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People v. Arreola

California Court of Appeals, Second District, Eighth Division
Sep 23, 2008
No. B195597 (Cal. Ct. App. Sep. 23, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOHNNY ARREOLA et al., Defendants and Appellants. B195597 California Court of Appeal, Second District, Eighth Division September 23, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA066248. Gary J. Ferrari, Judge.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant, Johnny Arreola.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant, Julio Sandoval.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Johnny Arreola and Julio Sandoval appeal from their convictions of attempted murder, kidnapping, rape, and forcible oral copulation. We reject their contentions that the jury was improperly instructed on consent to the sex crimes and that there was insufficient evidence to support a finding that the crimes were committed to benefit a street gang. We reverse the consecutive sentence imposed on the kidnapping count and the determinate 10-year term imposed for the gang enhancement, however, and will order the abstract of judgment modified accordingly to reflect these changes.

FACTS AND PROCEDURAL HISTORY

On February 13, 2005, Johana P., age 15, was stabbed 26 times, tossed down an embankment, and left for dead by East Side Longos (ESL) gang members who believed she had refused to help them lure someone out to be shot and killed the day before. Instead, she survived and climbed back up the embankment, where she was spotted by a passing motorist. The incident began the day before, when Johana was hanging out with a group of friends who had gathered at the home of someone named Chava. These included several ESL gang members: Johnny Arreola, Julio Sandoval, Martin Luna, “Puppet,” and “Weecho.” Luna was an ESL “shot caller,” meaning he gave orders to the others.

While at Chava’s house, Luna said he wanted to kill a person named Oscar and Johana was driven to Oscar’s home in order to lure Oscar outside. Johana resisted and tried to leave, but was told she had to comply. Johana knocked on the door of Oscar’s house, but his mother answered. Johana returned to the car and said she had been told Oscar was not home. The others appeared to believe she was lying and when Johana and Puppet tried to leave, they were told to remain. The group returned to Chava’s house, and stayed up all night taking crystal meth.

The next morning, Weecho told Johana they would take her to her mother’s house. Johana fell asleep in the car, but when she awoke, she and the others were inside a hotel room. The group began using drugs again, but at some point she was ordered to undress and forced at knifepoint and gunpoint to orally copulate, then perform intercourse with, Sandoval, Arreola, and Weecho. The group then left the hotel and made Johana come with them, promising to take her home. At the group’s direction, Johana phoned home to report she would be back soon. Instead, the group drove Johana nearly 100 miles to a mountainous area off of Interstate 5 that Weecho said was a “good place.” After a quick detour to buy food and beer, they drove Johana back to that spot, pushed her from the car, and stabbed her repeatedly.

Arreola and Sandoval were eventually tried by jury and convicted of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a)), kidnapping (Pen. Code, § 207, subd. (a)), forcible rape while acting in concert (Pen. Code, § 264.1), and forcible oral copulation while acting in concert (Pen. Code, § 288a, subd. (d)). The jury also found true allegations that each crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The court sentenced appellants consecutively for each count, including life for the attempted murder and five years for the kidnapping. When combined with the other counts, the street gang allegations, and various other enhancements, appellants were sentenced to life plus 63 years. Appellants contend that the street gang allegations must be reversed because there was insufficient evidence that committing crimes was one of ESL’s primary activities and that the court should have stayed their five-year sentence for kidnapping instead of running it consecutive to the other prison terms. They also contend that the court erred by imposing a determinate 10-year prison term on top of their life sentences for the attempted murder. Sandoval also contends separately that the court erred by instructing the jury with CALJIC No. 1.23.1, which defined consent for purposes of the sex crimes.

All further undesignated section references are to the Penal Code. We will sometimes refer to Arreola and Sandoval collectively as appellants.

Only Sandoval expressly raised this argument in his opening brief, but Arreola chose to join in this contention in his reply brief.

