Opinion
B315557
11-21-2023
THE PEOPLE, Plaintiff and Respondent, v. XXAVIER DON CRUZ, Defendant and Appellant.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Rogelio Delgado No. KA120005, Judge. Affirmed.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
A jury convicted defendant Xxavier Don Cruz of one count of first degree premeditated murder (Pen. Code, § 187, subd. (a))for fatally shooting Francisco Lopez. The jury also convicted Cruz of one count of attempting to dissuade a witness. (§ 136.1, subd. (a)(2).) The trial court sentenced Cruz to 53 years to life in prison, consisting of 25 years to life for murder, with a consecutive 25 years to life enhancement for discharging a firearm and causing great bodily injury or death (§ 12022.53, subd. (d)), plus a consecutive term of three years for attempting to dissuade a witness.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Cruz contends the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter. He also claims we must remand the case for resentencing because the trial court was unaware of its discretion to impose a concurrent rather than consecutive sentence for attempting to dissuade a witness, or to impose a lesser firearm enhancement. We find no prejudicial error, and we affirm.
FACTS AND PROCEEDINGS BELOW
This case involves a tangle of relationships among members of two street gangs in La Puente, along with their friends and relatives. We describe only the facts necessary for the resolution of the issues in this appeal.
Cruz is a Puente 13 gang member. The main prosecution witness, Cr. F., was dating Cruz's relative R.T., who is a member of the Townsmen gang. According to the prosecution's gang expert, the Townsmen and Puente 13 are both "under the umbrella of the Mexican Mafia." The victim, Lopez, was a friend of both Cruz and R.T.
We use initials pursuant to the guidance of California Rules of Court, rule 8.90(b).
On the evening of June 22, 2018, Cruz traveled together with his romantic partner, Ch. P., and Cr. in a car Cruz had stolen to Lopez's home in La Puente. The three picked up Lopez and drove to a nearby convenience store.
Lopez went into the store, then came back out and stood at the front passenger side window talking with Cr., who was in the driver's seat. Cr. later told police that she saw Cruz, who was sitting in the rear passenger seat, surreptitiously pull out a gun. She heard a gunshot, and Lopez was no longer standing at the window. Cruz told Cr. to drive away, and Cr. did. Lopez, who had suffered a gunshot wound to the face, was transported to the hospital, where he later died.
Cr. told police that she had not known the shooting was going to happen. She asked Cruz why he had shot Lopez, and Cruz said "it had to be done" because Lopez had been "snitching." If Lopez had not been killed, a "green light" would have issued for the Townsmen gang, potentially endangering R.T., a Townsmen member who was in jail at the time. A gang expert testified that a green light is an authorization from a higher level gang member to kill someone. During the drive, Cruz called someone named Dopey and told him something to the effect of, "[T]he cupcakes were delivered."
Two days later, Cruz was involved in a traffic collision, and his car flipped over. He fled the scene on foot but was apprehended by police. As his car was being turned right side up so that it could be towed, a bag containing 76 rounds of .22 caliber ammunition fell out the window. Police searched the car and found a zip gun loaded with a .22 caliber bullet and a magazine containing 16 rounds of the same ammunition. Forensic testing revealed that a spent casing recovered from the scene of the shooting had been fired from the same zip gun. Cruz's DNA was recovered from the magazine, as well as from the zip gun's trigger and handle.
On July 8, 2018, about two weeks after he was taken into custody, Cruz said in a recorded jailhouse conversation with Ch. that he had "paperwork" on Cr., meaning he had evidence Cr. had snitched on him. In another call later the same day, Ch. told Cruz that she had spoken to someone named "Clem" about the paperwork, and that Clem would "take care of it." In a third conversation the same day, Ch. spoke with Cruz's stepbrother, who was also in custody, about the paperwork on Cr. and referred to Cr. as a "snitch."
In another recorded phone call about a week later, Cruz told Ch. that he was worried he would never be released from custody, and Ch. replied that as long as Cr. did not say anything, "we're good." In another recorded call the same day, Cruz told Ch. that Cr. "has to fucking go."
