Opinion
B231100
02-07-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY GONZALES ROMERO Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA269229)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed as modified, remanded with directions.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Johnny Gonzales Romero appeals his convictions for first degree murder and attempted willful, deliberate and premeditated murder. Appellant contends there was insufficient evidence of premeditation to support the convictions. In addition, he contends the court made inappropriate statements to prospective jurors at the beginning of voir dire and failed to properly exercise its discretion when imposing consecutive sentences for the two counts. Finally, he contends -- and respondent agrees -- that the sentence imposed for the attempted murder count was unlawful, that custody credits were miscalculated, and that the abstract of judgment cited the incorrect statutory subdivision for one enhancement. We remand for correction of the sentencing errors, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a two-count information with the murder of Emilia Rosario Clemente (count one, Pen. Code § 187, subd. (a)) and the attempted murder of Tony Arellano (count two, Pen. Code §§ 664/187, subd. (a)). The information further alleged that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b), personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and personally and intentionally discharged a firearm which proximately caused great bodily injury to Clemente and Arellano within the meaning of section 12022.53, subdivision (d).
Undesignated statutory references are to the Penal Code.
B. Trial
Evidence was introduced that on July 3, 2004, Arellano, a drug dealer, was in Clemente's apartment, sitting on her couch smoking crack with her. Arellano was also drinking and had been awake for two days. Appellant came by and they all smoked crack together. Appellant got up and started walking toward the door. He stopped and asked Arellano for a rock. Arellano said he did not have any more. Appellant walked back and stood behind Arellano while jogging in place. Appellant took out a gun. Arellano laughed, thinking it was a toy. Appellant shot Arellano twice, once in the ear and once in the head. Clemente was seated on the bed across from appellant and Arellano at the time. After being shot, Arellano was unconscious for several minutes. When he awoke, he did not see Clemente. He tried to call 911, but could not get through. He left the apartment to get help.
At the time of trial, Arellano was in custody for an unrelated crime. When Arellano was called to the stand, he initially stated he could not swear to tell the truth. After being sworn, he was asked about the shooting that led to his injury and Clemente's death. He denied remembering anything, including his statements to the prosecutor and investigators and his testimony at the preliminary hearing. Earlier, Arellano had told the prosecutor and Julian Pere, a police investigator, that he would not testify because he was afraid for his safety and the safety of his family if he was labeled a snitch while in custody. Arellano's version of events was introduced by means of the testimony of Pere, who had interviewed or spoken with Arellano three times, and through Arellano's preliminary hearing testimony.
Contrary to his statement to investigator Pere, at the preliminary hearing, Arellano testified he did not see the gun.
Police found Clemente's body hunched over in a sitting position next to the bed.
After the shooting, fingerprint specialists found fingerprints on a beer bottle inside Clemente's apartment and identified them as appellant's. Investigators put together a photographic six-pack, which included appellant's picture. Arellano identified appellant after reviewing the six-pack. Appellant left the state and was located in Pennsylvania approximately one month after the shooting. In 2010, he was extradited to California.
Elpidio Quiles had known Clemente since 1985. He had seen appellant in Clemente's apartment shortly before she was killed. Quiles identified appellant from a photographic lineup as the man he had seen with Clemente.
Quiles testified he had seen appellant with Clemente a week before the shooting, but he told investigators it had been the day before.
The autopsy revealed that Clemente had been shot twice, once in the upper chest and once in the lower abdomen. The absence of soot or stippling on the body indicated that the barrel of the gun had been more than two feet away when the weapon was fired. Investigators did not notice any bullet holes in or recover any bullets from the apartment. No gun was recovered.
C. Verdict and Sentencing
The jury convicted appellant of first degree murder in the killing of Clemente and of attempted willful, deliberate and premeditated murder with respect to the shooting of Arellano. It found the special allegations true.
The court imposed a term of 25 years to life for the murder charge (count one), plus a consecutive term of 25 years to life for the weapon enhancement under section 12022.53, subdivision (d); it imposed a consecutive term of 15 years to life for the attempted murder charge (count two), plus a consecutive term of 25 years to life for the weapon enhancement under section 12022.53, subdivision (d).
