Opinion
D058023 Super. Ct. No. SCS232378
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN FRANCISCO GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed in part, reversed in part, and remanded.
INTRODUCTION
A jury convicted Juan Francisco Gonzalez of the first degree murder of George Castaneda (Pen. Code, § 187, subd. (a); count 1), and of assaulting Carlos Paniagua with a deadly weapon (§ 245, subd. (a)(1); count 2). As to count 1, the jury found true allegations Gonzalez personally used a firearm (§ 12022.5, subd. (a)), he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). As to both counts, the jury also found true allegations Gonzalez committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Gonzalez admitted he had a prior prison conviction (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Further statutory references are also to the Penal Code unless otherwise stated.
The trial court sentenced Gonzalez to an aggregate term of 75 years to life plus 20 years in state prison. The sentence for count 1 included a term of 25 years to life for first degree murder, doubled to 50 years to life under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), plus a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and a consecutive 10-year term for the criminal street gang benefit enhancement under section 186.22, subdivision (b)(1). The sentence for count 2 included a two-year term for assault with a deadly weapon (one-third the middle term of three years doubled for the prior strike conviction), plus three years for the criminal street gang benefit enhancement under 186.22, subdivision (b)(1), plus five years for the serious felony prior conviction. The trial court stayed or struck the sentences for the remaining enhancements, as appropriate.
Gonzalez appeals, contending the trial court abused its discretion and deprived him of his constitutional rights to due process of law and a fair trial by refusing to sever the assault charge from the murder charge. He additionally contends the trial court erred by including the 10-year term for the criminal street gang benefit enhancement in his sentence for count 1. The People concede the latter error, and we order the enhancement stricken from Gonzalez's sentence for count 1. In all other respects, we affirm the judgment.
BACKGROUND
Prosecution Evidence
Assault of Carlos Paniagua
Paniagua was walking home from a friend's house at around 9:30 p.m. when he noticed two men he knew as Sidro gang members "Downer" and "Bones" sitting in a dark blue Ford truck parked outside of his home. Bones, who was in the passenger seat, asked Paniagua where he was from. Paniagua "mouth[ed] off" and said he did not "bang," but mentioned he had previously been part of a tagging crew. After some staring, or mad-dogging, Downer and Bones got out of the truck and started fighting with Paniagua. Three or four other Sidro gang members came from a park across the street and joined in. The fight ended when some of the men said, "That's it. Let's go." After the fight was over, Paniagua noticed he had been stabbed in his left armpit area, right collarbone area, left back, and both arms.
At the time of trial, Paniagua was in custody for burglary. He also had a prior assault conviction.
Gonzalez owned a blue Ford truck.
At trial, Paniagua testified he did not know who stabbed him. Right after the attack, however, when he thought he was going to die, he told a police officer Downer and Bones attacked him and Downer stabbed him. The day after the attack, he told a police detective he could not identify anyone in a photographic lineup. Then, a week after the attack, he identified Gonzalez as Downer and Albert Lopez as Bones in photographic lineups. He also identified Gonzalez as Downer at trial even though he testified at the preliminary hearing that he did not recognize Gonzalez as Downer. He explained that he lied at the preliminary hearing because he "didn't want to snitch."
During the trial, the parties and witnesses sometimes referred to Lopez as Albert Lopez, sometimes referred to him as Albert Langton, and sometimes referred to him as Albert Langton Lopez. As Lopez is not a party to this appeal, we cannot ascertain his true surname from the record before us. We utilize the surname Lopez for simplicity and clarity.
Gonzalez and Lopez are documented Sidro gang members. The attack on Paniagua occurred in Sidro gang territory near a park frequented by Sidro gang members. In response to a hypothetical situation based on the assault on Paniagua, the prosecution's gang expert opined the assault was committed for the benefit of, at the direction of, or in association with the Sidro gang, and that it promoted, furthered, or assisted criminal conduct by Sidro gang members.
