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People v. Chavez

California Court of Appeals, Second District, First Division
Mar 26, 2008
No. B197664 (Cal. Ct. App. Mar. 26, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROSENDO CHAVEZ, Defendant and Appellant. B197664 California Court of Appeal, Second District, First Division March 26, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA302761 Stephen A. Marcus, Judge.

Gary V. Crooks, 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 E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

MALLANO, Acting P. J.

Rosendo Chavez appeals from the judgment entered following a jury trial in which he was convicted of the attempted murder of Jose Reyes (Pen. Code, § 664/187), with further findings that he personally and intentionally discharged a firearm proximately causing great bodily injury and inflicted great bodily injury during the commission of the offense (id., §§ 12022.53, subd. (d), 12022.7). Defendant contends that the trial court erred in its instructions on enhancements, that evidence of an out-of-court statement should not have been admitted and the court erred in instructing on that statement, and that it was error to enhance his sentence under both sections 12022.53, subdivision (d) and 12022.7. We find merit in the later contention and order the trial court to stay the section 12022.7 enhancement. In all other respects, we affirm.

Unless otherwise specified, further section references are to the Penal Code.

BACKGROUND

Defendant was tried jointly with Santiago Ledesma, who was also alleged to have attempted to murder Reyes, with a further allegation that during the commission of the offense a principal was armed. (§§ 664/187, 12022, subd. (a)(1).) Ledesma is not a party to this appeal.

The evidence at trial established that Ledesma and Reyes are cousins and lived near each other in Los Angeles. Reyes’s sister and her husband lived in the same building as Reyes. On the evening of May 13, 2006, Reyes’s sister and her husband were walking on the street when they saw Ledesma walking with a man they did not know, who was later identified as defendant Chavez.

Reyes was also on the street and saw Ledesma, a few of Reyes’s friends, and the man later identified as Chavez (whom Reyes also did not know). Ledesma, Reyes’s friends, and Chavez were having an argument. Reyes approached the men and took Ledesma and Chavez aside. Both appeared to be drunk. Reyes and Ledesma exchanged insults, after which Reyes turned to walk away. As Reyes did so, he heard Ledesma say, “‘Shoot him.’” Reyes, who thought that the words were directed to Chavez, then turned back and saw Chavez shooting at him. Reyes was hit four times, sustaining serious injuries.

After being shot, Reyes ran toward his home, where he saw his sister and her husband. He told them he had been shot. When asked who had shot him, Reyes responded that it was “Santiago [Ledesma].” Reyes was taken to the hospital.

Detectives arrived at the hospital at 4:00 a.m. and were told that although Reyes could not speak because he was intubated following surgery, he was able to nod. The detectives showed a photograph of Ledesma to Reyes, who “was able to nod that this is a photo of his cousin Santiago [Ledesma].” Around 5:00 p.m. the next day, Reyes was shown a photographic lineup and selected a photograph of Chavez as the person who shot him. At trial, Reyes explained that after he had been shot, he was “screaming [his] cousin’s name [i.e., Santiago Ledesma,] because [he] didn’t know the other person’s name that was with [Ledesma].”

Chavez and Ledesma were arrested the next day. A handgun found in Chavez’s waistband was matched with shell casings found at the scene of the shooting.

Neither defendant presented any evidence in defense.

The prosecutor argued to the jury that Chavez shot Reyes and Ledesma aided and abetted the shooting. Chavez argued that Ledesma, whom Reyes identified to his sister and her husband immediately after the shooting as the person who shot him, did in fact shoot Reyes and that Chavez was, at most, an accessory after the fact to the shooting. Ledesma argued that Chavez was the shooter, and that Ledesma had no knowledge that Chavez would commit such an act.