DISCUSSION

1. The Five Year Kidnapping Sentence Must Be Stayed

The trial court imposed a life sentence on the attempted murder count and ran the sentences on all other counts consecutively to that, including five years for the kidnap of Johana. Appellants contend the kidnapping sentence should be stayed pursuant to section 654. That section provides in part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one[.]” In short, when a single act is charged as the basis for a conviction, the defendant can be punished only once. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208 (Latimer).)

Applying section 654, the Latimer court held that a defendant convicted of kidnapping and raping a woman could not receive consecutive sentences for each crime when the evidence showed the defendant’s only reason for the kidnap was to commit the rape. (Latimer, supra, 5 Cal.4th at pp. 1216-1217.) Appellants contend that reasoning applies here because the evidence showed no other motive for kidnapping Johana, a point confirmed by the prosecutor, who argued to the jury that Johana was driven far away in order “to find a good place to kill her.”

Relying on People v. Surdi (1995) 35 Cal.App.4th 685 (Surdi), respondent contends consecutive sentences were permitted because Johana was held against her will in the hotel and because there were considerable time periods between Johana’s detention and the stabbings. The defendant in Surdi was one of a group of gang members who captured a rival gang member, put him in a van, beat and stabbed him, then drove him to another location, where he was again beaten and stabbed and left for dead. The defendant was convicted of kidnapping, attempted murder, torture, and mayhem, but the sentence on the torture count was stayed. On appeal, he argued that the mayhem sentence should not have run consecutive to the kidnap sentence because the kidnapping was done in order to inflict the acts of mayhem. The appellate court disagreed, holding that the separate acts of violence inflicted on the victim had separate intents and objectives because the attacks were separated by long time periods that gave the attackers the ability to reflect on what they were doing. (Id. at pp. 689-690.)

We do not find Surdi applicable here. Under respondent’s reasoning, any time a kidnap for the sole purpose of committing a rape occurred, separate punishments would be permitted if the rape occurred after the defendant had some time to reflect on what he was about to do. That would not just contravene the express holding of Latimer, supra, 5 Cal.4th 1203, it would craft an exception that would swallow the section 654 rule. We decline to hold that an hours-long kidnapping committed with no other intent than to drive the victim far away in order to kill her permits separate punishment for those two crimes under section 654. The Surdi court did not hold that time to reflect by itself created separate intents. Instead, the court authorized separate punishments because under the unique facts of that case, it determined there was evidence of separate intents for separate violent attacks that were performed over a long period of time. Likewise, in order to impose separate punishments here, there must have been evidence that appellants had separate intents for the kidnap and attempted murder.

Notably, the Attorney General in Surdi agreed that separate sentences at least for the attempted murder and the kidnapping had to be stayed under section 654. (Surdi, supra, 35 Cal.App.4th at p. 688.)

Johana testified that she went into the hotel voluntarily, meaning that no kidnapping occurred at that point. The only testimony from Johana about being taken against her will concerned the period after the hotel sex assaults, when she was taken for the ride that nearly ended her life. It was at that point that a kidnapping occurred. (People v. Morgan (2007) 42 Cal.4th 593, 615 [even if victim initially cooperates with defendant, kidnapping occurs if the accused later restrains the victim’s liberty by force or fear and compels the victim to accompany him further].) The prosecutor did not argue to the contrary. Instead, her argument combined as one the kidnapping and attempted murder counts, telling the jury, “Now, we talk about the attempted murder and the kidnapping.” After arguing that the stabbings clearly showed the intent to kill, the prosecutor moved right to the kidnapping, but limited her discussion to the long car ride into the mountains: “They didn’t drive . . . 100 miles to take a little drive into the countryside . . . [or] to get gas and food. We know it was willful, deliberate and premeditated because they drove 100 miles to get out of the city to a remote area . . . to find a good place to kill her.” There was no argument to the jury that Johana had been kidnapped at any earlier time for any other purpose.

