Opinion
E067073
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. WALTER CUEVAS GASTELUM, Defendant and Appellant.
Ronda G. Norris, 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 Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF047843) OPINION APPEAL from the Superior Court of Riverside County. Victoria E. Cameron, Judge. Affirmed with directions. Ronda G. Norris, 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 Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Walter Cuevas Gastelum is serving 50 years to life for using a shotgun to murder a housemate in 2004. Defendant argues: (1) his first degree murder conviction should be reduced to second degree murder because the People presented insufficient evidence of premeditation and deliberation; and (2) the recently enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) requires the matter to be remanded to the trial court to exercise its discretion as to whether to strike the firearm enhancement. As discussed post, we affirm the first degree murder conviction but remand to the trial court with instructions to hold a hearing to comply with Senate Bill No. 620.
FACTS AND PROCEDURE
On April 12, 2004, law enforcement officers were called to a home in Coachella owned by defendant's uncle, known as "Chon." The victim, Manuel Ley, was lying on his back in a pool of dried blood on the floor near the kitchen. Ley had been dead since the previous day, Easter Sunday. The cause of death was two large shotgun wounds to the torso.
A search of defendant's room found items including a 25-capacity box of Winchester .12-gauge shotgun shells with 11 shells remaining, and a plastic baggie containing a white powdery substance that could have been either methamphetamine or cocaine. Ley had a steak knife with a four-inch blade tucked into his waistband.
"Chon," rented the five-bedroom home and then rented out the bedrooms and garage to about 10 people besides himself, including Ley. Defendant moved into the home one or two weeks before the shooting, after spending a week living with his aunt Elisa at her apartment in Thermal. Defendant lived in a makeshift room he had built in the house himself, and Ley slept in the living room.
About a week after he moved in, defendant became angry because he believed Ley had tried to break into his room. He told Chon that the door to his room looked like it had been tampered with. Defendant was upset. Two or three days before the shooting, defendant brought a short, one-barreled shotgun into the home. He told Chon that it was for "respect" purposes and "for protection there in his room." Chon saw defendant with the shotgun on several occasions. Defendant would go out into the backyard and practice firing the gun.
On the day of the shooting, or possibly the day before, Chon saw defendant and Ley talking and looking at the door to defendant's room. It appeared to Chon that defendant was confronting Ley about having entered his room without permission. Chon was concerned enough that he twice warned Ley to be careful of defendant, telling Ley something like, "he needed to just calm down, not to look for any trouble, not to mess around with [defendant]," to "be careful" and to "behave" "so that they wouldn't have any problems." When Chon and others left to go to a casino on the afternoon of the shooting, defendant had already left the house and Ley was the only one home.
One of the housemates and a friend returned that day around 6:00 p.m. and found Ley lying on the floor in a pool of blood. The two men left immediately and went to a different casino. The two men told Chon that Ley had been shot. Chon did not call 911 or return to the home for three or four days, "because [he] was afraid."
Defendant's aunt Elisa told an investigator that one day in the spring of 2004, defendant showed up outside her home. He appeared to be agitated, nervous, and desperate. He repeatedly asked for a ride or to borrow a vehicle. Defendant said he had killed someone at Chon's house and needed a car. Elisa noticed red stains on defendant's pants and shoes. Elisa went inside. Elisa's boyfriend owned a gold Lincoln Continental Town Car, which was parked near her home. Defendant apparently went into the home and took the keys from on top of the television. Defendant did not have permission to borrow the car. Later that day, Elisa's boyfriend reported the car stolen. On May 19, 2004, the car was found in Mexico at the home of defendant's parents. A warrant was issued for defendant's arrest.
Defendant never returned to Chon's house to pick up his belongings. In the years between the shooting and defendant's arrest in 2014, Chon had seen defendant in the family's hometown in Mexico at least twice, possibly in 2008 or 2009. Defendant told Chon that he should thank defendant because he had "taken care of him" (not naming Ley) and that he believed Ley had been taking advantage of Chon.
On November 13, 2014, the People filed an information charging defendant with first degree murder (Pen. Code, § 187, subd. (a)) and alleging defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and personally discharged a firearm causing death or great bodily injury to a person not an accomplice. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).)
Section references are to the Penal Code except where otherwise indicated. --------
On September 13, 2016, a jury convicted defendant of first degree murder and found true the firearm enhancements.
On October 21, 2016, the court sentenced defendant to 50 years to life as follows: 25 years to life for the murder; a consecutive term of 25 years to life for discharging a firearm causing death; and four years for personally using a firearm, which was stayed pursuant to section 654.
This appeal followed.
While this appeal was pending, defendant filed a motion to file a supplemental brief to address the impact of Senate Bill No. 620, which became effective January 1, 2018. This court granted the request, and both parties filed supplemental briefs addressing whether the amended section 12022.53, subdivision (h), applies retroactively to defendant.
DISCUSSION
1. Substantial Evidence of Premeditation and Deliberation
Defendant argues the People introduced insufficient evidence to support the first degree murder conviction and that the conviction should be reduced to second degree murder.