Murder of George Castaneda
A few hours after the assault on Paniagua occurred, Castaneda picked up John
Guerrero from Guerrero's home. Guerrero was a methamphetamine addict, and Castaneda was his friend and drug supplier. Guerrero was also close friends with Gonzalez's girlfriend, Elizabeth Rodriguez.
At trial, Guerrero admitted he was an addict and was continuing to use methamphetamine; however, he said he was currently not under the influence of any substance and had not used methamphetamine for a week.
After grabbing a bite to eat and casing potential cars for Castaneda to burglarize, Castaneda and Guerrero went to Rodriguez's home to collect money Rodriguez owed Castaneda for a prior drug purchase. When they arrived, Rodriguez and Gonzalez were asleep, but the door to the home was open. At Castaneda's insistence, Guerrero went into the home, woke up Rodriguez, and asked her for the money. Gonzalez woke up and asked who was there and what was going on. Guerrero did not say anything; however Castaneda jumped inside the home, announced his "placazo," which consisted of his moniker, "Perico," and his gang's name, "Logan Treinta."
Gonzalez jumped on the bed and said, "No. Hell, no." He appeared upset and started looking for something in the closet. He repeatedly asked Rodriguez, "Where's my s---?" She did not answer him and he yanked down the closet curtain.
After Rodriguez gave Guerrero the money, Guerrero apologized to her and Gonzalez for waking them and left the home. He returned to Castaneda's car and gave the money to Castaneda.
Rodriguez's version of events differed from Guerrero's. She admitted having experimented with methamphetamine, but denied ever purchasing any drugs from Castaneda. Instead, she testified Guerrero owed Castaneda $40 and she was going to loan Guerrero the money to pay Castaneda. She awoke to the sound of loud voices and saw Guerrero and Castaneda inside her home. Gonzalez asked who was there. Castaneda replied, "Me." Castaneda did not say anything else and never mentioned the name of his gang or his gang moniker. Gonzalez said, "What the h---?" and wanted to know what Guerrero and Castaneda were doing there. He was upset, but not angry. Guerrero asked Rodriguez for the money to pay Castaneda. She gave him the money and he and Castaneda left.
Rodriguez said Gonzalez became upset with her and yelled at her. He started looking for his pants and said, "Where's my s--- at?" When he opened the closet curtains, the curtains fell down. The two argued about Castaneda's visit and various other matters. At some point, the argument became physical. He pushed and shoved her, pulled some of her hair out of her head, and punched her in the leg, leaving a handprint mark. He then went to take a walk to cool down.
After Gonzalez left, Rodriguez said she contacted her friend Andrew Avila and asked him to come over. Shortly after Avila arrived, at around 3:00 a.m., Gonzalez returned. He had been gone 20 to 30 minutes. Because Gonzalez had calmed down, Rodriguez asked Avila to leave, which Avila did. According to Rodriguez, Gonzalez stayed with her and did not leave until the next night.
Rodriguez initially told a police detective she went and picked Avila up, then took him back to his home around daybreak.
Avila, testifying for the defense, corroborated this part of Rodriguez's account.
Meanwhile, according to Guerrero, after he and Castaneda left Rodriguez's home, they drove to a discount retail store and purchased some items. They then cased some more cars and returned to Guerrero's home at around 4:00 a.m. Although Guerrero had used methamphetamine twice the prior day, he was no longer feeling the effects of it at that point.
When Castaneda and Guerrero drove up to Guerrero's home, they saw a red car double-parked. They purposely drove past it and noticed the windows were down and it appeared empty. Castaneda then parked in front of Guerrero's home. As Castaneda was getting out of the car, Gonzalez and Lopez ran toward Castaneda and shot him. Lopez used a shotgun and Gonzalez used a handgun. After the shooting, the two men ran away, followed by the red car that had been double-parked.
Rodriguez told a police detective Gonzalez owned a handgun. At trial, she denied knowing whether Gonzalez owned a handgun, but said she had previously seen him with something that could have been a toy gun or a BB gun.
