Opinion
G053925
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL FLORES, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF2362) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed and remanded. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of multiple crimes, including two counts of attempted murder with attendant firearm enhancements, for shooting at a pair of rival gang members. On appeal, he contends the evidence supports only one count of attempted murder, not two, and the prosecution violated its duty to disclose exculpatory evidence. We reject theses contentions and affirm the judgment. However, we agree with appellant that the matter must be remanded to allow the trial court to decide whether to strike his firearm enhancements in the interest of justice.
FACTS
One morning, brothers Edgar and Dorian Jimenez were talking on the sidewalk in front of their house on Ross Street in Santa Ana. They were standing about 10 to 12 inches apart when appellant suddenly appeared at the nearby intersection of Ross and Washington. Appellant pulled a gun from his waist band, aimed it directly at the Jimenez brothers, and fired a single shot in their direction. The shot missed the brothers, and they fled to safety behind a gate. Following the shooting, appellant cursed his failure ("Fuck!") and tucked the gun back in his waistband as he hurried from the scene. He tried hiding in the surrounding area but was apprehended within minutes. Along his escape route, the police found his sweatshirt and a large revolver. The gun's hammer was pulled back, and its cylinder contained two expended cartridges and four live rounds.
A gang expert testified appellant and the Jimenez brothers belonged to rival gangs that were in the midst of a heated turf war when this case arose. He said that by shooting at the Jimenez brothers in front of their own house, appellant committed the "ultimate [act of] disrespect" toward his rivals. The expert also stated gang members are generally reluctant to cooperate with the police, even when they are victims of crimes. This proved true here. When the police tried to contact the Jimenez brothers right after the shooting, they hurried inside their house and refused to answer the door. They did not testify at trial, either.
Nonetheless, the jury convicted appellant of two counts each of attempted premeditated murder and assault with a firearm, and one count each of illegal gun possession and discharging a gun in a school zone. The jury also found true enhancement allegations that appellant personally used and discharged a firearm and that he acted for the benefit of a criminal street gang. The trial court sentenced him to prison for 35 years to life for his crimes.
The shooting occurred across the street from Willard Intermediate School. Surveillance cameras from the school captured appellant walking on Ross Street just before the shooting and students taking cover after he fired his gun.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support his conviction for two counts of attempted murder. While conceding the Jimenez brothers were standing close together at the time of the shooting, he contends he was not close enough to them to kill them both with a single shot. Therefore, one of the attempted murder counts must be reversed. We find substantial evidence to support the jury's verdict.
With respect to this issue, the Attorney General asks us to presume appellant actually fired two shots at the Jimenez brothers because there were two expended cartridges in his gun. However, the sole eyewitness to the shooting testified she only heard one shot, and the prosecutor argued the case on the theory that only one shot was fired. Under these circumstances, we infer the jury concluded appellant fired a single shot at the victims. (People v. Smith (2005) 37 Cal.4th 733, 740, fn. 2 (Smith).)
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. '"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]"' [Citations.]" (Smith, supra, 37 Cal.4th at pp. 738-739.)
In Smith, the Supreme Court upheld the defendant's conviction for two counts of attempted murder based on his firing a single bullet into a slow moving car. The victims were his ex-girlfriend Karen, who was driving the car, and her baby, who was secured in a car seat directly behind her. Karen's new boyfriend was also on the scene, and in fact, he scuffled with the defendant just before the shooting. From a distance of about 15 feet, the defendant fired from directly behind the car as it was pulling away from the curb. The bullet passed through the rear windshield, narrowly missing both Karen and her baby. (Smith, supra, 37 Cal.4th at pp. 736-737, 742-743.)
Although the defendant conceded he intended to kill Karen, he claimed there was insufficient evidence he intended to kill her baby. However, the Smith court found "his very act of discharging a firearm into the car from close range and narrowly missing both mother and baby could itself support such an inference." (Smith, supra, 37 Cal.4th at p. 744.) In so finding, the court stated that while probative of intent to kill, motive evidence is not required to prove such intent in a particular case. (Id. at p. 741.) Furthermore, "the fact that the victim may have escaped death because of the shooter's poor marksmanship" does not necessarily negate the intent to kill. (Ibid.)
Smith also rejected the notion that firing a single bullet cannot support two counts of attempted murder. Relying on People v. Chinchilla (1997) 52 Cal.App.4th 683 (Chinchilla), Smith observed, "The Chinchilla court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter's line of fire. The court held that 'intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant.' [Citation.]" (Smith, supra, 37 Cal.4th at p. 744.) "[T]hat the defendant in Chinchilla, for whatever reason, fired only a single shot was not dispositive." (Id. at p. 745.)
In Chinchilla, the victims were close enough to the defendant that they could see the muzzle flash of his gun when he fired at them. (Chinchilla, supra, 52 Cal.App.4th at p. 690.) And as explained above, the defendant in Smith was also close to his victims when he shot at them. Appellant contends these cases are distinguishable because their facts showed "it was exceedingly possible a single shot could have struck more than one person." In his view, he was simply too far aware from the Jimenez brothers when he shot at them to create such a possibility.
