Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF190158A. Gary L. Paden, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
John Fernandez and Brandon Florez were both active gang members. On August 17, 2007, Fernandez attacked 16-year-old D.S., who was mistakenly believed to be a member of a rival gang. Florez arrived, pulled out a handgun, and fired several shots at the victim. One of the bullets penetrated the victim’s heart and killed him. Florez and Fernandez fled together.
Florez and Fernandez were jointly charged with first degree murder and a street gang special circumstance was alleged. Various gang and firearm enhancements were also alleged. A prior strike was alleged against Florez. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22), 186.22, subds. (b)(1)(C) & (b)(5), 12022.53, subds. (d) & (e), 667, subds. (c)-(j), 1170.12, subds. (a)-(e).)
Unless otherwise specified all statutory references are to the Penal Code.
Fernandez filed a severance motion, which was denied.
Jury trial was held. Florez and Fernandez were both found guilty of first degree murder; the jury found the special circumstance and all of the enhancement allegations to be true. The court found the prior strike allegation to be true.
Florez was sentenced to life imprisonment without the possibility of parole plus a consecutive term of 35-years-to-life imprisonment, calculated as follows: 25 years to life pursuant to section 12022.53, subdivision (d), plus 10 years pursuant to section 186.22, subdivision (b)(1)(C). Fernandez was sentenced to life imprisonment without the possibility of parole.
Florez contends CALCRIM No. 359 reduced the People’s burden of proof on the issue of identity. We are not persuaded. He also argues the 10-year term imposed pursuant to section 186.22, subdivision (b)(1)(C), must be stayed or stricken. Respondent concedes that this term must be stricken and we accept this concession as properly made. We will modify the judgment to strike the 10-year term and, as modified, affirm.
Florez and Fernandez separately appealed. They raised different issues and did not join in each other’s claims.
FACTS
In August 2007, Florez and Fernandez were active members of North Side Visa (NSV), which is a subset of the Norteno street gang. Florez and Fernandez were arrested together in June 2007. Florez was known by members of the community to habitually carry a gun. A gang expert testified “escalation of force” from a fist fight to an altercation involving a knife or gun was “on the rise” among Nortenos in the past few years. Many incidents start out with fist fighting but if one of the parties has a weapon, “more times than not … it seems that the weapon is now being used.”
Oriental Troop (OT) was a subset of the Sureno street gang. NSV and OT are rivals. Members of NSV were Hispanic; members of OT were Asian. West Houston Avenue in Visalia was a dividing line between the two gangs’ territories. A gang expert testified OT “has a general history of not getting along with Nortenos and there have been shootings and altercations” including the shooting death of Robert Trevino, who was a Norteno, by Cha Wasee, who was an OT.
Around 7:45 p.m. on the evening of August 17, 2007, the victim and his cousin were walking toward West Houston Avenue. The victim was Asian. Fernandez’s 15-year-old brother and a 13-year old boy were riding together on a single bicycle. They approached the victim. One of the boys announced, “North Side Visa” and challenged the victim by saying, “Do you have something to say to us[?]” The victim “said that he doesn’t bang.” The boys said, “[T]hat’s him,” and left. The victim and his cousin continued walking.
Moments later, Fernandez arrived on a bicycle. Without saying a word, he got off the bicycle and attacked the victim with his fists. The victim ducked to avoid the blows and fell to his knees. Fernandez continued to punch him.
Fernandez’s brother and the 13-year-old boy returned on a single bicycle; Florez was perched on the bicycle’s handlebars.
The victim’s cousin testified neither Florez nor the younger boys joined in the beating. The victim struggled away from Fernandez and started to run away. The person on the handlebars, who was wearing a white shirt, jumped off, pulled out a small, black gun and fired at the victim. The victim continued running. The shooter fired several more shots at the victim. Fernandez was standing by the shooter. Neither Fernandez nor either of the younger boys was the shooter.
The victim collapsed onto the sidewalk and died a short time later. A bullet had entered the front of the victim’s chest and traveled downward through his heart and left lung.
