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People v. Guajaca

California Court of Appeals, Second District, Third Division
Mar 25, 2008
No. B197788 (Cal. Ct. App. Mar. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EMILIO R. GUAJACA, Defendant and Appellant. B197788 California Court of Appeal, Second District, Third Division March 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Chidsey, Jr., Judge. Los Angeles County Super. Ct. No. TA083202

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

ALDRICH, J.

Emilio R. Guajaca (Guajaca) appeals from the judgment entered following jury trials which resulted in his conviction of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), two counts of assault with a firearm (§ 245, subd. (a)(2)), during each of which he personally used a firearm (§ 12022.5, subd. (a)), and discharging a firearm with gross negligence (§ 246.3), and his admission that he previously had been convicted of a felony, robbery (§ 211), within the meaning of section 667, subdivision (a)(1) and the “Three Strikes” law (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)). The trial court sentenced Guajaca to 15 years in prison. We affirm the judgment.

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

FACTUAL AND PROCEDURAL BACKGROUND

1. The July 2006 trial.

Guajaca was initially tried on the alleged charges in May 2006. However on May 9, 2006, a mistrial was declared when the jury indicated it was deadlocked as to all counts. Guajaca’s second trial began on July 10, 2006.

a. Facts.

On January 27, 2006, 15-year-old Gerardo S. was living with his family at 2546 East Van Buren Street in Carson. At approximately 11:30 that night, he was standing in front of the garage, talking with his mother, Laura Sanchez (Sanchez). Sanchez was standing to the left of Gerardo S., facing the street. Gerardo S. believed that Sanchez, who had worn glasses until several months earlier, was not wearing them that night.

Suddenly, Gerardo S. heard a gunshot, then felt “strong air” go by his face. The gunshot came from Gerardo S.’s left, or the direction of Guajaca’s house, which is directly across the street. Frightened, Gerardo S. did not look to see who had fired the shot. Instead, he ran into the house. After he was inside, Gerardo S. heard one or two more shots fired.

According to Gerardo S., Sanchez, who had also run into the house, telephoned the police. While they waited for the police to arrive, Sanchez told Gerardo S. that “she had seen the guy across the street[, Guajaca,] pointing a gun at [them].” After the police arrived and had directed the people in the house across the street to come outside, Gerardo S. identified Guajaca as the person who had fired the gun at him. Although Gerardo S. did not hear or see where the bullet had “landed,” he later saw a mark, or chip, in the wall of his neighbor’s house to the right of where he had been standing when the shot was fired.

Sanchez testified that she, her husband and six children had lived in the house on East Van Buren Street for the previous eight years. During that time, she had seen Guajaca an average of once or twice each week. On the night of January 27, 2006, Sanchez was standing on the sidewalk in front of her garage talking with her son. It had been a clear night and the lighting conditions had been “very good.” There are street lights between Sanchez’s and Guajaca’s houses. Sanchez, who wears glasses, stated that she had them on that night.

At approximately 11:30 p.m., Sanchez heard a “loud bang” come from the direction of Guajaca’s house. At first Sanchez believed the sound had been made by fireworks. She “turned to look and . . . saw someone standing [approximately 50 feet away] doing something.” The individual was moving “like when you [are] get[ting] ready to shoot.” When she then saw a bright “flash” and heard a second “bang,” Sanchez, followed by her son, ran inside her house. Although she could not see his face, judging from his build, Sanchez was “positive” the individual who had fired the gun was Guajaca. In addition, Sanchez knew Guajaca had not fired a regular handgun. The gun he fired at her and Gerardo S. was longer and she believed it might have been a shotgun. Once inside her house, Sanchez called 911 and told the operator that “the guy from across the street was shooting at [her and her son].”

Police officers arrived at Sanchez’s house approximately five minutes after she placed the 911 call. The police brought the occupants of Guajaca’s house outside and had them stand in the middle of the street, against a police car. Sanchez was standing approximately 40 feet away. As soon as Sanchez saw Guajaca, she told the police, “ ‘That’s the guy that shot me.’ ” There was no doubt in Sanchez’s mind that Guajaca was the individual who had fired the gun.