Also, even though Johana was told she could not leave right after her failed attempt to lure out Oscar, she testified that she did not want to leave at that point either. At oral argument, respondent contended that no kidnapping occurred until Johana was driven away from the hotel and toward the remote area where the attempted murder took place.

The only evidence about that kidnapping came from Johana, who said that soon after the sex assaults ended, she was made to leave with the others. According to Johana, after driving for some distance they stopped at a spot, prompting Weecho to say it was a good place. They drove off to get food and liquor, then returned to that same spot. Upon their return, Chava placed a phone call and told the person on the other end that “we’re here.” Right after that, Johana was pushed from the car and the stabbings began.

At oral argument, respondent contended that Chava’s phone call to report “we’re here” creates an inference that Johana was initially driven to the remote area in order to keep her quiet and that the intent to kill her was formed when Chava made that call and received a kill order. This conclusion is pure speculation and we do not believe that any such inferences arise from the evidence. Instead, the evidence permits only one inference: that Johana had been driven to a predetermined destination in order to kill her and that Chava was reporting their planned arrival to another ESL member. Therefore, unlike Surdi, there was no evidence of separate intents or objectives between the kidnapping and the attempted murder. Instead, as in Latimer, supra, 5 Cal.4th at pages 1216-1217, the kidnapping was carried out for one purpose only – to try and kill Johana. Accordingly, appellants’ sentence of life plus 63 years should be reduced by the five years imposed for the kidnapping.

2. There Was Sufficient Evidence to Support the Street Gang Allegations

Appellants’ prison sentences were enhanced because the jury found they committed each of their crimes for the benefit of a street gang. (§ 186.22.) In order to do so, the jury had to find that ESL was a criminal street gang, which the statute defines as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [of certain enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) Among the crimes enumerated by the statute for this purpose are assault with a deadly weapon, robbery, murder and manslaughter, witness intimidation, rape, kidnapping, and drug sales. (See § 186.22, subd. (e).) Appellants contend there was insufficient evidence that one of ESL’s primary activities was the commission of any of the enumerated crimes.

They rest this contention on the testimony of the prosecution’s gang expert witness, police detective Abel Morales. Morales answered “yes” when asked whether a street gang was “three or more people with some sort of common name, some sort of common identifier that gather together as individuals to collectively commit a crime, right?” Asked what some of those crimes were, Morales listed murder, attempted murder, drive-by shootings, witness intimidation, extortion, drug sales and drug trafficking. In order to establish that ESL had engaged in a pattern of criminal gang activity, Morales also testified that ESL member David Moreno was convicted of two counts of attempted murder on ESL’s behalf for incidents that took place in 2003. Appellants contend that Morales’s definition of a street gang did not address the primary activities element and that none of the evidence showed that ESL’s primary activities involved any of the offenses listed in section 186.22. At most, they contend, the evidence showed that some ESL members occasionally committed crimes, which is insufficient. (People v. Perez (2004) 118 Cal.App.4th 151, 159-160.) We disagree.

First, we do not read Morales’s testimony as narrowly as do appellants. Morales agreed that a gang was three or more people who “gather together as individuals to collectively commit a crime.” Missing but implicitly stated in the italicized portion of that statement are the words “in order,” so that it refers to individuals who gather in order to commit crimes. If a group of persons gathers in order to do something, that something must be their essential purpose or, at least, a primary activity. (See People v. Perez, supra, 118 Cal.App.4th at pp. 159-160 [primary activities under section 186.22 means committing the requisite crimes is one of the group’s chief or principal occupations].) Next, Morales testified that ESL was a gang, with more than 200 members and several territories. He testified that Luna, who ordered Johana to lure out Oscar, was an ESL “shot caller,” and that a shot caller was a “top person,” a gang member who advanced to a position of authority by “going out and committing crimes, the worst and the more crimes you commit, the higher you come up in and the fastest you come up within the gang.” Morales also testified that Chava, at whose home Johana and the others gathered, was an ESL associate, meaning someone who was not officially a member, but who hung out with the gang and assisted them “in committing crimes,” including by driving them to certain areas in order to kill people.

