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People v. Gomez

California Court of Appeals, Second District, Second Division
Apr 27, 2009
No. B206572 (Cal. Ct. App. Apr. 27, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA319190. George G. Lomeli, Judge. Affirmed as modified.

Alan Siraco, 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, Assistant Attorney General, Victoria B. Wilson and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.


BOREN, P. J.

Appellant Miguel A. Gomez appeals from a judgment entered after a jury returned a verdict finding him guilty of count 3, attempted murder of Douglas Cornejo (Cornejo) in violation of Penal Code sections 664 and 187, subdivision (a), and count 5, second degree robbery in violation of section 211. Appellant was found not guilty of count 4, attempted willful deliberate, premeditated murder of Angel Samaniego (Samaniego).

All further statutory references are to the Penal Code unless otherwise indicated.

Appellant was found not guilty of count 1 attempted willful, deliberate, premeditated murder of Eliseo Magana (Eliseo) and count 2, attempted willful deliberate, premeditated murder of Veronica Magana (Veronica) arising out of an incident on October 8, 2006 where appellant fired three or four gunshots at Eliseo’s car, hitting the car and Veronica.

The jury found true as to counts 3 and 5 that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(c); and that appellant was a minor who was at least 16 years old at the time of the commission of the crimes pursuant to Welfare and Institutions Code section 707. As to count 3, the jury found true that appellant personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) and that appellant personally and intentionally used and discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). The jury found not true the allegation as to count 3 that the crime was willful, deliberate and premeditated.

Appellant was sentenced to state prison for 46 years and four months consisting of the following: as to count 3, appellant was sentenced to the midterm of seven years for the attempted murder (§§ 664, 187, subd. (a)), plus an additional 10 years pursuant to the gang enhancement (§ 186.22, subd. (b)(1)(c)), and an additional 25 years to life pursuant to the gun enhancement (§ 12022.53, subd. (d)); as to count 5, appellant was sentenced to one year (one-third the midterm) for second degree robbery (§ 211) plus three years and four months (one-third the midterm) pursuant to the gang enhancement. (§ 186.22, subd. (b)(1)(c).) The trial court struck the three year term for the section 12022.7, subdivision (a) great bodily injury enhancement pursuant to section 654.

CONTENTIONS

Appellant contends that: (1) the trial court improperly limited defense counsel’s cross-examination of the investigating officer regarding inconsistent statements made by Edwin M. to the police; (2) insufficient evidence supported appellant’s intent to kill; and (3) appellant was entitled to an additional day of presentence custody credit.

FACTS AND PROCEDURAL HISTORY

On October 10, 2006, appellant and Steven Chavez (Chavez) confronted Angel Samaniego and Cornejo, staring them down and asking where they were from. Samaniego and Cornejo replied “nowhere.” Cornejo knew Chavez from a quinceañera. Samaniego knew Chavez from middle school. Chavez took a dollar from Cornejo’s pocket, while appellant stood by holding his waistband. As Samaniego and Cornejo walked away, appellant and Chavez yelled obscenities at them. When Cornejo replied in kind, appellant and Chavez asked if Samaniego and Cornejo wanted to fight. Appellant then lifted his shirt to reveal a gun. As Samaniego and Cornejo walked away, Cornejo joked to Samaniego that he would have to ask four ladies for a quarter to replace his dollar, and the two began laughing. Appellant then began shooting at them from about 15 feet away. Samaniego and Cornejo ran, and appellant’s third shot struck Cornejo in the right leg, causing ‘unbearable pain.” Appellant and Chavez then fled.

Two neighbors, who knew appellant and his family, saw appellant shoot Cornejo. One identified him to police and at trial. The other identified appellant as the shooter to police, but changed her testimony at trial to state that she did not see the shooter. Edwin M., who was 13 years old at the time of trial, testified that he had been visiting appellant with Chavez and was outside appellant’s apartment when he saw appellant shoot Cornejo after an exchange of obscenities. Then appellant, Chavez, and Edwin M. went into the apartment. Appellant took a shower while appellant’s mother cleaned the gun. Edwin M. testified that appellant gave him the gun and told him to hide it at his house. On cross-examination, Edwin M. stated that Chavez had handed the gun to Edwin M. through appellant’s window. After re-cross and redirect, the trial court excused Edwin M.

After Edwin M. was excused, Los Angeles Police Department Officer Rick Huerta testified that he apprehended Edwin M. as he was leaving appellant’s house with a loaded semiautomatic handgun. Officer Huerta did not interview Edwin M. and did not remember if he made any statements. Shell casings found at the crime scene came from the gun Edwin M. was carrying.