Defendant carries a heavy burden. "Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases . . .where the People rely primarily on circumstantial evidence." (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder." (Id. at p. 1127.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187.) To prove one variety of first degree murder, the prosecution must show a willful, deliberate and premeditated killing. If it fails to do so, the murder is a second degree murder. (§ 189.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the Supreme Court set forth factors that subsequent courts have described as a useful "framework" for analyzing the sufficiency of circumstantial evidence to support a jury finding of premeditation and deliberation. (See People v. Perez, supra, 2 Cal.4th at p. 1125.) Those factors include: (1) evidence of prior planning or preparation to carry out the killing; (2) evidence of motive; and (3) evidence of the circumstances and manner of the killing. (Anderson, at pp. 26-27.)
Here, as to planning, we look to what defendant did prior to the actual killing, which shows he was engaged in activity directed toward the killing of Ley. (Anderson, supra, 70 Cal.2d at p. 31.) After defendant became angry at Ley for breaking into his room, defendant brought a shotgun into the house just a few days before the shooting. He told Chon that the shotgun was for "respect" purposes and for protection in his room. Further, defendant was seen carrying the shotgun and on several occasions he took it into the backyard to practice firing it. This is substantial evidence of planning, in that: (1) defendant acquired the shotgun a full two to three days before he used it to shoot Ley; (2) in apparent reaction to Ley having broken into his room; (3) for the stated purpose of "respect" and protecting his room; and (4) defendant spent time in the backyard either learning to use the shotgun or perfecting his aim.
Defendant also had an obvious motive to kill Ley. Motive involves facts about the defendant's relationship with Ley from which the jury could reasonably infer he had a motive to kill him. (Anderson, supra, 70 Cal.2d at p. 27.) The jury heard testimony that defendant believed Ley had broken into his room and that he was angry about it. Defendant confronted Ley either the morning of or the day before the shooting in such a manner that defendant's uncle Chon was concerned enough to warn Ley to be careful and not mess around with defendant. In addition, there was evidence to support the reasonable conclusion that defendant's motive and anger toward Ley were amplified by the fact that defendant kept narcotics, either cocaine or methamphetamine, in his room, whether for personal use or for sale.
The manner of the killing shows premeditation and deliberation. This inquiry involves the examination of the nature of the killing from which the jury could infer that the manner of the killing was so particular and exacting that the defendant must have intentionally killed according to a " 'preconceived design' " to take Ley's life. (Anderson, supra, 70 Cal.2d at p. 27.) First, defendant left the crowded house on Easter Sunday and came back only when the victim was alone. This indicates he did not shoot Ley in a fit of anger, but rather held onto his anger—and his shotgun—for several days until he could find an opportunity to be alone with Ley so there would be no witnesses to the murder. Second, defendant shot Ley in the abdomen with a shotgun causing two large wounds, rather than in an extremity with a weapon using smaller ammunition, indicating he intended to end Ley's life, not just injure or scare him. Third, the fact that defendant left the home and then the country after shooting Ley, rather than attempting to get him medical help, supports the jury's conclusion that he committed the murder with premeditation and deliberation, and wanted him to die. Fourth, defendant's cavalier statement to Chon in Mexico years after the shooting that he had "taken care of" Ley and that Chon should be grateful, is an indication that the shooting was not a product of a rash act, but rather something that defendant "took care of," for both himself and his uncle. The jury could reasonably conclude that defendant had no regard for Ley's life, either before, during, or after the shooting, and took it after premeditation and deliberation.
The above evidence amply supports the jury finding that defendant acted with premeditation and deliberation.
2. Senate Bill No. 620
Defendant argues, the People concede, and this court agrees, that this case should be remanded to the trial court so it can exercise its discretion regarding whether to strike the section 12022.53, subdivision (d) firearm enhancement.
On January 1, 2018, after all briefing had been filed in this matter, Senate Bill No. 620 became effective. This legislation ended the statutory prohibition on a court's ability to strike a section 12022.5 or 12022.53 firearm enhancement. Section 12022.53, subdivision (h), has been amended to allow a court to exercise its discretion under section 1385 to strike or dismiss an enhancement under section 12022.53 at the time of sentencing or resentencing as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Senate Bill No. 620 should be interpreted to apply retroactively to all cases not yet final on its effective date. Because this case had been fully briefed and submitted, but the final opinion had not yet been issued on January 1, 2018, this appeal was not final when Senate Bill No. 620 went into effect. (People v. Vieira (2005) 35 Cal.4th 264, 305-306 [A judgment is final for retroactivity purposes when all direct appeals have been exhausted and a petition for writ of certiorari in the United States Supreme Court has been denied or the time for filing such a petition has been exhausted.].)
Under In re Estrada (1965) 63 Cal.2d 740, 742, a court must assume, absent evidence to the contrary, that when legislation reduces punishment for a particular offense, the Legislature intended the legislation to apply to all defendants whose judgments are not yet final on the statute's operative date. Under People v. Francis (1969) 71 Cal.2d 66, 76-77, the possibility of an alternative or lesser punishment to be imposed in the sentencing court's discretion triggers the Estrada rule and requires remand to the sentencing court for reconsideration of the sentence. We therefore remand the matter for the trial court to consider striking the section 12022.53, subdivision (d), enhancement pursuant to sections 1385 and 12022.53, subdivision (h).
DISPOSITION
The matter is remanded for a new sentencing hearing so the trial court can exercise the discretion set forth in the newly enacted section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. FIELDS
J.