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People v. Jaramillo

California Court of Appeals, Second District, Second Division
Sep 22, 2008
No. B200677 (Cal. Ct. App. Sep. 22, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEONARD JARAMILLO, Defendant and Appellant. B200677 California Court of Appeal, Second District, Second Division September 22, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA078338, Charles Horan, Judge. Affirmed with modifications.

Valerie G. Wass, 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, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

P. J. BOREN

Appellant Richard Leonard Jaramillo appeals from a judgment entered after a jury found him guilty of two counts of attempted willful, deliberate, premeditated murder. (Pen. Code, §§ 664, 187, subd. (a).) As to both counts, the jury found true the allegations that appellant and/or a principal personally and intentionally discharged a firearm which caused great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)); that appellant and/or a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (d) & (e)(1)); and that appellant and/or a principal personally used a firearm (§ 12022.53, subds. (b) & (e)). The jury also found true as to both counts that the crimes were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).)

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

Appellant was sentenced to state prison on count 1 for a life term, with a 15-year minimum parole eligibility period, plus an enhancement of 25 years to life. Appellant received the same sentence with respect to count 2, which was ordered to run concurrently to count 1.

We affirm with modifications.

CONTENTIONS

Appellant contends that: (1) his attempted murder convictions must be reversed because the prosecution failed to introduce sufficient corroborating evidence to establish that appellant’s recorded admission pertained to the charged crimes; (2) the trial court’s responses to the jury’s questions were inadequate; (3) the section 12022.53, subdivisions (b), (c) and (d) enhancements based on a principals use of a firearm must be stricken; (4) the section 12022.53 enhancements that were imposed and stayed should be stricken; and (5) the judgment should be amended to reflect the correct sentence for the attempted murders in counts 1 and 2.

FACTS AND PROCEDURAL HISTORY

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following. On February 11, 2004, at about 7:00 p.m., Angel Bustos and his wife Rosa rode on Angel’s motorcycle to a theme birthday party held at Victory Outreach Church. Guests had been asked to ride their motorcycles and dress like “Fonzie.” Angel wore jeans, a T-shirt, and a leather jacket with an iron-on patch of an eagle on the back and Rosa wore a black cotton jacket. As they rode home on Don Julian Street toward the 605 freeway, Rosa told Angel she thought she heard the motorcycle backfiring. Angel glanced behind and saw shots being fired from a green car behind him on the left. After Angel parked, Rosa realized she had been shot in the arm and Angel realized he had been shot in the leg.

On February 19, 2004, Los Angeles County Sheriff’s Department Deputy Paul Marella searched appellant’s residence pursuant to a search warrant during an investigation of members of the Basset Grande gang. Deputy Marella found two revolvers wrapped in cloth in a backyard trailer. One of the firearms was a single-action revolver.

That same day, appellant was arrested and placed in an interview room with Carlos Quezada (Quezada), another member of the Basset Grande gang. Appellant and Quezada’s conversation was tape recorded. Appellant told Quezada that he and fellow gang members, Adam Tercero and Sal Huguez, had chased members of the Mongols gang who were driving motorcycles through Basset Grande territory. They abandoned the chase when they spotted a police car. Appellant and his fellow gang members then picked up two .357-caliber revolvers, a .22-caliber pistol, and a shotgun from Huguez’s house. Appellant took the single-action .357-caliber magnum revolver. They decided to pursue a man and a woman riding a motorcycle who were dressed like bikers and who they believed were Mongols. They pulled up alongside and appellant rolled down the car windows and shot at the couple. He believed that he killed the man and injured the woman, who he said was wearing a black jacket that said “Mongol Pride.” He also said the man “had patches and shit.” Appellant first told Quezada that the shooting occurred on a Sunday, then corrected himself to say it happened on the Friday before Valentine’s Day in 2004.