Subsequently, Los Angeles Police Department Detective Gustavo Barrientos testified on cross-examination that he was familiar with the statements that Edwin M. gave. Defense counsel then asked Detective Barrientos if Edwin M. had stated on three different occasions that three different people, including appellant, appellant’s mother, and Chavez, had handed him the gun. The trial court sustained the People’s hearsay objection. Defense counsel then asked Detective Barrientos how Edwin M. came to possess the gun. The trial court again sustained the People’s hearsay and foundation objection. Defense counsel stated: “This is a business record, the police report. I don’t want to argue it, but okay” and proceeded to finish his cross-examination.

Los Angeles Police Department Officer Larry Oliande, a gang expert, testified that appellant and Chavez were members of the Breed Street Gang and that the shooting occurred in Breed Street gang territory. Officer Oliande opined that gangs thrive on respect and fear, and that the question “Where are you from,” indicates that the questioner has already concluded that the person is a gang member. He also opined that Samaniego and Cornejo’s laughter would be taken as a sign of disrespect and that the shooting was committed for the benefit of the Breed Street gang.

DISCUSSION

I. The trial court properly excluded the alleged inconsistent statement as hearsay

Appellant contends that the trial court improperly sustained the People’s hearsay objection when defense counsel attempted to cross-examine Detective Barrientos regarding alleged inconsistent statements made by Edwin M. to the police. He claims that the statements were admissible under Evidence Code section 770 and that the exclusion of the testimony violated his right to confrontation, cross-examination, due process and a fair trial. We disagree.

We first find that the trial court did not err in excluding the testimony under Evidence Code section 770. The trial court’s rulings regarding admissibility of evidence are reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Hearsay evidence is evidence of a statement made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).) However, if each level of hearsay within a statement meets the requirements of an exception to the hearsay rule, the statement is admissible. (Evid. Code, § 1201.)

A witness’s prior inconsistent statement is admissible not only to impeach his credibility, but also to prove the truth of the matter asserted. (Evid. Code, § 1235.) But, evidence admitted pursuant to Evidence Code section 1235 must meet the foundational requirements of Evidence Code section 770 which states: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action.”

The record shows that after the People objected on grounds of hearsay and lack of foundation to defense counsel’s question to Detective Barrientos regarding Edwin M.’s statements, defense counsel stated that the matter was admissible as a business record, but he did not want to argue about it, thus appearing to concede the issue. The record also reveals that Detective Barrientos’s testimony was inadmissible as to Edwin M.’s inconsistent statements because the foundational requirements of Evidence Code section 770 had not been met. That is, pursuant to Evidence Code section 770, Edwin M. was required to have been examined as to his inconsistent statements while testifying so that he could explain or deny the statements given to the police. He was not. Rather, after the People elicited a response from Edwin M. that appellant handed him the gun, defense counsel asked Edwin M. the name of the person who gave him the gun. Edwin M. stated that Chavez had handed him the gun. Defense counsel did not question Edwin M. about his prior inconsistent statements to the police. Therefore, despite appellant’s representation in his brief that Edwin M. “was given an opportunity to explain discrepancies between his testimony and statements to the police,” he was only questioned about who gave him the gun and he was not questioned regarding his statements to police.

And, the record does not show that Edwin had not been excused from giving further testimony in the action as required under Evidence Code section 770. That is, the trial court excused Edwin at the end of the questioning without any mention of his availability for recall. Accordingly, the foundational requirements for admissibility under Evidence Code section 770 were not met. Moreover, the record gives no indication to whom the alleged statements by Edwin were made, giving rise to the possibility of multiple levels of hearsay. Nor was there any foundational evidence that the statements satisfied the requirements of the business records exception to the hearsay rule.

We next find that because the evidence was not improperly excluded, appellant’s further contention that the trial court improperly infringed on his right to confrontation by limiting defense counsel’s cross-examination of Detective Barrientos is not well taken. As appellant concedes, the trial court retains wide latitude to impose reasonable limits on cross-examination within the context of the confrontation clause based on concerns of harassment, prejudice, confusion of issues, or interrogation that is repetitive or only marginally relevant. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; Crawford v. Washington (2004) 541 U.S. 36, 60-62; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1221 [admission of testimonial evidence from a witness who does not testify violates the confrontation clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine].)

Here, as previously noted, the evidence was not improperly excluded. Edwin M. was available for cross-examination at trial. Thus, appellant’s rights under the confrontation clause were not violated because he had the opportunity to cross-examine him as to his testimonial statements. Instead, defense counsel chose to cross-examine Detective Barrientos about Edwin M.’s testimonial statements. We find that the trial court’s limitations on defense counsel’s cross-examination of Detective Barrientos were reasonably calculated to preclude testimony that defense counsel could have elicited from Edwin M. Indeed, Edwin M. testified on direct examination that appellant had handed him the gun, but on cross-examination he testified that Chavez had handed him the gun. Thus, if defense counsel’s purpose was to impugn Edwin M.’s credibility through inconsistent testimony, he succeeded.