Chavez and Ledesma were convicted as charged. Chavez was sentenced to the middle term of 7 years for attempted murder, enhanced by terms of 25 years to life under section 12022.53, subdivision (d), and 3 years under section 12022.7, for an aggregate term of 35 years to life in state prison. Ledesma was sentenced to the middle term of 7 years for attempted murder, enhanced by 1 year under section 12022, subdivision (a)(1), for an aggregate term of 8 years in state prison.

DISCUSSION

1. Instructions on Enhancements

When the jury was instructed on the elements of personal use and intentional discharge of a firearm (CALCRIM No. 3149) and on the personal infliction of great bodily injury (CALJIC No. 17.20), the court stated that the instructions applied only to defendant Chavez. Relying on cases such as People v. Flood (1998) 18 Cal.4th 470, Chavez contends that these instructions “effectively directed a verdict since [Chavez’s] defense was identity and the court indicated by its instructions that [Chavez] was the perpetrator.” We conclude that the instructions were proper.

“[J]ury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution. [Citations.] Such erroneous instructions also implicate Sixth Amendment principles preserving the exclusive domain of the trier of fact. [Citations.] ‘Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]’ [Citations.]” (People v. Flood, supra, 18 Cal.4th at p. 491.)

But this is not like People v. Flood, supra, 18 Cal.4th 470. In Flood, the defendant was prosecuted for evading a vehicle operated by a pursuing peace officer, but the element of whether distinctive uniforms were being worn was removed from the jury by an instruction that the persons from whom the defendant fled were “peace officers.” (Id., at pp. 475, 482; see also People v. Hedgecock (1990) 51 Cal.3d 395, 407–408 [in perjury trial, court removed from the jury the issue of whether an omission or misstatement of fact was material]; People v. Figueroa (1986) 41 Cal.3d 714, 723–724, 740 [court instructed that a “security” was involved where an element at issue was whether certain promissory notes constituted securities].)

Because Chavez was the only defendant charged with personal use of a firearm or personal infliction of great bodily injury, instruction on these enhancements could apply only to him and not to Ledesma. But the instructions did not relieve the prosecution of the burden of proving the elements of these enhancements against Chavez, notwithstanding that they precluded the possibility of finding that Ledesma was the shooter. Rather, these standard instructions required the jury to find whether Chavez personally and intentionally fired a gun at Reyes. If the jury did not conclude that these elements had been shown, the verdict forms presented the option of finding the enhancements not true. Accordingly, Chavez’s contention that the instructions directed a verdict against him must be rejected.

2. Ledesma’s Statement as Evidence

Chavez contends evidence of Ledesma’s statement that Chavez should “shoot him” violated Chavez’s constitutional rights under Aranda-Bruton. We disagree.

People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620].

Before the start of trial, the prosecutor noted that Chavez and Ledesma had each made postarrest statements to the police which implicated the other in the shooting. The prosecutor added that she did not plan to introduce these statements in her case-in-chief, but subject to Aranda-Bruton considerations might seek to use the statements if either defendant took the stand to testify. Chavez’s counsel urged that the statements could not be sanitized under Aranda-Bruton, but counsel for both defendants stated that no decision had been made as to whether their clients would testify (ultimately, neither did). The discussion ended with the court noting there was nothing to rule on at that time.

Testifying for the prosecution, Reyes stated that he heard Ledesma tell Chavez to shoot. No objection was interposed. Reyes was later asked if he thought Ledesma’s statement was directed toward Chavez. At this point, counsel for Chavez objected on the ground that the question called for speculation and requested a mistrial. The objection was overruled and the request for a mistrial was denied, but Aranda-Bruton was not mentioned. (As noted above, Reyes answered that he thought Ledesma’s statement was directed toward Chavez.) Thus, any contention regarding the propriety of the testimony under Aranda-Bruton has been forfeited. (See People v. Waidla (2000) 22 Cal.4th 690, 717.)