Los Angeles County Deputy Sheriff Ron Duval, a gang investigator for the City of Industry testified that Bassett Grande gang members have engaged in murder, attempted murder, assault with a deadly weapon, robbery, rape, burglary, kidnapping, drug sales, and weapons violations. The Bassett Grande gang was a rival to the Mongol gang. Bassett Grande members had been implicated in a murder of a Mongol gang member in 2004. Deputy Duval identified appellant as an active Bassett Grande gang member. Appellant had Bassett Grande tattoos on his body, head, and fingers. Deputy Duval opined that the shootings of the victims occurred in Bassett Grande territory and that appellant committed the crimes for the benefit of the Bassett Grande gang. Sergeant Richard Garcia testified that no other incidents similar to the shooting of the victims and during the same time frame were reported to the City of Industry Police Department.

Appellant made a motion to dismiss based on a lack of sufficient evidence to support the charged crimes. The trial court denied the motion on the basis that there was sufficient evidence that appellant committed the crimes and that his admission pertained to the charged crimes.

DISCUSSION

I. Substantial evidence supported the convictions

Appellant contends the evidence failed to establish that he participated in the crimes of attempted willful, deliberate and premeditated murder because the People failed to introduce sufficient corroborating evidence establishing that his admission was related to the charged crimes. We disagree.

“The appellate 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, supra, 4 Cal.4th at pp. 1138–1139.) In any event, 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.)

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Attempted murder requires the intent to commit murder in conjunction with a direct but ineffectual act towards the commission of the murder. (§§ 664, 188, 189.)

Substantial evidence existed from which the jury could infer that appellant committed the charged crimes. First, the victims testified that the shooting occurred near the 605 freeway, which Deputy Duval testified was territory claimed by Bassett Grande. Deputy Duval opined that appellant was an active member of the Bassett Grande gang. Deputy Duval also testified that Bassett Grande gang members engaged in murder, attempted murder and assault with a deadly weapon, and that some of them had been implicated in the murder of a Mongol gang member. Appellant’s version of the shooting substantially corroborated the victims’ version. Appellant told Quezada that he shot at a man and a woman on a motorcycle wearing biker clothing. And, two revolvers that were similar to the firearms used in the shootings were recovered from appellant’s residence.

Nonetheless, appellant argues that the evidence was insufficient to support his convictions for attempted murder because the victims did not identify appellant as the shooter and there were substantial differences between appellant’s version of the shooting and the victims’ account. We disagree. Appellant’s argument is a thinly disguised request that we reweigh the evidence, which we cannot do. For instance, he compares the victims’ testimony that the shooting occurred on February 11, 2004, to his statement that the shooting occurred the Friday before Valentine’s Day, which was February 13, 2004. Appellant also points to his statement that the female victim wore a jacket with the words “Mongol Pride,” while Rosa testified that she wore a black cotton jacket without any wording on it. He also urges that he told Quezada he killed the male and the victims crashed, but in the victims’ version, Angel parked his motorcycle. Appellant also proffers differing descriptions of the shooter made to the deputies, and points out that appellant told Quezada he had first followed a group of Mongol bikers, but abandoned the chase, while the victims testified they were riding alone. Despite appellant’s attempt to have us reweigh the evidence, we conclude that the similarity of appellant’s descriptions of the victims’ clothing, motorcycle, and the incident itself constituted sufficient evidence for the jury to conclude that appellant committed the crimes.

We conclude that substantial evidence supported the jury’s verdict and the trial court correctly denied appellant’s motion to dismiss the case based on lack of sufficient evidence.

II. The trial court properly instructed the jury

Appellant next contends that the trial court erred by failing to adequately respond to the jury’s question about the instructions regarding reasonable doubt and circumstantial evidence. We disagree.

We first note that appellant waived his claim by failing to object to the trial court’s responses to the jury’s inquiry and failed to request or propose any supplemental instructions after the trial court answered the jury’s question. (People v. Price (1991) 1 Cal.4th 324, 414 [superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161–1165].)