However, the record shows appellant was standing at the northeast corner of Ross and Washington when he fired his gun. The shot merely had to travel across Washington Street and the length of one house on Ross before reaching the Jimenez brothers location. Thus, there was not a great distance between appellant and the victims. Moreover, appellant could plainly see that the victims were standing very close together; they were no more than a foot apart when appellant shot at them.
In closing argument, the prosecutor estimated the distance to be about 40 yards, and defense counsel did not challenge this estimation.
It is also clear appellant had a strong motive to kill both victims, given they were members of a rival gang. He even cursed aloud after realizing his shot had missed them. And when the police found appellant's gun, it was locked and loaded, indicating he was prepared to fire multiple times had the victims not fled to safety after the initial shot. Based on this evidence, the jury could reasonably infer appellant intended to kill both of the Jimenez brothers, even though he only shot once at them.
In arguing otherwise, appellant draws our attention to People v. Perez (2010) 50 Cal.4th 222. In that case, the defendant was convicted of eight counts of attempted murder for firing a single shot into a group of eight people who were standing together in a dimly lit parking lot. However, while it was undisputed appellant was trying to kill someone in the group, there was no evidence he was trying to kill more than one person. In fact, there was nothing to suggest he knew or targeted any particular person in the group. (Id. at p. 231.) Nor was there any evidence he was prevented from firing additional shots due to circumstances beyond his control. (Ibid.) On these facts, the Supreme Court determined there was insufficient evidence to support a conviction for more than one count of attempted murder. (Ibid.)
Our case is different in that the facts suggest appellant intentionally targeted the Jimenez brothers because they were rival gang members, and he was effectively prevented from firing additional shots due to their flight. Considering appellant's personal animus toward the victims and the totality of the circumstances surrounding the shooting, there is substantial evidence from which the jury could conclude he hoped to kill both.
Failure to Disclose Exculpatory Evidence
Next, appellant contends the prosecutor violated his duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose certain evidence before the trial. We disagree.
The Brady issue surfaced in connection with appellant's motion for a new trial. The motion revealed a police officer spoke to the Jimenez brothers a couple weeks after appellant shot at them, and at that time, they denied being involved in or knowing about the shooting. This conversation occurred during the officer's routine patrol and was unrelated to the formal investigation into the shooting. Thus, the officer did not document the conversation or bring it to anyone's attention. However, following the verdict, a defense investigator spoke with Edgard Jimenez while he was in custody on an unrelated matter, and he divulged the conversation. Defense counsel then inquired of the prosecutor, and after looking into the matter, he confirmed the conversation had occurred.
At the motion hearing, defense counsel argued the prosecution's failure to disclose the conversation to her before trial violated Brady. In so arguing, she pointed out the trial evidence indicated the Jimenez brothers never spoke to the police about the shooting. She posited that if the jury had known they denied being involved in the shooting, it would have undermined the prosecution's theory that they were the victims of a gang-related shooting. However, the court found the brothers' statement to the police was neither credible nor material. Therefore, it rejected appellant's Brady claim and denied his motion for a new trial.
In Brady, the high court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) The court has subsequently made clear "the duty to disclose such evidence is applicable even though there has been no request by the accused," and it "encompasses impeachment evidence as well as exculpatory evidence . . . ." (Strickler v. Greene (1999) 527 U.S. 263, 280.)
However, the prosecutor is not required to conduct defendant's investigation for him. "'Because Brady and its progeny serve "to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery," the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. [Citation.] Consequently, "when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim." [Citations.]'" (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 715-716.)
In this case, defense counsel knew where the Jimenez brothers lived. In fact, the record shows she sent an investigator out to their home to interview them before trial. But when no one answered the door, she decided not to have the investigator sit outside their home or subpoena them to testify at trial, for fear they might incriminate her client. Regardless of her motivation for not doing so, this shows defense counsel had the means to contact the Jimenez brothers and find out what they had previously told the police. Because the defense had access to this information it was not "suppressed" by the prosecution for purposes of the Brady rule. (Jennings v. McDonough (11th Cir. 2007) 490 F.3d 1230, 1238-1239 [there is no Brady violation when the defendant had access to the potential witness and could have talked with the witness himself]; United States v. Wilson (4th Cir. 1990) 901 F.2d 378, 381 [same].)
Nor is that the only problem with appellant's Brady claim. To establish a Brady violation, the defendant must also establish the subject evidence was material. That is, he must show it is reasonably probable, had the evidence been disclosed to him, the result of the proceeding would have been different. (Strickler v. Greene, supra, 527 U.S. at p. 280.) Appellant has not met this burden. He contends the Jimenez brothers' statement to the police was material in two respects. First, it would have created doubt as to whom the true victims of the shooting were. And second, by extension, it would have undermined the prosecution's theory the shooting was gang related. We are not persuaded.