Because he was afraid of being hurt, Guerrero did not initially inform the police he knew one of the shooters. He also did not tell police he and Castaneda had been to Rodriguez's home earlier that morning. During his third interview, before a planned polygraph examination, he told a police detective Gonzalez was one of the shooters. He told the detective he had seen Gonzalez twice before, but lied and said he did not know him. He later identified both Gonzalez and Lopez in photograph lineups.
Seconds after the gunfire, one of Guerrero's neighbors heard two car doors shutting and saw a dark, four-door Chevy Impala turn on its headlights and drive away. Another neighbor saw two individuals, one taller than the other, walking quickly down the street away from the location of Guerrero's home after the shooting. Neither man was carrying any objects in his hands. The neighbor also saw two vehicles leave the area. The first vehicle left the area immediately after the shooting. The second vehicle stopped near the two men, and the neighbor heard two car doors slam. Then, the car drove away faster than normal.
When police officers arrived a few minutes after the shooting, they found Castaneda lying on the ground in a large pool of blood. Paramedics subsequently pronounced him dead at the scene. He had been shot multiple times. At least two firearms were used during the shooting. One of the bullets struck Castaneda in the head and passed through his brain, causing his death.
Shortly after Guerrero identified Gonzalez as one of the shooters, the district attorney's office put Guerrero in a witness protection program. The district attorney's office relocated Guerrero and began paying him approximately $1,100 a month for rent, food, and incidental expenses. At the time of his testimony, he had received approximately $13,000 in such assistance. Neither the police nor the district attorney's office had discussed the witness protection program with Guerrero before Guerrero identified Gonzalez as one of the shooters in a photographic lineup.
After the district attorney's office relocated Guerrero, a parolee moved in with him. The two possessed and used methamphetamine together in Guerrero's new home.
Nine days before Castaneda's murder, other Sidro gang members carjacked the Impala. The owner of the Impala had a shotgun and some ammunition in the trunk.
A few days after Castaneda's murder, police officers searched a motel room occupied by Lopez and a woman. They arrested Lopez after finding numerous items of personal identification that did not belong to either Lopez or the woman, including personal identification and a check belonging to the owner of the Impala and his family.
Four days after Lopez's arrest, law enforcement officers arrested Gonzalez. They found a health care card belonging to the owner of the Impala in Gonzalez's wallet.
Rodriguez's landlord testified Rodriguez told him Gonzalez was arrested because he was upset Castaneda had disrespected her. Rodriguez denied making these remarks.
In response to a hypothetical situation based on Castaneda's murder, the prosecution's gang expert opined the murder was committed for the benefit of, at the direction of, or in association with the Sidro gang, and that it promoted, furthered, or assisted criminal conduct by Sidro gang members.
Defense Evidence
Gonzalez's primary defense was that Castaneda was killed by members of the Mexican Mafia prison gang. In an interview more than four years before Castaneda's death, a Mexican Mafia member told a police detective the Mexican Mafia had given the "green light" to kill Castaneda. Although another person had put a "red light" on Castaneda's murder, the member said he had the authority to and would overrule any "red light." The member informed the detective, "There is a green light on [Castaneda] now. [Castaneda] is going to die."
Castaneda was incarcerated in 2005 and 2006. During those incarcerations, he had a "keep separate" classification. His 2006 classification resulted from an assault on him in jail that necessitated his hospitalization for five days.
DISCUSSION
I
Severance of Assault and Murder Charges
A
Prior to trial, Gonzales moved to sever the assault charge from the murder charge. The trial court denied the motion because the offenses were of the same class, there is a preference for trying cases of the same class in a single trial, and the evidence was cross-admissible.
Gonzalez contends the trial court abused its discretion and deprived him of his constitutional rights to due process of law and a fair trial by denying his severance motion. We conclude this contention lacks merit.