Fernandez and Florez fled together on one of the bicycles. The two younger boys left together on the other bicycle.
The victim was attacked in front of a house where R.S. and her adult daughter lived. Florez lived two doors away from them. R.S. told a police officer that Florez grabbed the victim into a headlock and started beating him on the head. Then Florez pulled out a gun and fired three shots at the victim. The victim was facing Florez when the first shot was fired.
R.S.’s daughter told a police officer that she saw Florez and Fernandez beat up the victim. She went outside and told Florez “to knock it off.” Then she went inside her residence. She heard about five gunshots. She told the officer that she did not see the shooting and “would not” identify the shooter.
N.J. was using a pay phone when she heard a fight and turned toward the scene. Someone said, “North Side Visa.” She saw a person hit the victim. Then a different person jumped off the handlebars of a bicycle, pulled out a gun and fired at the victim. The shooter was facing the victim when he fired the first shot. The victim turned and fled. The shooter fired a few more shots at the victim. N.J. testified the shooter was shorter than the person who hit the victim. Booking information reflected that Florez was five feet, three inches tall and Fernandez was five feet, eight inches tall. A police officer testified N.J. told him the shooter was wearing a white shirt and blue jeans. Jones testified the shooter wore a striped shirt but, at one point, acknowledged that if she told a police officer that the shooter was wearing a white shirt, this would be “fine with [her]” because “as of right now everything just seems like a blur because so many things were happening at that time.” Five other witnesses testified Florez was wearing a white shirt and three witnesses testified Fernandez was wearing a striped shirt.
L.V., who is the mother of Florez’s child, was outside with her mother, her child and her friend, K.J., around the time of the attack. K.J. told a police officer that Fernandez bicycled past them. K.J., L.V. and L.V.’s mother told an officer that Florez and two other boys, all of whom were on a single bicycle, rode past them; Florez was perched on the handlebars. As Florez passed, K.J. made “fun of him because he wasn’t there for the baby.” Florez did not pay attention to them. A short while later, they heard several gunshots and went inside the house. K.J. looked out a window and saw the two younger boys pass by on a bicycle. K.J. told a police officer that she also saw Florez and Fernandez pass by on another bicycle. Fernandez was pedaling and Florez was perched on the handlebars. K.J. also told a police officer that “[Florez] and them didn’t like the Asians because they were killing everybody or shooting everybody.” K.J. testified that at the time the victim was killed she didn’t think “anybody” liked Asians, “including myself, because of what happened to Robert Trevino.”
About five or 10 minutes after the shooting Isaac Hinojos, who lived across the street from R.S. and her daughter, walked across the street with a cell phone in his hand. He handed the cell phone to R.S.’s daughter. Florez was on the line. Florez said “something to the effect of he knows that they saw what happened, and if they said anything, that the same thing would happen to them.” A gang expert testified Hinojos was a NSV member.
Both R.S. and her daughter were scared for their safety and the safety of their families. When R.S. was served with a trial subpoena she told the process server that she would not tell the truth and would deny her previous statements if she was forced to testify. She was afraid that Florez or his friends would conduct a drive-by shooting at her house if she testified truthfully.
Fernandez was arrested four days after the murder. The police had to insert a teargas-type substance into the attic where he was hiding before he would surrender.
Florez was arrested three months later. An officer attempted to stop him for a traffic violation but he sped away and then got out of the car and fled on foot. He was found hiding in another attic.
A gang expert opined the shooting was for the benefit of and in association with NSV because it demonstrated to the community that NSV members would respond forcefully to intrusions into NSV territory by any person who was believed to be a rival gang member.
Neither Florez nor Fernandez called any defense witnesses.
DISCUSSION
I. CALCRIM No. 359 did not reduce the People’s burden of proof.
The People requested CALCRIM No. 358. The court agreed that this instruction was warranted and, on its own motion, the court also gave CALCRIM No. 359. Isolating the sentence, “The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statement alone,” from the rest of CALCRIM No. 359, Florez argues the instruction improperly reduced the burden of proof on the issue of identity. Respondent disagrees. We conclude that CALCRIM No. 359 properly restates the corpus delicti rule and does not lessen the People’s burden of proof.
