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People v. Ceja

California Court of Appeals, Second District, Third Division
Apr 28, 2009
No. B206860 (Cal. Ct. App. Apr. 28, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA069917. Tomson T. Ong, Judge.

Landra E. Rosenthal, 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, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


KITCHING, J.

Jose Roberto Ceja appeals from the judgment entered following his conviction by jury of first degree murder (Pen. Code, § 187), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), with a court finding that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 36 years to life. We modify the judgment and, as modified, affirm it with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 10:15 p.m. on April 12, 2006, Petra Morales and Fernando Huerta (the decedent) went to a Long Beach restaurant and bar where Eastside Longos gang members regularly congregated. Morales testified she knew Huerta and appellant. She was acquainted with Steven Romero (also known as Capone) and a person named Gordo. Morales also knew that Huerta, appellant, Romero, and Gordo were Eastside Longos gang members. Huerta, appellant, and Romero were members of three different cliques, respectively, of the gang.

The names Romero and Capone were used interchangeably at trial. We will use the name Romero.

Later on the night of April 12, 2006, Morales saw Huerta arguing with appellant and Romero. Gordo and a fourth man were about six feet behind appellant and Huerta. Huerta was stabbed repeatedly and, most likely, at least two weapons were used. Huerta fled towards the front entrance of the restaurant but was mortally wounded. Morales saw appellant and Romero flee to a white Honda and drive away quickly. Gordo and the fourth man followed in another vehicle.

Morales did not testify at trial. Her preliminary hearing testimony was read into evidence at trial.

About 10:45 p.m. on April 12, 2006, Reyes Serano was in his vehicle, which was parked in the restaurant’s parking lot. Serano saw a person, later identified as Huerta, walk toward Serano’s vehicle. Four Hispanic males exited a black SUV located in the parking lot. The four males repeatedly hit Huerta. Huerta fled towards the restaurant entrance, appeared to be hurt, and fell. The four males entered the SUV and drove away. A fifth man, associated with the other four, entered a gold-colored car and drove away.

Sometime before midnight on April 12, 2006, Jevi Alvarez was outside the restaurant when he heard females screaming. He turned and saw a man fall near the restaurant’s front entrance, and there was blood spreading on the man’s shirt. Alvarez saw a second male enter a car. The second male and a third male, both of whom were Hispanic, drove away quickly.

About 10:58 p.m., Los Angeles Police Officer Dennis Price received a call and went to the restaurant. He found Huerta lying outside the restaurant’s front entrance. Price also found a pair of scissors at the scene. DNA in blood found on the tip of the scissors matched Huerta’s DNA.

About 12:21 a.m. on April 13, 2006, Los Angeles Police Detective Daniel Mendoza arrived at the scene. Mendoza knew that a 31-year-old Hispanic male had been repeatedly stabbed. Mendoza testified that a patrol officer at the scene had located a witness who was “able to identify two of the suspects, indicating that they were Eastside Longo gang members.” The witness was Morales, and Mendoza was given the suspects’ monikers. Mendoza relayed the moniker information to gang detectives. Once Mendoza had spoken to Morales, Mendoza informed the gang detectives concerning who the individuals were. Mendoza was able to identify the two suspects as appellant and Romero.

In April 2006, Jessica Preli managed an apartment building in Eastside Longos gang territory in Long Beach. Nicholas Canales, a member of the gang, was Preli’s friend. During the early morning hours of April 13, 2006, Canales asked Preli if Canales’s friends, appellant and Romero, could use a vacant apartment, and she indicated yes. At one point, Preli saw Romero outside the apartment and told him that he had to remain inside. Appellant later used a cell phone to call a cab, and he left the apartment building in a cab. The cab picked him up at 8:11 a.m., and dropped him off at Eighth and Gardena at 8:17 a.m. The intersection of Eighth and Gardena was very near where appellant lived.

On April 19, 2006, police conducted a traffic stop of a Ford Mustang which appellant was driving. Appellant was arrested and police took from him, inter alia, his shoes. The shoes were stained with blood containing DNA which matched Huerta’s DNA. Police also recovered an eight-inch knife from the Mustang. On April 19, 2006, Mendoza spoke with appellant. Appellant claimed that he had not gone to the previously mentioned restaurant in a few years, and that he had stopped going there.

After his arrest, appellant, in jail, spoke with a male by phone. Appellant told the male that an investigator told appellant that police had found DNA on appellant’s shoes. The male told appellant to tell police that the shoes were not appellant’s shoes. Mendoza testified appellant replied, “don’t worry I got it all figured out, that’s why I need Lupita to come visit me.” Appellant very frequently mentioned Romero in appellant’s phone calls from jail. In one such call, appellant talked about appellant and Romero being “active.” Mendoza testified that appellant said, “you know how we do it, how we smash people on the Eastside.”