Carson Deputy Sheriff Derek Newcomb (Newcomb) and his partner, Deputy Dailey, responded to Sanchez’s call regarding the shooting. After Guajaca’s mother signed a consent form, Newcomb and other deputies searched Mrs. Guajaca’s house. Newcomb first noticed some “insulation-type material” and some toilet paper in a toilet. Newcomb found more “large clumps” of “insulation-type material on the floor” in the east bedroom. When he looked up at the ceiling, Newcomb saw a hole approximately one foot in diameter. Newcomb entered the attic through a door or “crawl space.” Inside the attic were studs, or wood beams, and insulation material over the dry wall which made up the ceiling. Newcomb made his way toward the hole in the ceiling, which was approximately four feet from the crawl space. When he was approximately three feet from the crawl space, Newcomb discovered an “SKS rifle [loosely] wrapped in a terry cloth bath towel” underneath some insulation. Further examination of the rifle revealed “five live rounds in the magazine and one in the chamber.”

Newcomb and a number of other officers searched the area outside the house, which was well lit by lights from a number of patrol cars and a helicopter. In the backyard, near the back door to the house, Newcomb found an expended shell casing. On the sidewalk, next to a nearby gate, Newcomb discovered a live round of ammunition and an additional expended casing.

In preparing his report on the investigation, Newcomb went to Sanchez’s house and spoke with her. Sanchez identified Guajaca as the individual who had fired shots at her and her son. Sanchez was positive of her identification. There was no “hesitation in her voice” when she stated Guajaca was the shooter. Sanchez told Newcomb that Guajaca had been “ ‘standing on the sidewalk east of 2547 East Van Buren Street . . . in a crouched position pointing a rifle [in] her direction.’ ”

Deputy Sheriff Patricia Rines (Rines) is a ballistics expert. She analyzed the rifle, ammunition and cartridge casings found in and around Guajaca’s residence. After performing certain tests, Rines concluded the cartridge casings had been ejected when the rifle found in Guajaca’s attic had been fired. In addition, Rines noted that if there is a live cartridge in the chamber and the individual operating the gun chooses to “pull back the bolt” rather than pull the trigger, the live cartridge will eject from the weapon.

Guajaca’s testimony from his previous trial was read into evidence. At that proceeding he had stated that at approximately 11:30 p.m. on January 27, 2006, he was at his mother’s home at 2547 Van Buren Street. He had been watching television and attempting to put his two-year-old daughter to bed when he heard what sounded like gunshots. The next thing Guajaca remembered was that there was a “helicopter around [the] house and cops facing lights at [them].” The occupants of the house were ordered to come outside with their hands raised. As soon as Guajaca walked out of the house, he was wrestled to the ground, handcuffed and placed in the back of a patrol car. Guajaca was immediately driven to the police station where he was interrogated by two police officers. Guajaca stated the officers “were demanding.” They wanted him to admit that he had shot the gun at Sanchez and her son. “That’s all they wanted to hear.” In response, Guajaca told the officers that he did not know what they were talking about. Guajaca never told the officer interviewing him that a home boy from the neighborhood had fired the shots and that he had simply taken the gun and put it in the attic. Guajaca never heard anyone come into the house before or after the shooting. “[F]rom the time of the shooting until the time the police took [him] away, no one entered or exited [the] house. . . .”

Guajaca had “never had any problems with any of [his mother’s] neighbors.” In addition, the firearm found in the attic did not belong to Guajaca. It belonged to his younger brother, Robert Guajaca, who was in custody after having been accused of murder. Guajaca had never touched the gun. He had seen the gun approximately three years earlier, when his brother was “sawing it off and taping it up.” At that time, Guajaca had told his brother to “get those things out of [their mother’s] house.”

Guajaca did not remember seeing any holes in the ceiling of his mother’s home or insulation anywhere inside or outside the house. Guajaca had never been in the attic of his mother’s house.

