedroom.
Around this time, defendant called Hernandez again and she told him that their son was asleep. Defendant's tone of voice and demeanor sounded normal during the conversation.
When Hernandez attempted to end one of her conversations with defendant, defendant said, "'Why don't you want to talk? I am sure you're with your boyfriend, right?'" Hernandez confirmed that she was with Duran.
Because defendant repeatedly called Hernandez thereafter, she blocked his calls and he could only send her text messages. At 10:23 p.m., defendant texted Hernandez and asked if they were already in bed. At 10:52 p.m., he texted, "Hello." At 11:25 p.m., defendant texted, "I am calling you, pick up."
When defendant sent the last text, he was standing outside of Hernandez's house. Around that time, Hernandez's dogs were acting strangely, so she opened her bedroom curtains and saw defendant standing about four or five feet from the window. There were bars on Hernandez's windows.
Hernandez told defendant to leave. Defendant said he only wanted to talk with her. Defendant's tone of voice and body language were "friendly." Hernandez again asked defendant to leave, telling him they did not have anything to talk about. Defendant did not leave. Hernandez called defendant's sister Yolanda and told her of her brother's presence and requested that she ask her brother to leave.
Both of defendant's sisters and his mother came outside and told defendant to leave. Defendant said he would leave after he spoke to Hernandez. Hernandez did not go outside and speak to defendant because she was scared. At some point, defendant said to Hernandez, "Okay. Tell your boyfriend to come outside and open the door and then I will leave." Defendant repeated this request two or three more times.
When Duran heard defendant say he wanted Duran to come outside, Duran said, "'Let me just go and open the door so he will go away.'" Duran's demeanor was calm. He did not appear to be frightened, aggressive, or angry. Hernandez told Duran not to go outside.
Duran retrieved his work gun from a safe in Hernandez's bedroom closet. He gave the gun to Hernandez and told her he was going outside to talk with defendant. He told her not to be afraid and to stay in the house.
Hernandez was nervous and really scared about what was happening. She did not think to call the police—everything was happening so fast. As Duran left the bedroom, Hernandez was putting on her shoes. Duran was calm and assured Hernandez that everything would be alright.
As Hernandez was tying her shoes, she heard Duran unlock and open the front door and security door and say something to defendant. Within 20 to 30 seconds, Hernandez heard Duran say, "Oh shit," and heard someone running into the house.
Hernandez looked out of her bedroom and into the living room. She saw Duran running through the house to the back and heard loud noises she believed were gunshots. Defendant ran after Duran, but stopped when he saw Hernandez. Defendant was holding a gun.
Hernandez tried to close the bedroom door, but defendant pushed the door open. Hernandez could not remember if she fired Duran's gun. She heard five or six more gunshots. She felt weak and fell to a seated position on the floor. Defendant grabbed Hernandez by the hair, put his gun to her head, and said, "I told you, bitch, you were not going to fool me." Hernandez understood defendant's statement to mean that he was going to kill her.
By the time defendant held the gun to Hernandez's head, his mother, sisters, and niece had entered the bedroom. Laura told defendant to leave Hernandez alone. Hernandez said to defendant that their son was sleeping on the bed. Hernandez could not remember if defendant responded. The only other thing he said to her was, "You're going to regret this."
Duran entered the room. He grabbed defendant by the arm and turned defendant toward him. Hernandez heard another gunshot and saw Duran fall dead on the floor. Laura yelled, "Look what you did." Defendant did not respond.
Defendant grabbed Hernandez again and Laura grabbed defendant. Hernandez and Laura struggled with defendant over his gun. Hernandez wrested the gun from defendant and threw it under the bed. Defendant dragged Hernandez to the other side of the bed where he hit her head with the gun's magazine several times.
Laura grabbed defendant, yelled at him to let Hernandez go, and threw him towards the door. Defendant then pointed a second gun at Hernandez. His family members pushed his hands down and took him out of the house. As they were outside before the police arrived, Trujillo and her mother asked defendant why he "did it." He responded, "'I did it to get my honor back.'"
A 911 call concerning shots fired at Hernandez's house was placed at midnight. Hernandez waited in her bedroom until the police arrived. She was taken to the hospital; she had been shot three times—twice in the leg and once in the back. Duran sustained five gunshot wounds, three of which were fatal. Defendant, seated on the front steps next to his mother when the police arrived, was arrested.
IV. DISCUSSION
A. Lying in Wait
Defendant contends that the jury's lying-in-wait special circumstance finding was not supported by sufficient evidence. We disagree.
1. Standard of Review
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] The same standard of review applies to the sufficiency of the evidence supporting special circumstance findings. [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
2. Analysis
"'"The lying-in-wait special circumstance requires 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. . . .' [Citations.]"' [Citation.]" (People v. Mendoza (2011) 52 Cal.4th 1056, 1073 [(Mendoza)].) Defendant contends the evidence was insufficient to establish the concealment of purpose and watching and waiting elements.
a. Concealment of purpose
"'"'The element of concealment is satisfied by a showing "'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.'"' [Citation.]"' [Citation.]" (Mendoza, supra, 52 Cal.4th at p. 1073.)
Defendant argues there was insufficient evidence that he concealed his true intent and purpose because there was no evidence of a substantial pause when Duran went to the front door during which defendant "sought to lull [Duran]'s suspicions." We disagree with defendant's suggestion that the evidence of concealment should be limited to the period that defendant and Duran interacted at the front door. Instead, that period includes all the time defendant was present at Hernandez's house and attempted to conceal his true intent and purpose—to murder Duran and Hernandez—and thereby gain access into Hernandez's house.