In any event, any error was harmless because it is not reasonably likely that appellant would have received a more favorable verdict had the challenged evidence reached the jury. (People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant’s complaint that any error was not harmless because the jury attributed much weight to Edwin M.’s identification of appellant as the shooter because he knew appellant, fails. The evidence of appellant’s guilt as to counts 3 and 5 was overwhelming. Cornejo, Samaniego, two witnesses from the neighborhood, and Edwin M. identified him as the shooter to police or at trial. Regardless of who handed him the gun, Edwin M. was caught fleeing from appellant’s apartment with a loaded gun that matched bullet casings recovered from the crime scene. And, as previously noted, defense counsel was able to elicit from Edwin M. inconsistent testimony regarding who handed Edwin M. the gun on cross-examination.

We conclude that the trial court’s limitation on defense counsel’s cross-examination of Officer Barrientos did not violate appellant’s right to confrontation and cross-examination.

II. Substantial evidence of appellant’s intent to kill supported his conviction for attempted murder

Appellant contends that the evidence was insufficient to show appellant harbored a specific intent to kill because there is no evidence that appellant aimed at Cornejo, the jury found that appellant had not premeditated the shooting, and the confrontation leading up to the shooting did not indicate an intent to kill. Rather, he contends that the evidence only permits an inference that appellant intended to intimidate Cornejo from coming into Breed Street gang territory. We disagree.

“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole 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—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶]... But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We do not reweigh the evidence; even if the circumstances “might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 529.)

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Smith (2005) 37 Cal.4th 733, 739.) Evidence of motive is not required to establish an intent to kill, but is probative of intent to kill. (Id. at pp. 740-741.) The mental state required to convict a defendant of attempted murder may be inferred from the defendant’s acts and circumstances of the crime because there is rarely direct evidence of the defendant’s intent. (Id. at p. 741.) That is, the act of firing toward the victim at a close, but not point blank range in a manner that could have inflicted a mortal wound had it hit its target, is sufficient to support an inference of intent to kill. (Ibid.) Even if the shooting is not premeditated, the shooter’s purposeful use of a lethal weapon in which lethal force is used will give rise to an inference of intent to kill. (Ibid.)

Appellant urges that there was insufficient evidence of appellant’s specific intent to kill because there was no evidence that appellant specifically took aim at Cornejo, but only intended to intimidate him. He also urges that the evidence was insufficient because the jury found that appellant had not premeditated the shooting. We disagree and conclude that applying the above cited principles, there was substantial evidence of appellant’s intent to kill supporting his conviction for attempted murder. As appellant concedes, one possible motive for the shooting is that he wanted to assert control over Breed Street gang territory. Accordingly, appellant and Chavez challenged Samaniego and Cornejo, asking what gang they were from, and stealing a dollar from Cornejo. Cornejo exchanged obscenities with appellant and Chavez. As Cornejo and Samaniego walked away, they laughed, an act described by Officer Oliande as a mark of disrespect to the Breed Street gang. The evidence thus supports the inference that appellant shot at and attempted to kill Cornejo, who had cursed at him, in order to build his reputation within the gang. Moreover, the record shows that appellant shot three times at Cornejo from a distance of 15 feet away, and it is only by fortuity that Cornejo was not mortally wounded. “‘“... [T]he fact that the victim may have escaped death because of the shooter’s poor marksmanship [does not] necessarily establish a less culpable state of mind.”’” (People v. Smith, supra, 37 Cal.4th at p. 741.)

We conclude that sufficient evidence supported the jury’s finding that appellant harbored the specific intent to kill Cornejo.

III. Appellant was entitled to presentence custody credit for 466 actual days served

Appellant contends, and the People concede, that the judgment must be modified to reflect an additional day of presentence custody credit.

Defendants committed to state prison are entitled to full credit for each partial day served, including the day of arrest and the day the defendant is committed. (§ 2900, subd. (c); People v. Smith (1989) 211 Cal.App.3d 523, 526.)

Appellant was arrested on October 10, 2006, and was sentenced on January 18, 2008. Therefore, appellant was entitled to 466 days of actual custody credit, rather than 465 days of actual custody credit as calculated by the trial court.

DISPOSITION

The judgment is modified to reflect actual custody credit of 466 days. The trial court is ordered to send a certified copy of a corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: DOI TODD, J. ASHMANN-GERST, J.


Summaries of

People v. Gomez

California Court of Appeals, Second District, Second Division
Apr 27, 2009
No. B206572 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Gomez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MIGUEL A. GOMEZ, Defendant and…

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

Date published: Apr 27, 2009

Citations

No. B206572 (Cal. Ct. App. Apr. 27, 2009)