In the morning when Cr. was scheduled to testify at trial, a sheriff's deputy saw her outside the courtroom looking upset. The deputy asked if Cr. was okay, and she started crying. She told the deputy that she was worried about her boyfriend, R.T. Later that day, after she testified, Cr. told the deputy that she believed R.T. would be green lit because she had testified, but that the gang was giving her an opportunity to fix it by testifying favorably. The deputy drove Cr. home, and during the drive, she told the deputy that she had done everything she could to change her testimony, and that as a result, she believed R.T. would be okay. In her trial testimony that day, Cr. stated that she could not remember many events from the night of the shooting, nor what she had told police previously about it.
Later the same day, Cr. spoke with R.T., who was in custody, in a recorded conversation. She said that she "did [her] part" and "made [her]self look . . . like a liar" by saying she did not remember the events surrounding the shooting. R.T. warned her, "don't buy that . . . Lexus just yet cause . . . you never know what they might put in there[,] a bomb or something like that." Cr. replied, "I don't think I'm going to get it after all," and that she was no longer worried. She told R.T., "[Y]ou should be okay because I did my part."
Cruz testified in his own defense. He admitted he was a Puente 13 gang member, but denied he would kill someone if instructed to do so by a higher-ranking gang member. Cruz viewed Lopez as a good friend, though the day of the shooting was the first time they had seen one another for about a year. Cruz gave largely the same account as Cr. of the events leading up to the shooting: Cruz, Cr., and Ch. picked Lopez up from his house and drove him to the convenience store. Lopez went into the store, then came back out and stood beside the front passenger window.
According to Cruz, Lopez was "paranoid" because "a lot of people were saying things about him." Cruz and Cr. offered to drive Lopez home, but Lopez insisted on walking. Lopez asked to borrow Cruz's gun for protection on the walk home, so Cruz passed it to him. Lopez was nervous and shaking as he took the gun. Lopez turned back to Ch., who was sitting next to him in the back seat, and a "split second" later, Cruz heard the gun go off. The gun fell into the front passenger seat. Cruz panicked and told Cr. to drive away.
DISCUSSION
A. Any Error in Failing to Instruct the Jury on Involuntary Manslaughter Was Harmless
Cruz contends the trial court erred by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. He argues that a reasonable jury could have convicted him of manslaughter if it concluded from his testimony that he passed the gun to Lopez in a negligent manner, causing it to fire accidentally in Lopez's hands. We need not decide whether Cruz is correct because, even if so, the error was harmless. The jury, in convicting Cruz of first degree murder rather than second degree murder, necessarily found beyond a reasonable doubt that Cruz acted with premeditation in killing Lopez. The jury thus implicitly rejected Lopez's theory.
1. Sua Sponte Duty to Instruct on Lesser Included Offenses
In People v. Breverman (1998) 19 Cal.4th 142, disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 260, footnote 7, our Supreme Court explained the trial court's sua sponte duty to instruct the jury on relevant lesser included offenses:"' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]' [Citations.]" (Breverman, supra, at pp. 154-155.)
Cruz argues that there was substantial evidence that he committed involuntary manslaughter rather than murder, and that accordingly the trial court was required to instruct on the lesser offense. "Generally, involuntary manslaughter is a lesser offense included within the offense of murder" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145) and therefore triggers a sua sponte duty to instruct in cases where there is sufficient evidence to support a conviction for involuntary manslaughter rather than murder. (People v. Edwards (1985) 39 Cal.3d 107, 116-117, fn. 10.)
Section 192 defines manslaughter as "the unlawful killing of a human being without malice." Manslaughter is involuntary when the defendant kills "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Id., subd. (b).)" 'The words "without due caution and circumspection" refer to criminal negligence-unintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences. [Citation.] If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence.'" (People v. Guillen (2014) 227 Cal.App.4th 934, 1027.)