When defendant stood outside Hernandez's bedroom window and texted her at 11:25 p.m., he knew she was with Duran. Yet, despite defendant's displeasure about Hernandez's relationship with Duran, defendant's tone of voice and body language were "friendly" when he spoke with Hernandez. Defendant said he only wanted to talk with Hernandez. When defendant's sisters and mother tried to get defendant to leave, he said he would leave once he spoke with Hernandez. When Hernandez would not speak with defendant, defendant said that Hernandez should have Duran open the door and then he would leave.
Although Hernandez was afraid and Duran was at least concerned—he gave his gun to Hernandez before he went to the door—defendant's concealment worked. Defendant sufficiently lulled Duran to cause Duran to open the front door and security gate thereby providing defendant with access into Hernandez's home so he could murder Duran and Hernandez. If defendant had not sufficiently lulled Duran, defendant could not have gained access to the home as the windows were barred. That Duran went to the front door unarmed and his comment when defendant began his attack—"Oh shit"—demonstrates that defendant successfully caught Duran off guard. Accordingly, there was sufficient evidence of concealment of purpose. (Mendoza, supra, 52 Cal.4th at p. 1073.)
b. Watching and waiting
"As for the watching and waiting element, the purpose of this requirement 'is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length "'of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.'" [Citation.]' [Citation.]" (Mendoza, supra, 52 Cal.4th at p. 1073, fn. omitted.)
Defendant contends the evidence was insufficient to prove a substantial period of watching or waiting because his encounter with Duran at Hernandez's front door lasted from 20 to 30 seconds before he shot Duran. Instead, defendant was on Hernandez's property for approximately 30 minutes before he shot Duran. At 11:25 p.m., defendant texted Hernandez from her property—outside of her bedroom window. The shooting took place around midnight.
Although defendant's presence was known during that approximate 30-minute period, defendant used that time to try to secure access to Duran and Hernandez. As explained above, he used that time to try to lull them into a false sense of security thereby creating "an opportune time to [attack]." (Mendoza, supra, 52 Cal.4th at p. 1073.) Thus, defendant's 30 minutes of watching and waiting on Hernandez's property demonstrate that he acted "insidiously" and not "out of rash impulse." (Ibid.) B. Senate Bill No. 620
A defendant's presence need not be concealed from his victim while watching and waiting. (See People v. Morales (1989) 48 Cal.3d 527, 555, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459 ["[T]he evidence was sufficient to support a finding of lying-in-wait murder, based on defendant's watchful waiting, from a position of advantage in the backseat, while the car was driven to a more isolated area, and his sudden surprise attack, from behind and without warning, on [the] victim"].)
Defendant contends remand is necessary so that the trial court may exercise its discretion whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h). Subdivision (h) of section 12022.53 became effective January 1, 2018, pursuant to Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) Prior to Senate Bill No. 620, a trial court lacked discretion to strike or dismiss a firearm enhancement pursuant to section 12022.53. (People v. Chavez (2018) 22 Cal.App.5th 663, 708; People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) The Attorney General concedes that Senate Bill No. 620 applies retroactively to defendant and that defendant therefore "should be given a new sentencing hearing at which the trial court can consider whether to strike the firearm enhancements." In supplemental briefs filed after the Supreme Court's transfer, the parties assert, and we agree, that the cause should be remanded to the trial court so that it may consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h).
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
IV. DISPOSITION
The cause is remanded to the trial court to permit it to consider whether to exercise its discretion to strike defendant's section 12022.53 enhancements under section 1385. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. I concur:
RUBIN, P. J. BAKER, J., Concurring in Part and Dissenting in Part
Having given the matter further consideration as directed by our Supreme Court, I am still of the view that a remand to allow the trial court to consider exercising discretion conferred by Senate Bill No. 620 (Stats. 2017, ch. 862, § 2) is unnecessary. I therefore respectfully dissent from that aspect of the majority's holding. I concur, however, in the remainder of the majority's opinion that affirms in all other particulars.
In People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the Court of Appeal held "[r]econsideration of sentencing is required under [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Gutierrez, supra, at p. 1896, italics added.) More recently, courts, including the Court of Appeal in People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), have applied this standard in deciding whether a remand to consider exercising Senate Bill No. 620 discretion is warranted. Neither Gutierrez nor McDaniels, however, has held a clear indication that the trial court would have refused to exercise discretion is the only reason why a remand might be unwarranted.
Here, there is another reason to decline to remand that I believe to be equally valid. The trial court sentenced defendant Alejandro Galvez to life in prison without parole, plus a 54-year determinate term. We are affirming the conviction that requires the life without parole sentence. Remanding so the trial court can consider whether to strike firearm enhancements that comprise part of defendant's determinate sentence, which will have no practical impact on the life term he will spend in prison, is kabuki theater.
True, there is always the possibility, however remote, that our Supreme Court could reverse the conviction giving rise to the life without parole sentence. But in that hypothetical circumstance, the Supreme Court could address the firearm enhancement associated with the attempted murder conviction and itself remand to the trial court for Senate Bill No. 620 consideration. Ordering a remand now to provide an opportunity for an exercise of discretion that is unlikely to be forthcoming—and, more importantly, that will have no practical impact even if it is—does not make much sense.
The same reasoning applies to the possibility, again however remote, that defendant might obtain future habeas corpus relief. If we expressly decline to remand for Senate Bill No. 620 consideration because defendant is serving a life without parole sentence, and if that sentence is later overturned, I see no reason to assume the court that overturns it would be unable to fashion appropriate relief.
I would affirm the judgment in full.
BAKER, J.