We further note that an Aranda-Bruton objection would not have been well taken. Under Aranda-Bruton, admission into evidence of a statement by one defendant that also incriminates a second defendant generally violates the confrontation rights of the nondeclarant defendant. (Bruton v. United States, supra, 391 U.S. at pp. 126–137.) In Richardson v. Marsh (1987) 481 U.S. 200 [107 S.Ct. 1702], it was further explained that the rule is limited to statements “that are not only ‘powerfully incriminating’ but also ‘facially incriminating’ of the nondeclarant defendant. [Citation.]” (People v. Fletcher (1996) 13 Cal.4th 451, 455–456.) Ledesma’s suggestion that Chavez shoot Reyes did not facially incriminate Chavez. Rather, the statement required additional evidence to support a finding that Chavez actually did shoot Reyes, which was supplied by Reyes’s testimony that he saw Chavez shoot and corroborated by evidence of Chavez’s being found in possession of the gun used in the shooting. (See Richardson v. Marsh, supra, 481 U.S. 208; People v. Fuentes (1998) 61 Cal.App.4th 956, 963.) Accordingly, Chavez’s claim of Aranda-Bruton error must be rejected.

3. Instruction on Ledesma’s Statement

Chavez contends that even if Ledesma’s “shoot him” statement did not violate Aranda-Bruton, his constitutional rights were violated when the trial court’s instructions did not prohibit use of that statement against Chavez. Again, we disagree.

The jury in this case was instructed that Ledesma had made an oral statement before trial which, if the jury believed it had been made, should be considered along with other evidence against both defendants (CALCRIM No. 358 [Evidence of Defendant’s Statements]), and that Ledesma could not be convicted based on his statement alone but that other evidence was needed (CALCRIM No. 359 [Corpus Delicti: Independent Evidence of a Charged Crime]).

To the extent that evidence of Ledesma’s statement was not admissible against Chavez, it was Chavez’s burden to request that the jury be instructed as to appropriate limitations. (Evid. Code, § 355; People v. Lang (1989) 49 Cal.3d 991, 1020.) In addition, the instruction did not affect Chavez’s substantial rights, which is required for appellate review of an instruction to which no objection was made. (Pen. Code, § 1259.) Finally, Ledesma’s statement incriminated Ledesma as an aider and abettor of the attempted murder. Given Reyes’s testimony that Chavez was the shooter, his explanation that immediately after being shot he identified Ledesma to his sister and her husband because he did not know Chavez’s name, and evidence that Chavez was arrested in possession of the gun with which Reyes was shot, it is not reasonably probable that revision of the instructions about which Chavez complains would have affected the verdict.

4. Imposition of Enhancements

Chavez’s sentence was enhanced by 25 years to life under section 12022.53, subdivision (d), and by 3 years under section 12022.7. Section 12022.53, subdivision (f), provides that “[a]n enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” (See also People v. Oates (2004) 32 Cal.4th 1048, 1056–1057.) Chavez contends, and the Attorney General aptly concedes, that the section 12022.7 enhancement may not stand. We shall order the trial court to stay it. (See Cal. Rules of Court, rule 4.447; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061; People v. Jones (2000) 82 Cal.App.4th 485, 493.)

The analogous issue of whether lesser enhancements should be stricken, stayed, or not imposed at all when separate firearm enhancements are found under sections 12022.5 and 12022.53 is pending before the Supreme Court in People v. Gonzalez (2006) 146 Cal.App.4th 327, review granted March 14, 2007, S149898.

DISPOSITION

The trial court is ordered to modify the judgment by staying imposition of sentence on the enhancement under Penal Code section 12022.7, and to forward a copy of a modified abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

We concur: ROTHSCHILD, J., JACKSON, J.

Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Chavez

California Court of Appeals, Second District, First Division
Mar 26, 2008
No. B197664 (Cal. Ct. App. Mar. 26, 2008)
Case details for

People v. Chavez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROSENDO CHAVEZ, Defendant and…

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

Date published: Mar 26, 2008

Citations

No. B197664 (Cal. Ct. App. Mar. 26, 2008)