Deputy Sheriff Dennis Chuck (Chuck) interviewed Guajaca in a room at the Carson Police Station. No other officers were present; it was only Chuck and Guajaca in the room. Chuck chose not to tape record the interview. When shown a photograph of the gun found in his parents’ attic, Guajaca told Chuck that he had seen the gun before. Guajaca stated he had been “just kicking it out on the street when all of a sudden a home boy came up and started firing the gun.” This home boy fired the gun four to five times, handed the weapon to Guajaca and asked him to hide it for him. Guajaca took the gun, went into the house and hid it in the attic.

Guajaca was tested for “gunshot residue.” However, the test was never processed. Chuck explained that if a suspect admits to firing or handling a weapon, the crime lab, as a matter of policy, will not process a gunshot residue test. Since Guajaca had stated he had handled the weapon, Chuck chose not to send the gunshot residue test to the crime lab.

Guajaca testified on his own behalf. He stated that between 11:30 and midnight on January 27, he was attempting to get his daughter to go to sleep. Guajaca did not go outside the house and did not hear anyone else enter or leave the house.

Guajaca was on good terms with the surrounding neighbors. He had never even spoken to Gerardo S.

Guajaca recognized the gun depicted in the People’s exhibit. It did not belong to him and he did not have possession of it on January 27, 2006. Guajaca did not see a “home boy” shoot the gun, then agree to hide the weapon. The gun belongs to Guajaca’s brother, Robert Guajaca. Guajaca had asked his brother why he had the gun, then told him to get it out of their mother’s home.

Guajaca, who weighs 240 pounds, did not attempt to hide the gun in the attic. Because of his size, he could not have “fit in there.” Neither did Guajaca put a hole in the ceiling. Before his arrest, there were no holes in the ceiling of the house.

When Guajaca was arrested, he “wasn’t told anything.” The police “rushed” him, placed him in the back of a patrol car and took him “off to jail.” After arriving at the jail, Guajaca was tested for gunshot residue. An officer used cotton swabs to collect samples from Guajaca’s lower arms and hands.

A couple of days after he had been taken into custody, Guajaca was interviewed by Detective Chuck and another officer. Chuck did not ask Guajaca what had happened. He simply told Guajaca that he, Guajaca, “did this” and that he should just admit it.

Guajaca testified he is bald and was bald on January 27, 2006. It is common to see bald Hispanic men around his mother’s home.

Guajaca admitted previously having been convicted of robbery. Guajaca also admitted that he has a “unique appearance.” He has a shaved head, tattoos on the back of his head and above his eyes, is five feet, ten inches tall and, as stated above, weighs 240 pounds.

Guajaca believed Sanchez’s description of the area where the shooting occurred was not accurate. The distance from her driveway to the area where an individual purportedly had a gun is much farther than Sanchez stated. In addition, there is only one street light on the corner.

b. Procedural history – the May and July 2006 trials.

By amended information filed May 1, 2006, Guajaca was charged with two counts of assault with a firearm in violation of section 245, subdivision (a)(2), during the commission of each of which he personally used a firearm within the meaning of section 12022.5, subdivision (a), the discharge of a firearm with gross negligence in violation of section 246.3 and possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). It was further alleged pursuant to sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the “Three Strikes” law, and section 667, subdivision (a)(1), that Guajaca previously had been convicted of robbery in violation of section 211.

Trial commenced the same day. Following the presentation of evidence, instruction of the jury and argument by the parties, the jury began deliberating on May 5, 2006. On May 8, 2006, after requesting that all of Sanchez’s testimony be read back, the jury indicated it was “hopelessly deadlocked.” After being admonished by the trial court, the jury returned to the jury room to continue deliberating. However, on May 9, the jury again sent a note to the trial court indicating it was “deadlock[ed] on all counts.” After all the jurors indicated they were unable to reach a verdict on any one of the counts, the trial court declared a mistrial. It was later determined that 11 jurors had voted to convict Guajaca and one had voted to acquit him of the crimes charged.

Guajaca’s second trial commenced on July 10, 2006. At a pretrial hearing held out of the presence of the jury, the People’s motion to use Guajaca’s testimony from the prior trial, pursuant to Evidence Code sections 1220 and 1290, was granted.