DISCUSSION
A. Premeditation
Appellant contends the jury's findings that the murder of Clemente and the attempted murder of Arellano were premeditated was unsupported by the evidence. For the reasons explained below, we disagree.
A murder that is willful, premeditated and deliberate is murder in the first degree. (§ 189.) "[T]he crime of attempted murder is not divided into degrees. [Citation.] The prosecution may seek a jury finding that an attempted murder was 'willful, deliberate, and premeditated' for purposes of sentence enhancement. [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 740.) A killing or attempted killing is premeditated and deliberate "if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) "'Deliberation'" refers to "careful weighing of considerations in forming a course of action" and "'premeditation'" means "thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The process of premeditation and deliberation does not require any extended period of time. (People v. Cook (2006) 39 Cal.4th 566, 603.) "'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .'" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder [or attempted murder] involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt." (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "The standard of review is the same in cases . . . where the People rely primarily on circumstantial evidence." (Ibid.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" (Ibid.)
The Supreme Court has "distilled certain guidelines to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation": "(1) planning activity, (2) motive, and (3) manner of killing." (People v. Perez, supra, 2 Cal.4th at p. 1125.) "'Analysis of the cases [shows] that [the Supreme Court] sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).'" (Ibid., quoting People v. Anderson (1968) 70 Cal.2d 15, 27.) "These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.]" (People v. Stitely, supra, 35 Cal.4th at p. 543.) "However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.'" (Ibid., quoting People v. Proctor (1992) 4 Cal.4th 499, 529.)
The evidence supports the inference that appellant had a motive for killing Arellano -- his refusal to supply him with more crack. There was also evidence of planning. Appellant, having earlier concealed a loaded weapon on his person, maneuvered himself behind and close to Arellano. Before drawing the gun, he jogged in place for a period of time, giving him sufficient opportunity for deliberation and reflection. The manner of killing also supported the jury's verdict. Appellant shot Arellano twice, in the ear and the head, at close range. The fact that neither bullet proved fatal did not require the jury to conclude that appellant did not intend to kill Arellano or that he did so without deliberation and premeditation.
Appellant contends he had no reason to be angry because Arellano said he did not have any more crack -- not that he had some but refused to provide it. As Arellano was an admitted drug dealer, the jury could reasonably have concluded appellant did not believe him, or that even if he did, he was angry that Arellano could not supply him with additional crack.
There was also evidence that appellant had a motive for killing Clemente. She had just witnessed him shoot Arellano and could easily have identified him to authorities due to their prior acquaintance. Although there was no evidence demonstrating the precise interval between the shooting of Arellano and the shooting of Clemente, the fact that she was shot twice in two different areas of her body -- both areas where the bullet was likely to strike vital organs and cause death -- supported that appellant had time to reflect. The jury could reasonably have inferred that having shot Arellano in cold blood, appellant transferred his attention to Clemente and made a calculated decision to kill her to prevent her from being a witness against him, firing directly into her chest and abdomen.
Appellant contends that one of the shots may have been accidental, as Clemente was sitting in line with the shots fired at Arellano and could have been hit by the bullet that grazed Arellano's ear. The jury was not required to draw such an inference but assuming, arguendo, the first shot to hit Clemente was accidental, the fact that appellant fired a second shot into her body supports the jury's verdict that the killing was deliberate and premeditated.
B. Court's Statements to Jurors
1. Background
On the first day of voir dire, the court addressed the prospective jurors about the importance of jury service, the duties of a juror and the standard for claiming hardship. During this discourse, the court stated: "Now some of you may be thinking, 'Wow, this is an opportunity for me not to have to go to work for a few days. Not bad.' [¶] And some of you might also be thinking, 'This is an opportunity for me to contribute to the effective criminal justice system, to participate in seeing that justice is done in a given case.' And that's what we are all here to do, to see that justice is done in this particular case, to select twelve citizens who don't have an interest in how this case comes out, but have an interest only [in] seeing that justice is done by seeing that the jurors participate in a fair trial for the defendant here and a fair trial for the prosecution, and . . . the parties that were affected in this case, the defendant who has been waiting for trial for sometime, the victim, one of whom we expect will testify and one of whom will not be testifying in this case, and the witnesses who are involved in this matter, that they, too, can see that there is ultimately a fair trial that occurs and that the jury reaches a just result."