In addition to this, the jury could consider evidence of ESL’s current offenses – the rape, kidnapping, and attempted murder of Johana and the attempt to lure Oscar outside to his death. (Perez, supra, 118 Cal.App.4th at p. 159 [evidence of both past and present criminal activities of gang is relevant to primary activities determination].) Taken as a whole, this evidence raised an inference that one of ESL’s primary activities was the commission of various crimes, including murder, kidnapping, and rape.

3. CALJIC No. 1.23.1 Was Not An Improper Presumptive Instruction

In connection with the forcible rape and oral copulation in concert charges, the jury was instructed with CALJIC No. 1.23.1, which defines consent in part as meaning “positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” Sandoval contends this instruction violated his constitutional due process rights because it created a mandatory rebuttable presumption of no consent that shifted the burden of proof on that issue to him. (Yates v. Evatt (1991) 500 U.S. 391, 400-401, overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 74, fn. 4.) We disagree.

First, his contention is based on the decisions in People v. Williams (1992) 4 Cal.4th 354 and People v. Mayberry (1975) 15 Cal.3d 143, which held that, as a defense on the issue of intent, a sex crime defendant had the burden of raising a reasonable doubt that he held a mistaken but reasonable belief that his victim consented. Sandoval never argued that issue to the jury, contending instead that the evidence raised reasonable doubts as to whether he had been involved at all. Second, the court in People v. Gonzalez (1995) 33 Cal.App.4th 1440 (Gonzalez) rejected the same contention. Noting that CALJIC No. 1.23.1 did no more than define consent, the Gonzalez court held that it did not shift the burden of proof on consent to the defense or create a presumption that consent was lacking. When read together with other instructions that told the jury the prosecution bore the burden of proving a lack of consent, Gonzalez held that CALJIC No. 1.23.1 did not violate due process. (Id. at pp. 1443-1444.)

Sandoval asks us to disregard Gonzalez because the instructions given here did not clarify the prosecution’s burden of proof on the consent issue. He is not correct. CALJIC No. 2.90 told the jury that the prosecution bore the burden of proving Sandoval guilty beyond a reasonable doubt. The jury was told that in order to prove the two sex crimes, the crimes had to be against Johana’s will, without her consent, by force or violence. As in Gonzalez, we fail to see how the jury could possibly have believed that Sandoval bore the burden of proving that Johana consented to the sex crimes. We therefore affirm those convictions.

4. The 10-Year Street Gang Enhancement Must Be Reversed on the Attempted Murder Sentence

The trial court imposed a 10-year street gang enhancement on appellants’ life sentences for attempted murder. Respondent concedes this was error and asks us to strike that enhancement and modify the abstract of judgment to instead impose the required minimum parole eligibility period of 15 years. (See People v. Harper (2003) 109 Cal.App.4th 520, 524-525; § 186.22, subds. (b)(1)(C), (b)(5).) We shall do so.

DISPOSITION

For the reasons set forth above, we modify the judgment as follows: (1) to stay appellants’ 5-year sentences for kidnapping; and (2) to strike the 10-year, section 186.22 street gang enhancement on the attempted murder life sentence and replace it instead with the minimum 15-year parole eligibility period required by section 186.22, subdivision (b)(5). The clerk of the superior court is directed to modify the abstract of judgment to reflect these changes and then send a corrected copy of the abstract to the Department of Corrections. In all other respects the judgment, including the life sentences and the remaining consecutive prison terms and sentence enhancements, is affirmed.

WE CONCUR: COOPER, P. J., FLIER, J.


Summaries of

People v. Arreola

California Court of Appeals, Second District, Eighth Division
Sep 23, 2008
No. B195597 (Cal. Ct. App. Sep. 23, 2008)
Case details for

People v. Arreola

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHNNY ARREOLA et al., Defendants…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Sep 23, 2008

Citations

No. B195597 (Cal. Ct. App. Sep. 23, 2008)