On July 12, 2006, Guajaca admitted having suffered the alleged 1993 robbery conviction and the trial court found it true. It was stipulated as to count four (possession of a firearm by a felon) that Guajaca previously had been convicted of a felony. The trial court then ruled that, should Guajaca testify, he could be impeached with the robbery conviction.

On the morning of July 14, 2006, the jury submitted the following question to the trial court: “We would like to know what happens when we are hung on 3 counts (1, 2, 3 = 7/5) and agree on only [one] count (4)?” After conferring with counsel, the trial court gave the following response: “You have been instructed on the law and provided with recommendations as to the manner of your deliberation. Continue deliberating. I have flagged the jury instruction that answers specifically answers [sic] your question.” The instruction flagged by the trial court provided: “ ‘As soon as all jurors have agreed on a verdict, the foreperson must date and sign the appropriate verdict forms and notify the bailiff. If you are able to reach a unanimous decision on only one or [on] some of the charges, fill in those verdict forms only and notify the bailiff. Return any unsigned verdict forms.’ ”

Later that day, the jury foreperson again indicated to the trial court that, although it had reached a verdict on count four, the jury was hopelessly deadlocked on counts one, two and three. After polling the jury, during which each individual juror indicated he or she believed the jury was hopelessly deadlocked as to the first three counts, the trial court declared a mistrial as to those counts. As to count four, the jury found Guajaca guilty of the charge of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1).

On August 3, 2006, defense counsel made a motion to dismiss the charges alleged in counts one, two and three. The trial court denied the motion and ordered all parties to return for a jury trial on September 12, 2006.

2. The September 2006 trial.

a. The facts.

Laura Sanchez’s testimony was substantially similar to her testimony at the second trial. She stated that at approximately 11:30 p.m. on January 27, 2006, she was standing in front of her garage, talking with her 15-year-old son, Gerardo S., when she heard a “loud bang.” Sanchez turned to her left and saw Guajaca across the street. He was making movements with his hands as if he was “get[ting] a gun ready to shoot.” Sanchez then saw a “flash” of light, heard a second “bang” and saw that Guajaca had fired a gun aimed directly at her and her son. Sanchez and Gerardo S. ran inside their house and Sanchez called 911.

Sanchez wears glasses when she drives, but can still “see pretty well” without them. At the time of the shooting, she did not look at Guajaca’s facial features, but could tell that he was the shooter based on his build. There was no doubt in her mind that Guajaca had been the man who fired the gun. Sanchez had seen Guajaca approximately once or twice a week for the last eight years. Although she had never spoken to Guajaca, Sanchez previously had no problem with him.

Police officers arrived and ordered Guajaca and the rest of the occupants to come out of their house. Once the occupants were outside, Sanchez identified Guajaca as the man who had fired shots at her and her son.

Los Angeles County Deputy Sheriff Derek Newcomb testified he responded to Sanchez’s 911 call. His testimony, too, was substantially similar to the testimony he gave at the July 2006 trial. After receiving permission to enter the house from Guajaca’s mother, Newcomb, as part of the “search team,” went inside Guajaca’s house. In a toilet, Newcomb saw toilet paper and chunks of “insulation-type material.” In one of the bedrooms, Newcomb observed more of the insulation-type material on the floor. Immediately above the material was a hole in the ceiling. Newcomb crawled into the attic through an approximately two and one-half foot by two and one-half foot crawl space. In the attic, underneath the insulation and wrapped in a terry cloth bath towel, he found a rifle. The weapon was located approximately four feet from the crawl space and approximately one foot from the hole in the bedroom ceiling. The gun was loaded. There were five live rounds in the magazine and one in the chamber.

Outside Guajaca’s house, on the sidewalk just east of the residence, Newcomb recovered a live round of ammunition. Near the back door to the house, Newcomb discovered two “expended shell casing[s].”

After conducting the search of Guajaca’s house, Newcomb interviewed Sanchez. Newcomb’s report indicated the shooter was “ ‘identified as standing on the sidewalk and then later standing in a crouched position and pointing a rifle.’ ” Sanchez had no difficulty identifying Guajaca as the shooter. Referring to Guajaca, she stated she had been shot at by her neighbor.