CALCRIM No. 359, as given, provides:
Neither defendant objected to use of CALJIC No. 359. Respondent contends the point was forfeited by Florez’s failure to object and request clarifying language during trial. (People v. Johnson (1993) 6 Cal.4th 1, 53; People v. Daya (1994) 29 Cal.App.4th 697, 714.) We have assumed without deciding that the issue was not forfeited.
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We evaluate whether an instruction is misleading by reviewing the jury charge as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) Instructions are not considered in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.”’ [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]” (People v. Campos, supra, 156 Cal.App.4th at p. 1237.)
It has already been determined that CALCRIM No. 359 correctly expresses the corpus delicti rule. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) Under this rule, “every conviction must be supported by some proof of the corpus delicti aside from or in addition to [defendant’s extrajudicial] statements, and … the jury must be so instructed.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The purpose of this rule is “to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (Id. at p. 1169.) “There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Id. at p. 1171.)
CALCRIM No. 359 accurately informs the jury that it must take a preliminary, cautionary step before considering whether the prosecution has proven guilt beyond a reasonable doubt. If the necessary quantum of independent evidence is present, then the defendant’s extrajudicial statements can be considered for their full value on all issues. Such extra-judicial statements may be sufficiently persuasive to prove the identity of the perpetrator beyond a reasonable doubt. However, it cannot convict the defendant unless the People have proven his guilt beyond a reasonable doubt.
We discern no error in CALCRIM No. 359’s statement that the identity of the perpetrator may be proved by extrajudicial statements alone. This sentence did not reduce the People’s burden of proof on identity to less than guilt beyond a reasonable doubt. It merely constitutes a statement that the corpus delicti rule does not preclude reliance on the defendant’s out-of-court statements to prove identity beyond a reasonable doubt. Additionally, the court instructed with CALCRIM No. 220. CALCRIM No. 220 defines reasonable doubt, informs the jury that it must consider all the evidence and instructs that the jury that the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a reasonable doubt.
We conclude that Florez’s challenge fails because reasonable jurors would have understood from the entirety of the jury charge that the People were required to prove identity beyond a reasonable doubt after examination of all of the evidence. CALCRIM No. 359 was not misleading and it did not reduce the People’s burden of proof on identity. It is not likely that the jury understood CALCRIM No. 359 in a manner that violated Florez’s right to due process.
II. The 10-year term must be stricken.
The court sentenced Florez to life in prison without the possibility of parole. (§ 190.2, subd. (a).) It also sentenced him to an additional 35 years imprisonment. Of relevance here is the enhancement pursuant to section 186.22, subdivision (b)(1)(C), for which the court imposed a 10-year term. Appellant argues this term must either be stayed or stricken because he cannot be punished under both this section and section 190.2, subdivision (a). Respondent concedes that the 10-year enhancement is inapplicable and must be stricken. We accept respondent’s concession as properly made. The determinate term enhancements provided in section 186.22, subdivision (b)(1), do not apply when the crime at issue is punishable by life imprisonment. (People v. Lopez (1005) 34 Cal.4th 1002, 1004.) There is no exception in the language of the statute for individuals who have been sentenced to life in prison without the possibility of parole. The 10-year term will be stricken. (Id. at p. 1011.) This result has no practical effect on Florez’s sentence, as he is ineligible for parole.
DISPOSITION
The 10-year term imposed pursuant to section 186.22, subdivision (b)(1)(C), is stricken. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification and to transmit it to appropriate authorities.
WE CONCUR: Ardaiz, P.J., Gomes, J.
“A defendant may not be convicted of any crime based upon his out of court statement alone. You may only rely on a defendant’s out of court statement to convict him if you conclude that other evidence shows that the charged crime was committed. The other evidence may be slight and need only be enough to support a reasonable inference that the crime was committed.
“The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statement alone.
“You may not convict a defendant unless the People have proved his guilt beyond a reasonable doubt.”