According to Cruz, the trial evidence was consistent with a theory that he acted negligently in handing the gun to Lopez, causing the gun to fire. He cites several cases in which defendants were convicted of involuntary manslaughter for accidentally discharging a gun. (E.g., People v. Velez (1983) 144 Cal.App.3d 558; People v. Ramirez (1979) 91 Cal.App.3d 132.) The People argue that those cases are inapposite because Cruz testified that the gun discharged after he handed it to Lopez. Cruz responds that this does not rule out an involuntary manslaughter conviction because the jury might have found that his "negligent handling of the firearm when he turned it over to Lopez contributed to Lopez's misfiring the gun."
2. Harmless Error
We need not decide whether there is merit to Cruz's argument that an involuntary manslaughter instruction was warranted because even if so, any error in the trial court's failure to give such an instruction was harmless.
The parties disagree as to the standard we should use in evaluating harmless error. The People argue for the more lenient People v. Watson (1956) 46 Cal.2d 818 standard, which is the ordinary test of harmless error under state law. Under this test, a defendant is not entitled to reversal "unless it appears 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred." (People v. Breverman, supra, 19 Cal.4th at p. 149, quoting Watson, supra, at p. 836.) In Breverman, our Supreme Court held that the Watson test applies in cases involving the trial court's failure to instruct sua sponte on a lesser included offense because that duty is imposed by state law, not the Constitution. (Breverman, supra, at pp. 172-173.) Cruz argues for the more stringent Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] standard, which applies when an error affects the defendant's federal constitutional rights. This test requires reversal unless the trial court determines the error "was harmless beyond a reasonable doubt." (Id. at p. 24.) Cruz notes that our Supreme Court recently adopted the Chapman standard of harmless error in cases where the trial court failed to instruct the jury on voluntary manslaughter as a lesser included offense of murder. (People v. Schuller, supra, 15 Cal.5th at p. 260.) The court reasoned that under the structure of California homicide law, "when provocation or imperfect self-defense are at issue, the prosecution is compelled to disprove those circumstances beyond a reasonable doubt." (Id. at p. 254.) Thus, "a trial court's failure to instruct on imperfect self-defense amounts to an incomplete instruction on the malice element of murder," which violates a defendant's federal constitutional rights and is subject to review under the Chapman standard. (Schuller, supra, at p. 254.) Cruz argues the same logic applies to involuntary manslaughter, which can also be defined as murder minus malice. (See People v. Rogers (2006) 39 Cal.4th 826, 884 ["Involuntary manslaughter is 'the unlawful killing of a human being without malice aforethought and without an intent to kill' "].)
Again, we need not resolve the disagreement because any error in this case was harmless even under the stricter Chapman standard. Cruz argues "the jury was unfairly forced into an all-or-nothing choice between" convicting him of murder or acquitting him altogether, but the jury in fact had three options. It could have acquitted him entirely, or it could have convicted him of either first or second degree murder. The jury was instructed that, to convict Cruz of first degree murder, it must conclude that he "acted with premeditation," that is, it must conclude that "he decided to kill before completing the act that caused death." The instructions for second degree murder allowed the jury to convict Cruz if it found he acted with implied malice, or in other words, that "[h]e intentionally committed [an] act" that "he knew . . . was dangerous to human life," and "deliberately acted with conscious disregard for human life." If the jury believed Lopez's killing was in any sense unintentional, it would have convicted Cruz of no more than second degree murder. We further note the jury found true the firearm enhancement allegations, and specifically found Cruz personally and intentionally discharged the firearm and rejected his claim that gun went off negligently. The conviction of first degree murder and the true finding on the firearm enhancements show beyond a reasonable doubt that an instruction on involuntary manslaughter would have made no difference in the jury's verdict.
B. A New Sentencing Hearing Is Not Required
Cruz argues that we must vacate his sentence because the trial court was unaware that it had the discretion to impose a concurrent, rather than consecutive, sentence for intimidating a witness, and to impose a less serious version of the firearm enhancement. We disagree. Although the court did not mention either of these options during the sentencing hearing, we may not infer from its silence that the court was unaware of its discretion.