Gerardo S.’s testimony from the July 2006 trial was read into evidence by the prosecution. As it was previously summarized, that summary need not be repeated here.

Patricia Rines is a deputy sheriff assigned to the crime lab in the firearms section. Rines was familiar with the SKS assault rifle used in the shooting. Because the rifle is semi-automatic, one can load the magazine up to capacity and place a round in the chamber. When one then pulls the trigger, the round in the chamber will fire, the casing will be ejected and another round will automatically move into the chamber. The SKS rifle used in the shooting can hold 10 cartridges in the magazine and one in the chamber.

Rines test fired the rifle, then compared the casings from the bullets she fired to those found outside Guajaca’s residence. From the markings on the casings, Rines concluded all of the cartridges had been fired from the same SKS rifle. Rines noted that, if there was a cartridge in the chamber and one were to “cock” the weapon by sliding the bolt to the rear, the live round in the chamber would be ejected and a new cartridge from the magazine would “load it into the chamber.”

On January 27, 2006, Detective Dennis Chuck was assigned as the investigating officer in Guajaca’s case. His duties involved “put[ting] the case[] together and present[ing] [the case] to the district attorney’s office for filing.” As part of his investigation, Chuck spoke with Guajaca in an interview room at the Carson Station jail. After Guajaca waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, he told the detective that he had been “kicking it onto the street and a homeboy came up and this homeboy started firing the [rifle]. After the homeboy finished firing the weapon, . . . the homeboy gave the weapon to him[, Guajaca,] and asked him to hide it for him.” Guajaca hid the gun in the attic area of his mother’s house. Guajaca was unable to provide Chuck with any further information about his homeboy. He did not know the man’s moniker, or gang name, or where he was from.

Chuck testified that a gunshot residue test was performed on Guajaca, but that it was not processed by the crime lab. Since Guajaca admitted handling a weapon that had been recently fired, he was most likely “contaminated” with gunshot residue and it would not have been helpful to analyze it.

Chuck chose not to tape record or video tape his interview with Guajaca. In a case such as Guajaca’s, where there are victims who can testify as to what happened, Chuck’s general policy is to not record his interviews with suspects.

Guajaca testified in his own defense. On the night of January 27, 2006, Guajaca and his family were visiting at his mother’s home on Van Buren Street. Although he does not live there, Guajaca visited the house periodically. At approximately 11:30 p.m., Guajaca was “putting [his] daughter to sleep.” Guajaca was not “out on the street.”

Guajaca remembered hearing gunshots on the night of January 27, 2006. From the time the shots were fired until the police arrived, he did not hear anyone enter or leave the house. Guajaca heard the police direct him and the other occupants of the house to come outside. As he did so, Guajaca saw that the house was surrounded by police officers. Guajaca was outside of the house for only a matter of seconds before he was handcuffed, placed in a patrol car and taken to jail. Guajaca did not know the gun was inside the house. That night he never saw the weapon or the casings found just outside the back door. However, Guajaca had, in the past, seen gun casings around the neighborhood and it was not unusual to hear the sound of gunfire.

No one at the house that night looked like Guajaca. His parents, young children and teenagers were there. No one else of Guajaca’s “stature,” or “weight,” was staying at the house.

Prior to January 27, Guajaca had not had any problems with Gerardo S. or Gerardo S.’s mother.

Guajaca recognized the gun purportedly used in the January 27 shooting. The gun belonged to his brother, Robert Guajaca, who was in custody for murder. Approximately three years earlier, Guajaca had seen the gun in the trunk of his brother’s car. Guajaca’s brother had been “taping it up.” Guajaca had never touched the firearm.

Police officers tested Guajaca for gun residue. They “swabbed” his arms from the elbow down to his fingertips.