Mendoza testified he tried to subpoena Morales to appear at the preliminary hearing but she had gone to Colorado. Mendoza eventually succeeded in causing Morales to be subpoenaed, and he escorted her to appellant’s preliminary hearing. Mendoza testified that, as Mendoza and Morales were approaching the courtroom, appellant’s mother made a threat “regarding [Morales’s] potential testimony in the case[.]” Morales expressed concern to Mendoza about testifying, but nonetheless testified at the preliminary hearing. Morales knew she would be called to testify at trial, but returned to Colorado after the preliminary hearing. Mendoza testified Morales “got in trouble in Colorado for a case that dealt with narcotics distribution[,]” and she was placed on probation. Morales eventually absconded from probation and Mendoza was unable to locate her after August 2007.

Los Angeles Police Detective Chris Zamora, a gang expert, testified that appellant and Romero had been documented as having been together on previous occasions. Zamora opined at trial that the stabbing death of Huerta was committed for the benefit of, in association with, and in the furtherance of, the Eastside Longos gang, which was a criminal street gang. Zamora described the method of the killing as “shanking.” Zamora testified a gun was commonly used in gang culture but when a gang member approached the victim very closely and used a sharp weapon to stab the victim, the gang member was “sending a message” to the victim. A member of one clique of a gang could kill a member of another clique with a motive relating to narcotics or money. Appellant presented no defense evidence.

CONTENTIONS

Appellant claims the trial court erred by (1) receiving the evidence of the threat from appellant’s mother and (2) imposing a 10-year enhancement term pursuant to Penal Code section 186.22, subdivision (b)(1)(C).

DISCUSSION

1. The Evidence of the Threat from Appellant’s Mother Was Admissible.

a. Pertinent Facts.

Facts pertinent to appellant’s evidentiary claim were disclosed during pretrial proceedings, and during the presentation of evidence and jury argument. We set forth those facts below.

(1) Pretrial Proceedings.

After the jury was sworn, but before the presentation of the People’s evidence, the following proceedings occurred.

(a) The Hearing on the Admissibility of Morales’s Preliminary Hearing Testimony.

The court conducted a February 2008 hearing on whether Morales’s testimony at the preliminary hearing was admissible at trial on the grounds she was unavailable to testify at trial and her preliminary hearing testimony was admissible at trial under the hearsay exception for former testimony. During the hearing, the following facts were established.

The instant homicide occurred on April 12, 2006, and Mendoza was the investigating officer. Mendoza became aware that Morales was a witness. She gave statements that identified suspects and, in particular, appellant. When Mendoza interviewed Morales after the homicide, she indicated concern about her being identified as a witness.

After Morales made the statements to Mendoza about appellant, Mendoza tried to subpoena her to secure her attendance at appellant’s preliminary hearing. However, Morales had left the state and had established a residence in Colorado. At some point Morales called Mendoza and told him that she had left the state. She also changed her address in Colorado multiple times.

Nonetheless, Mendoza secured Morales’s attendance at appellant’s October 2006 preliminary hearing. On the day of the preliminary hearing, Mendoza and Morales were in an elevator in the courthouse and were en route to the courtroom. However, appellant’s mother was also in the elevator. Mendoza testified that appellant’s mother, Rosa Cabrera, “threatened [Morales] indicating that she shouldn’t testify and upset [Morales].” Morales was terrified and shaking. Mendoza escorted Morales to a safe location, then arrested Cabrera. Mendoza testified without objection that he handled the case (case No. NA073580) against Cabrera. Mendoza further testified without objection that, in that case, Cabrera was convicted of making a terrorist threat against Morales.

After Cabrera threatened Morales, Morales indicated she had concerns about testifying. Morales did not want to testify at the preliminary hearing, but nonetheless testified.

After Morales testified at the preliminary hearing, she returned to Colorado where she lived. Morales pled guilty in Colorado in March 2007, to selling narcotics, a felony. Sometime after appellant’s preliminary hearing, Morales contacted Mendoza and told him that Morales had been arrested in California. Mendoza learned that Morales had been placed on felony probation for a narcotics-related offense.

In August 2007, Mendoza went on vacation but called Morales and told her that he would be on vacation and that if she had any concerns she should call him at the police station. During the latter part of his vacation, Mendoza learned that Morales had left numerous messages. She appeared to be frightened, indicated she needed to speak with Mendoza, and indicated it was important. In the last message Morales left, she indicated she was afraid, she was receiving phone calls and people would hang up, and she was noticing people whom she did not recognize around her residence. Mendoza tried to call Morales at the previous number he had for her, but it was disconnected. Mendoza was trying to contact her in connection with the upcoming trial. Morales’s Colorado probation officer told Mendoza that she had not checked in with the probation department and a warrant would be issued for her arrest. Mendoza unsuccessfully had attempted to contact Morales after that but prior to trial.