At trial, the facts of the shooting and the identity of the victims were established by one witness, Eloisa Hernandez. She testified she lived within blocks of the shooting, and on the morning in question, she was walking north on Ross Street toward her daughter's apartment. She was right across the street from the Jimenez brothers when she saw appellant pull out his gun and shoot at them. During her testimony, Hernandez did not waiver in her belief the Jimenez brothers were the people whom appellant shot at. She said she saw the brothers standing on the sidewalk outside their home before the shooting, and she saw them run inside a gate, toward their home, after the shooting. And although she did not know the brothers' true names, she did know their nickname, "The Mapillos." She said she had seen them outside their house and around the neighborhood on many occasions, from the time they were children.
Given Hernandez's familiarity with the brothers, and her close proximity to them at the time of the shooting, we do not think the brothers' statement to the police would have impeached her testimony about who the victims were. After all, Hernandez's testimony was reasonable and of solid value, whereas the Jimenez brothers' statement to the police denying any knowledge of the shooting was inherently suspect, due to their gang status and demonstrated hostility toward everyone involved in the criminal justice system. As the expert witness explained, gang members are loath to cooperate with the police, even when they are victims of criminal conduct themselves. Consequently, the jury would have had good reason to view the brothers' statement skeptically.
Considering all the circumstances, we do not believe the statement would have impeached Hernandez or undermined the prosecution's theory of the case. We cannot quarrel with the trial judge's conclusion the statement was not material under Brady. Appellant's motion for a new trial was properly denied.
Sentencing Issues
Lastly, appellant asserts 1) the abstract of judgment must be corrected to properly reflect the trial court's sentencing decision, and 2) the matter must be remanded due to a recent change to the firearm enhancement statute. We find these claims to be well taken.
With respect to the attempted murder counts, the trial court sentenced appellant to life in prison with a minimum parole period of 15 years. (Pen. Code, §§ 664, subd. (a); 187, subd. (a); 186.22, subd. (b)(5).) As to each count, the court added a 20-year firearm-discharge enhancement under section 12022.53, subdivision (c), which was mandatory at that time. But the court struck the firearm-use enhancement under section 12022.5, subdivision (a). On the remaining four counts, the court imposed the mid-term sentence and struck the gang enhancements. It then stayed those counts pursuant to section 654.
All further statutory references are to the Penal Code.
The main issue at the sentencing hearing was whether the court should run the sentences on the attempted murder counts concurrently or consecutively. In arguing for concurrent terms, defense counsel emphasized appellant was only 19 years old when the shooting occurred. She asserted concurrent terms was consistent with the trend toward more lenient treatment for juvenile offenders and young adults. The prosecutor, on the other hand, argued for consecutive terms on the basis appellant was an entrenched gang member with a record of escalating violence, including prior adjudications for assault with a firearm.
The trial judge found appellant had demonstrated he was a danger to society by virtue of his gang involvement, prior criminal activity and his actions in the present case. Indeed, in denying probation, the judge said appellant's juvenile record was one of the worst he had ever seen, "especially between the ages of 15 and 19[,] where he was extremely active with [his] gang, active with violence, threatening [his] step-dad, [and had] all sorts of problems like a runaway train." Nevertheless, the judge did not think appellant was unredeemable. Given that appellant had never been to prison before, the attempted murder counts arose from the same act, and the victims were not injured, the court ordered the counts to run concurrently to each other. Consequently, appellant's aggregate prison term amounted to 15 years to life on the attempted murder counts, plus 20 years for the firearm-discharge enhancements.
A remarkable statement for a judge who has been in the criminal justice system almost 40 years. --------
As a preliminary matter, the parties agree the abstract of judgment is incorrect, in that it shows appellant was sentenced to life without the possibility of parole, when he was actually given a life sentence with a minimum parole period of 15 years. In addition, the abstract fails to reflect the court imposed a court security fee of $40 and a criminal conviction assessment of $30 on each count, not just one count. We will order the trial court to correct those errors on remand.
The reason a remand is required is because effective January 1, 2018, the Legislature amended section 12022.53 to give trial courts the discretion to strike firearm-discharge enhancements in the interest of justice. (§ 12022.53, subd. (h).) The Attorney General concedes this amendment applies retroactively to appellant's case. However, he argues it would be futile to remand the matter given what the court said about appellant at the time of sentencing. We do not see it that way. While the court recognized the seriousness of appellant's past and present actions, it did not throw the book at him. To the contrary, it exercised considerable leniency by running his attempted murder counts concurrently to each other. Given this decision, and considering appellant was only 19 years old when he committed the present crimes, we do not believe it is a foregone conclusion that the trial court would refuse to strike his gun enhancements in the interest of justice. We thus grant appellant's request for a remand. (People v. Chavez (2018) 21 Cal.App.5th 971 [despite the defendant's grave criminal record, remand required for trial court to exercise its section 12022.53, subd. (h) discretion since it did not impose the maximum sentence available at the original sentencing hearing]
DISPOSITION
The judgment is affirmed and the matter is remanded to permit the trial court to decide whether it wishes to strike appellant's firearm-discharge enhancements in the interest of justice. On remand, the court shall also correct the abstract of judgment to reflect its sentencing decision with respect to the attempted murder counts, the court security fee, and the criminal conviction assessment.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. FYBEL, J.