Guajaca never told Detective Chuck that a homeboy came by, fired the gun, then gave it to Guajaca to hide. Chuck was “aggressive” during his interview with Guajaca. He repeatedly told Guajaca, “ ‘I know you did this. Just admit to it.’ ” In addition, Chuck was not alone. His partner, Detective Ramos, was there during the approximately 30-minute interview. Throughout the interview, Guajaca denied shooting at anyone. He denied ever having touched the gun. The fact that the gun belonged to his brother never came up.

When asked whether he had a reasonable explanation for how the gun came to be in his mother’s attic, Guajaca responded, “That gun could have been fired months, even years, before this happened. There’s a bunch of ivy right there. Maybe my brother was shooting at one time. I don’t know. I can’t explain that, but what I can explain is I didn’t – I didn’t shoot that gun.”

Guajaca admitted having been convicted of “a strong-armed robbery” in October of 1993.

Maria Guajaca (Maria) is Guajaca’s mother. She testified that, although Guajaca does not live with her, he periodically stays at her home. At approximately 11:00 p.m. on January 27, 2006, Guajaca, his girlfriend and his girlfriend’s baby were at Maria’s house. Guajaca was watching television when Maria went to bed at approximately 9:00 p.m. Maria, who is a “light sleeper,” did not hear anyone come into or leave the house after she went to bed. She did hear a “loud noise” at approximately 11:30 that night. She went to the door, opened it and looked out to see “three boys and the kid that lives across the street . . . looking at [her], but they didn’t say anything or do anything.” When police officers arrived on the night of January 27, Maria consented to a search of her house.

Maria had lived in the house for approximately 11 years. During that time, neither she nor Guajaca ever had a problem with the Sanchez family. When asked if Guajaca owned a gun, Maria responded, “No way.” Further, Maria would have been surprised if her son, Robert Guajaca, owned a gun.

b. Procedural history.

The third jury trial on counts one (assault with a firearm), two (assault with a firearm) and three (discharging a firearm with gross negligence) commenced on September 14, 2006.

Outside the presence of the jury, the prosecutor indicated he intended to read into evidence Guajaca’s testimony from the first trial. The prosecutor asserted he was entitled to do so pursuant to Evidence Code sections 1220 and 1290. Counsel argued that a defendant’s testimony amounts to an admission within the meaning of Evidence Code section 1220. Further, it is admissible pursuant to section 1290 as prior testimony because a defendant is “unavailable” as a witness to the prosecution. The trial court determined that, should Guajaca decide not to testify, the prosecutor would be allowed to reopen his case and read into evidence Guajaca’s prior testimony. Should Guajaca decide to testify at trial, the prosecutor would be allowed to impeach him with his prior testimony.

Evidence Code section 1220 provides: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity . . . .”

Following a discussion outside the presence of Guajaca, the parties stipulated that Gerardo S. need not testify at the third trial and that his testimony from the second trial could be read into evidence.

The jury began its deliberations on September 19, 2006. On September 20, the jury requested a read back of Sanchez’s testimony. Later that day, the trial court received a note from the jury stating, “We can not reach a verdict. On all counts.” When the trial court asked the jury foreman if there was any other testimony which might encourage further deliberations, the foreman responded, “I think the son’s testimony might help.” After the court reporter then read to the jury the testimony of Gerardo S., the jury resumed its deliberations. Later that day, the jury found Guajaca guilty of the charged offenses and determined the special allegations were true.

At proceedings held on October 17, 2006, Guajaca made a motion pursuant to Faretta v. California (1975) 422 U.S. 806, requesting that the trial court relieve his counsel and allow him to represent himself. The following day, after advising him of the disadvantages of self-representation, the trial court granted Guajaca’s motion.

On January 18, 2007, Guajaca, acting in propria persona, filed a motion for a new trial. Guajaca argued the prosecutor committed misconduct by relying on perjured testimony and that his trial counsel had been ineffective for failing to impeach Sanchez with prior inconsistent statements. On February 1, 2007, the trial court denied the motion.