Los Angeles County District Attorney Investigator John Waters testified he also tried to locate Morales. Waters learned that the Colorado probation department had closed its file on Morales in about August 2007 and had no idea where she was. Morales had warrants outstanding for her arrest for identity theft and for a narcotics-related offense. There was rumor she had gone to Mexico, and in December 2007 she was arrested at the border on the Colorado narcotics warrant. Waters was unable to serve Morales with a subpoena to secure her attendance at trial. The court ruled Morales was unavailable and her preliminary hearing testimony was admissible at trial under the former testimony hearsay exception.

(b) Discussions Regarding the Admissibility of Morales’s Prior Conviction.

Appellant’s counsel represented that Morales committed her narcotics offense in November 2006, i.e., after appellant’s preliminary hearing. The court indicated Morales’s narcotics conviction was admissible to impeach her.

(c) Discussions Regarding the Admissibility of the Threat from Appellant’s Mother.

Appellant later indicated to the court that he did not want any references made to alleged threats from Cabrera. Appellant argued there was no evidence that he had anything to do with the alleged threats, and evidence of same would be extremely prejudicial. The court suggested the matter was an issue for the jury to decide since Cabrera was appellant’s mother, and a jury instruction indicated it was for the jury to decide whether a defendant caused a third party to dissuade a witness. The court indicated that evidence of the threats by Cabrera was admissible, and not excludable under Evidence Code section 352. The court also indicated that appellant could argue to the jury that he knew nothing about the alleged threats.

(2) Proceedings at Trial.

(a) Presentation of Evidence.

During trial, appellant objected to testimony from Mendoza concerning Cabrera’s threat to Morales. The prosecutor indicated the threat was relevant to Morales’s demeanor and the way she testified. The court stated, “Sure. Not necessarily because she is not here, I mean, you know. I mean we already discussed that outside the presence of the jury.”

Appellant then asked if the prosecutor was going to stipulate that Morales had been involved in narcotics distribution. The prosecutor indicated he intended to elicit information on that issue from Mendoza.

Mendoza testified at trial concerning (1) his efforts to secure Morales’s attendance at appellant’s preliminary hearing, (2) Cabrera’s threat to Morales in the elevator, (3) Morales’s conduct after the preliminary hearing, and (4) her Colorado narcotics case, as reflected in the Factual Summary.

(b) Jury Argument.

During jury argument, appellant denied involvement in the stabbing. Appellant conceded that he and Huerta were Eastside Longos gang members from different cliques, that Huerta had been stabbed and murdered, and that appellant had been present at the time. Appellant’s counsel argued Huerta was stabbed, he died, and appellant “left, along with everybody else[.]” Appellant’s counsel conceded appellant “goes to [Preli’s vacant apartment] and stays the night, hides out the night.” Appellant suggested he and other gang members who hid did so simply because they did not know what was going to happen. Appellant argued that Romero and Morales fled. Appellant’s counsel asked the jury if Morales, “this woman from Mexico, Texas, Colorado, California” had an agenda, then counsel indicated no one knew.

b. Analysis.

Appellant claims the trial court erred by receiving the evidence of the threat from appellant’s mother. We disagree. An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance or Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725.) We need not decide whether the evidence of the threats was admissible as evidence that appellant directly or indirectly threatened Morales and thereby evidenced consciousness of guilt. Whether or not appellant was responsible for his mother’s threat, the threat, as shown below, was relevant and admissible on the issue of Morales’s credibility.

Prior to appellant’s preliminary hearing, Morales indicated to Mendoza that appellant and others committed the offense, but she indicated concern about being identified as a witness. There was therefore evidence that to some extent she was already afraid to testify by the time appellant’s mother threatened Morales about her potential testimony at the preliminary hearing.

Mendoza testified that appellant’s mother threatened Morales, indicating that Morales should not testify. This upset Morales, who was terrified and shaking. She did not want to testify, but testified nonetheless.

Morales subsequently returned to Colorado and called Mendoza numerous times because of events which intimidated her. While in Colorado, she was convicted on a narcotics charge and placed on probation. Police were never able to secure her attendance at trial in the present case. She absconded from probation in Colorado, and there was a rumor she had gone to Mexico.

The above facts were before the trial court at the time it ruled on the admissibility of Cabrera’s threat. The jury was entitled to hear evidence that the cause of Morales’s failure to testify at trial was not a concern that her testimony would be untruthful, that she might be impeached by her Colorado conviction, or that her testimony might impact her Colorado probation status, but fear resulting from the threat. The trial court did not abuse its discretion by ruling that evidence of the threat was relevant and not excludable under Evidence Code section 352. (Cf. People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Waidla, supra, 22 Cal.4th at pp. 723-725; People v. Avalos (1984) 37 Cal.3d 216, 232; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) Moreover, the application of ordinary rules of evidence, as here, does not violate a defendant’s right to due process. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428.)