2. Analysis
Jurors are not to allow "public opinion" or the possible reactions of their own families and significant others to influence their determinations. (People v. Morales (1992) 5 Cal.App.4th 917, 928; CALJIC No. 1.00; CALCRIM No. 200.) In addition, appeals to sympathy for the victim are "'out of place during an objective determination of guilt.'" (People v. Martinez (2010) 47 Cal.4th 911, 957, quoting People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) Appellant contends that by telling the prospective jurors to consider the victims and the witnesses and their desire for a "fair trial," the court was essentially asking them take public opinion and community expectations into account or to heed the presumed desire of the witnesses, all of whom were called by the prosecution, to find appellant
When instructing the jury, the court delivered CALCRIM No. 200.
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guilty.
The court's comments are not reasonably susceptible to such an interpretation. The court did no more than inform the prospective jurors of the importance of a fair trial and just verdict. It emphasized that their sole responsibility to all the participants, including appellant, was to be fair and "see that justice is done." The court's words did not suggest that the victims or the witnesses were more important than appellant, or that reaching a just result required a particular verdict.
Additionally, we note that appellant's failure to object and request clarification resulted in forfeiture of the issue. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 322; People v. Melton (1988) 44 Cal.3d 713, 735.) Appellant contends it would have been futile to object because "the court manifestly believed that the way it phrased its comments and the comments themselves, were proper, or else it would not have made them." This argument proves too much, suggesting that only when a court is already aware of some impropriety in its comments to the jury would an objection or request for clarification prove anything but futile. The law is to the contrary. (See ibid.)
C. Consecutive Sentencing
During the sentencing hearing, defense counsel asked the court to "consider concurrent time," but expressed doubt that the court had discretion "based on the charges." The prosecutor requested a consecutive sentence without suggesting the court lacked discretion to do otherwise. In passing sentence, which included consecutive sentences for counts one and two, the trial judge stated: "[T]here are separate victims, and there were -- the court sees no reason -- and I don't think under the law it's even permitted when there are separate victims to have concurrent sentencings." There is no dispute that the court had the discretion to impose concurrent sentences for counts one and two. Appellant contends the judge's comments indicate she failed to exercise her discretion, and that the matter must, therefore, be remanded for re-sentencing.
The trial judge clearly saw "no reason" to impose concurrent sentences, and her comments indicate she chose consecutive sentences because the crimes impacted two victims. Thus, even had the judge fully understood her discretionary power to sentence appellant concurrently for the two crimes, she would have chosen consecutive terms. "'Where . . . a sentence choice is based on an erroneous understanding of the law,'" the matter must generally be remanded "'for an informed determination.'" (People v. Gamble (2008) 164 Cal.App.4th 891, 901; People v. Downey (2000) 82 Cal.App.4th 899, 912.) "However, '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.'" (People v. Gamble, supra, at p. 901, quoting People v. Sanders (1997) 52 Cal.App.4th 175, 178.) Remand is not required here.
D. Sentencing Errors
There is no dispute that the court erroneously imposed a sentence of 15 years to life for count two, the attempted murder of Arellano, and that appellant should instead have been sentenced to life with the possibility of parole on that count. (See § 664, subd. (a).) In addition, there is no dispute that appellant is entitled to an additional day of presentence custody credit. Finally, both sides agree that the abstract ofjudgment erroneously identified the wrong subdivision of section 12022.53 subdivision (b), rather than subdivision (d) to support the sentence enhancement imposed on count two. Accordingly, we order the abstract of judgment amended to reflect the appropriate sentence for count two, an additional day of custody credit, and the appropriate citation to the statute under which the count two enhancement was imposed, viz., section 12022.53, subdivision (d).
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed upon issuance of the remittitur to prepare a corrected abstract of judgment (1) changing the sentence on count two to life with the possibility of parole; (2) changing custody credits to reflect credit for 365 days; and (3) changing the statutory citation for the count two enhancement to section 12022.53, subdivision (d). The clerk is directed to forward the corrected abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.