At sentencing proceedings, held on February 1, the trial court denied Guajaca’s motion to strike his prior robbery conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then imposed the middle term of three years, doubled to six years in prison pursuant to the Three Strikes law (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)), for Guajaca’s conviction of assault with a firearm of Sanchez in violation of section 245, subdivision (a)(2). For his conviction of assault with a firearm of Gerardo S., the court imposed, then stayed pursuant to section 654, a consecutive term of one-third the mid-term, or one year, doubled to two years. For the allegations Guajaca personally used a firearm during each of the assaults pursuant to section 12022.5, subd. (a), the trial court imposed consecutive middle term enhancements of four years in prison, then stayed one of the enhancements. The trial court imposed, then stayed, a consecutive term of one-third the mid-term, or eight months, doubled to 16 months, for Guajaca’s conviction of discharging a firearm with gross negligence in violation of section 246.3. For his conviction of possession of a firearm by a felon in violation of section 12021, subd. (a)(1), the trial court imposed, then stayed, a term of one-third the mid-term, or eight months, doubled to one year, four months. Finally, for the finding Guajaca had previously been convicted of a serious felony pursuant to section 667, subdivision (a), robbery in violation of section 211, the trial court imposed a consecutive term of five years in prison. In total, the trial court sentenced Guajaca to 15 years in state prison.

Guajaca was awarded presentence custody credit for 370 days actually served and 55 days of good time/work time, or a total of 425 days. The trial court ordered Guajaca to pay a $3,000 restitution fine (§ 1202.4, subd. (b)) and a stayed $3,000 parole revocation restitution fine (§ 1202.45).

Guajaca filed a timely notice of appeal on February 1, 2007.

This court appointed counsel to represent Guajaca on appeal on May 7, 2007.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed December 24, 2007, the clerk of this court advised Guajaca to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On January 7, 2008, Guajaca filed a response in which he asserted the evidence was insufficient to support the jury’s verdicts. In particular, Guajaca contends: (1) Sanchez “testified she did not see the shooter’s face,” (2) his fingerprints were not found on the gun, (3) the house in which the weapon was found was not his home (he “just visit[s] from time to time”), and (4) had the police tested for gunshot residue on his arms and hands they would have found none.

DISCUSSION

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

In the present case, Sanchez testified she had seen Guajaca once or twice each week for the past eight years. Guajaca admitted that his appearance was “unique.” He has a shaved head, is five feet, ten inches tall and weighs 240 pounds. Under these circumstances, a rational trier of fact could have believed Sanchez was able to identify Guajaca from his “build,” without having gotten a good look at his face.

That the police did not attempt to obtain fingerprints from the gun or process Guajaca’s test for gunshot residue is not dispositive. According to Deputy Sheriff Chuck, Guajaca admitted having handled the gun. (See People v. Reed (2000) 78 Cal.App.4th 274, 280 [“ ‘ “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends” ’ ”].)

Neither does the fact that Guajaca does not live at his mother’s house where the gun was found detract from the jury’s verdicts. Guajaca apparently visited his mother’s home frequently and, on January 27, had planned to spend the night there. Guajaca had ample opportunity to hide the gun in his mother’s attic.

The circumstances reasonably justify the jury’s findings. “ ‘ “[O]n the entire record, a rational trier of fact could [have found Guajaca] guilty beyond a reasonable doubt.” ’ ” (People v. Reed, supra, 78 Cal.App.4th at p. 279.)

APPELLATE REVIEW

We have examined the entire record and are satisfied Guajaca’s counsel has fully complied with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed..2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

We concur: KLEIN, P. J. CROSKEY, J.

Evidence Code section 1290 provides in relevant part: “As used in this article, ‘former testimony’ means testimony given under oath in: [¶] (a) Another action or in a former hearing or trial of the same action . . . .”

Evidence Code, section 1291 provides in relevant part: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion . . .; or [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”


Summaries of

People v. Guajaca

California Court of Appeals, Second District, Third Division
Mar 25, 2008
No. B197788 (Cal. Ct. App. Mar. 25, 2008)
Case details for

People v. Guajaca

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EMILIO R. GUAJACA, Defendant and…

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

Date published: Mar 25, 2008

Citations

No. B197788 (Cal. Ct. App. Mar. 25, 2008)