1. Legal Background
A trial court that sentences a defendant while unaware of the full "scope of its discretion is understood to have abused it." (People v. Tirado (2022) 12 Cal.5th 688, 694.)"' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record."' [Citations.]" (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)
Nothing in the law requires the trial court to spell out all of its discretionary sentencing decisions, however, and "we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) Accordingly," 'if the record is silent' on the court's awareness of its discretionary authority in sentencing, we must presume the court understood the scope of its discretion and affirm." (People v. Ochoa (2020) 53 Cal.App.5th 841, 852, quoting People v. Lee (2017) 16 Cal.App.5th 861, 867.) The record must at least be "ambiguous" before we consider vacating a defendant's sentence on this basis. (Ochoa, supra, at p. 852.)
2. Section 12022.53, Subdivision (d) Firearm Enhancement
At the sentencing hearing, the trial court explained its reasoning regarding the firearm enhancement. The court stated that it was "aware that it does have the right to strike or stay the [section] 12022.53[, subdivision] (d) . . . gun use enhancement, but the court is going to not do that based on the underlying facts of this case, the callousness and the cruelty of [the] ambush-style murder of the victim in this case, so the court is not going to exercise that discretion."
Cruz argues that despite this apparently clear statement regarding the enhancement, the record is ambiguous because it does not show whether the court understood it had the authority to impose a lesser enhancement under section 12022.53, subdivision (b) or (c), as opposed to an all-or-nothing decision to impose or strike the enhancement under subdivision (d). According to Cruz, "At the time of the sentencing [in 2021] there was a split of opinion over whether the court had [the] discretion" to strike a greater enhancement and impose a lesser one. Subsequently, the Supreme Court in Tirado held that the court may strike an enhancement under section 12022.53, subdivision (d) and impose an enhancement under either subdivision (b) or (c) of the same statute even if the defendant was not charged with the lesser enhancements. (People v. Tirado, supra, 12 Cal.5th at p. 700.)
But the controversy prior to Tirado was over the authority to impose an uncharged lesser enhancement. It was already clear at the time of Cruz's sentencing what would happen in a case like this one, "where the jury had also returned true findings of the lesser enhancements under section 12022.53, subdivisions (b) and (c)." (People v. Morrison (2019) 34 Cal.App.5th 217, 222.) In such a case, the decision to strike an enhancement under section 12022.53, subdivision (d) "would leave intact the remaining findings, and an enhancement under the greatest of those provisions would be mandatory unless those findings were also stricken in the interests of justice." (Morrison, supra, at p. 222.) There is no basis for inferring the trial court did not understand this mechanism, merely because it did not discuss it explicitly on the record.
3. Consecutive Sentencing Under Section 1170.15
Cruz also argues that we must remand the case for a new sentencing hearing because it is not clear from the record whether the trial court understood its discretion to impose a concurrent sentence for dissuading a witness. In most instances where the trial court imposes consecutive sentences for multiple offenses, the defendant's sentence on all subordinate terms-i.e., all terms other than the offense calling for the longest prison term-is one-third the middle term for that offense. (See § 1170.1, subd. (a).) An exception exists when the subordinate term is for intimidating a witness (§ 136.1). In that case, "the subordinate term . . . shall consist of the full middle term of imprisonment." (§ 1170.15.) Section 1170.15 "does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.)
The trial court in this case sentenced Cruz to the middle term of three years for violating section 136.1. Cruz argues the trial court did not understand that section 1170.15 allowed for the imposition of a concurrent sentence, but the only evidence he cites in support of that theory is that the court did not mention that section, even as it explained its reasoning for declining to strike the firearm enhancement. In essence, Cruz asks us to infer from the court's silence that it did not understand its discretion. That is not the law. (See People v. Ochoa, supra, 53 Cal.App.5th at p. 852.)
Section 136.1 provides for a variety of sentences depending on the severity of the offense. In this case, a three-year middle term applied because the jury found that Cruz committed the offense "in furtherance of a conspiracy." (§ 136.1, subd. (c)(2).)
DISPOSITION
The judgment of the trial court is affirmed.
We concur: ROTHSCHILD, P. J., CHANEY, J.