To the extent the trial court’s reasoning differs from ours, we review the trial court’s ruling, not its reasoning. (People v. Mason (1991) 52 Cal.3d 909, 944.) We note appellant challenged Morales’s credibility during jury argument. To the extent appellant claims Mendoza’s testimony about the threat was hearsay, we reject the claim since the threat was not admitted for its truth but for its fear-producing effect on Morales and its impact on her credibility. Notwithstanding appellant’s suggestion to the contrary, Gutierrez concluded threat evidence was relevant to credibility and, when discussing that issue, Gutierrez did not refer to whether the defendant in that case authorized the threat. Gutierrez referred to the defendant’s authorization of the threat in dicta concerning a separate instructional issue and, in any event, Gutierrez is not the only case on which we rely and threat evidence is relevant to credibility whether or not the defendant is responsible for the threat.

Even if the trial court erred by admitting into evidence Mendoza’s testimony about the threat, reversal of the judgment is not warranted. Appellant concedes the threat evidence was brief, the exact nature of appellant’s mother’s effort to dissuade Morales from testifying was never established, and appellant’s mother simply may have said, “ ‘Please don’t testify against my son[.]’ ”

Appellant conceded during jury argument that someone stabbed and murdered Huerta, and that appellant was in close proximity to Huerta at the time. The real issue was identity. Accordingly, there is no dispute that Morales testified credibly insofar as her former testimony, and statements to Mendoza, evidenced that someone stabbed and murdered Huerta, and that appellant was in close proximity. It is highly unlikely the jury found Morales’s testimony credible on those issues but not on the issue of her identification of appellant as the murderer.

Moreover, leaving aside any statements from Morales that appellant was the murderer, we note that on April 19, 2006, police recovered shoes from appellant and they were stained with blood containing DNA which matched Huerta’s DNA. The jury reasonably could have concluded that appellant and Huerta were members of different cliques of the Eastside Longos gang, and that appellant killed Huerta--in front of a known hangout for the gangs’ members--with a narcotics- or greed-related motive and to “send[] a message.” Morales testified appellant fled the scene. Appellant’s flight evidenced consciousness of guilt. Appellant denied to Mendoza that appellant had been to the restaurant in a few years, a denial the jury reasonably could have viewed as false and another evidence of consciousness of guilt.

Further, evidence was presented that, after the killing, appellant hid at Preli’s apartment complex until he went home. Appellant conceded during jury argument that he hid, and the jury reasonably could have concluded he did so based on consciousness of guilt. Police recovered an eight-inch knife from the Mustang appellant later drove. In jail, appellant did not reject the male’s suggestion that appellant lie and say appellant’s shoes were not appellant’s, but told the male that appellant had it all figured out and needed someone to visit him. Appellant also said, “you know how we do it, how we smash people on the Eastside.” Zamora testified the murder was committed for the benefit of a street gang, and the jury found appellant committed it for that purpose. Any trial court error in admitting into evidence the challenged threat was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

2. The 10-Year Enhancement Must Be Stricken, and a 15-Year Minimum Parole Eligibility Term Must Be Imposed.

a. Pertinent Facts.

As mentioned, the jury found true an allegation that appellant committed the murder for the benefit of a criminal street gang “within the meaning of Penal Code section 186.22[, subdivision] (b)(1)(C))[.]” At the sentencing hearing on March 25, 2008, the court, “[a]s to the special allegation under Penal Code section 186.22 subdivision (b),” imposed a consecutive 10-year enhancement. The court did not impose a 15-year minimum parole eligibility term.

b. Analysis.

As respondent concedes, the trial court erred by imposing the 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. Since appellant committed first degree murder (punishable by “imprisonment in the state prison for a term of 25 years to life” (Pen. Code, § 190, subd. (a)), he committed “a felony punishable by imprisonment in the state prison for life” within the meaning of Penal Code section 186.22, subdivision (b)(5). As a result, the trial court should have imposed a 15-year minimum parole eligibility term pursuant to Penal Code section 186.22, subdivision (b)(5), not a 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified by striking the 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement, and by imposing, pursuant to Penal Code section 186.22, subdivision (b)(5), a 15-year minimum parole eligibility term. As so modified, the judgment is affirmed. The trial court is ordered to forward to the Department of Corrections an amended abstract of judgment reflecting the above modifications.

We concur: KLEIN, P. J., ALDRICH, J.


Summaries of

People v. Ceja

California Court of Appeals, Second District, Third Division
Apr 28, 2009
No. B206860 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Ceja

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE ROBERTO CEJA, Defendant and…

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

Date published: Apr 28, 2009

Citations

No. B206860 (Cal. Ct. App. Apr. 28, 2009)