B
A prosecutor may charge two or more different offenses of the same class under separate counts in the same accusatory pleading. (§ 954.) The trial court may, in the interests of justice and for good cause shown, order the different offenses or counts tried separately. (Ibid.)
Gonzalez concedes the assault and murder offenses were of the same class as they both involved assaultive behavior. (People v. Arias (1996) 13 Cal.4th 92, 126-127.) Therefore, the prosecutor permissibly joined the two offenses. (§ 954.)
Moreover, "[b]ecause it ordinarily promotes efficiency, joinder is the preferred course of action. When the statutory requirements are met, joinder is error only if prejudice is clearly shown. [Citations.] [¶] ' "In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, 'we consider the record before the trial court when it made its ruling.' " [Citations.] "The relevant factors are whether (1) the evidence would be cross-admissible in separate trials, (2) some charges are unusually likely to inflame the jury against the defendant, (3) a weak case has been joined with a strong case, or with another weak case, so that the total evidence may unfairly alter the outcome on some or all charges, and (4) one of the charges is a capital offense, or joinder of the charges converts the matter into a capital case." [Citation.] ' " (People v. Scott (2011) 52 Cal.4th 452, 469-470 (Scott).)
In this case, the prosecution's theory was that the assault on Paniagua and the murder of Castaneda shared a common motive—avenging perceived disrespect of Sidro gang members. California law allows the admission of other crimes evidence to show two crimes were caused by the same motive. (People v. Spector (2011) 194 Cal.App.4th 1335, 1381-1382.) This is true even when motive is not an element the prosecutor must prove because " ' the absence of apparent motive may make proof of the essential elements less persuasive.' [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 604.)
Moreover, the evidence of the assault on Paniagua was highly relevant to the issue of Gonzalez's motive for murdering Castaneda because of the close timing between the assault and the murder, the similarity of the perceived disrespectful acts preceding both crimes, and the involvement of the same accomplice in both crimes. Thus, we conclude the trial court properly determined the evidence of the assault on Paniagua would have been cross-admissible in a separate trial for the murder of Castaneda. (People v. Zambrano (2007) 41 Cal.4th 1082, 1129, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
If the evidence would be cross-admissible in separate trials, " ' "that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses." [Citations.]' " (Scott, supra, 52 Cal.4th at p. 470.) However, even if the evidence was not cross-admissible in this case, severance was not required because the factors weighing in favor of severance were absent. (Id. at p. 473.) The evidence supporting Gonzalez's guilt of both crimes was similar and of comparable strength, consisting of eyewitness testimony from men who knew Gonzalez corroborated by circumstantial evidence. In addition, the evidence related to the assault on Paniagua was no more distressing than the evidence related to Castaneda's murder. To the contrary, the evidence related to the assault was arguably less distressing because Paniagua did not die from the assault nor is there any evidence he suffered any long term effects from it. Finally, joinder of the assault charge did not convert the murder charge into a capital case. "A fortiori, defendant has not shown actual prejudice amounting to a denial of fundamental fairness and due process. [Citation.]" (Ibid.)
II
Sentence for Criminal Street Gang Benefit Enhancement
Gonzalez contends the trial court erred by including the 10-year term for the criminal street gang benefit enhancement in his sentence for count 1. The People concede the error.
As the California Supreme Court has explained, "section 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) (section 186.22(b)(1)(C)) imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does not apply, however, where the violent felony is 'punishable by imprisonment in the state prison for life.' [Citation.] Instead, section 186.22, subdivision (b)(5) (section 186.22(b)(5)) applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Camino (2010) 188 Cal.App.4th 1359, 1382.) We, therefore, strike the 10-year enhancement under section 186.22, subdivision (b)(1) from Gonzalez's sentence for count 1.
DISPOSITION
The 10-year enhancement under section 186.22, subdivision (b)(1) is stricken from the sentence for count 1. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation. We affirm the judgment in all other respects.
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McCONNELL, P. J.
WE CONCUR:
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NARES, J.
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AARON, J.