In any event, we conclude that the trial court properly responded to the jury’s inquiry. Pursuant to section 1138, the trial court must provide information requested by a jury concerning any point of law. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The trial court has the discretion to determine what additional explanations or definitions are needed to satisfy the jury’s request for information if the instructions given are full and complete. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212-1213 [superseded by statute on other grounds as stated in In re Steel (2004) 32 Cal.4th 682, 691].)

Here, the jury was instructed with CALJIC No. 2.00, which states, among other things, that evidence can be either direct or circumstantial. The jury was also instructed with CALJIC No. 2.01, which states in part that if the circumstantial evidence permits two reasonable interpretations, one of which points to the guilt of the defendant and the other to his innocence, the jury must adopt the interpretation that points to his innocence. It also states that if one interpretation of the evidence appears to be reasonable and the other to be unreasonable, the jury must accept the reasonable interpretation and reject the unreasonable one. And, the jury was instructed with CALJIC No. 2.90, which states that a defendant is entitled to a verdict of not guilty in the case of a reasonable doubt.

CALJIC No. 2.00 provides: “Evidence is either direct or circumstantial. [¶] Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact. [¶] Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. [¶] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. [¶] [It is not necessary that facts be proved by direct evidence. They also may be proved by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.]”

CALJIC No. 2.01 provides: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his her innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to his her guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

CALJIC No. 2.90 provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his her guilt is satisfactorily shown, [he] she is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him her guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

During deliberations, the jury sent the trial court a note stating: “In a circumstantial case—what is the distinction between ‘beyond a reasonable doubt’ [versus] interpretation of circumstances reasonable and unreasonable.” The trial court rejected defense counsel’s request to read the circumstantial evidence instruction and instead asked the foreperson to clarify the jury’s question. The foreperson stated: “Well, Your Honor, we are having trouble with the fact in circumstantial cases, which we felt this was to some point, that the interpretations, if you have two that are reasonable, you must find not guilty, I believe it was, and if you have one that’s reasonable and one that isn’t, you must find guilty, if I remember correctly?” The foreperson continued: “The question is beyond a reasonable doubt, to me that means you cannot have any doubt at all. I mean either he’s guilty or not. If there’s any nagging doubts, you must find not guilty; is that correct?”

The trial court responded that the jury had taken terminology from two different jury instructions in phrasing its question. The trial court explained the definition of proof beyond a reasonable doubt contained in CALJIC No. 2.90, and reread that instruction. The trial court then explained the distinction between direct and circumstantial evidence and suggested that the jury re-examine CALJIC No. 2.00 as well as CALJIC No. 2.01, which explains the role of circumstantial evidence in proving guilt. The trial court instructed the jury that “ all four paragraphs are, you know, equally important. Don’t just single out one particular line or instruction. All the instructions are of equal importance. Each are to be considered each in light of all the others.” The foreperson then stated that the trial court had thoroughly explained the instructions and the jury could refer to the written instructions as well. Neither party objected to or requested additional instructions at the trial court’s prompting.

We first find that the instructions were full and complete in themselves and appellant’s assertion to the contrary fails. (People v. Snow (2003) 30 Cal.4th 43, 95 [CALJIC No. 2.01 and 2.02 are constitutionally sound].) By explaining the concepts of reasonable doubt and circumstantial evidence to the jury, then referring the jury to the instructions, the trial did not abuse its discretion.

Even if the trial erred in responding to the jury’s question, appellant has failed to show how in the absence of the alleged errors it is reasonably probable that the result would have been in his favor. (People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant suggests that the trial court should have instructed the jury with CALCRIM No. 224, which defines the sufficiency of the evidence for circumstantial evidence. But, he does not explain why that instruction would have resulted in a verdict in his favor. We also conclude that appellant has failed to establish that his trial counsel rendered ineffective assistance by failing to object or request further instruction. In order to sustain a claim of ineffective assistance of counsel, a defendant must show counsel’s performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) Appellant contends that defense counsel should have asked the court for a responsive answer to the actual question stated by the jury. But, defense counsel initially requested that the trial court reread the jury instructions regarding circumstantial evidence. After clarification from the foreperson, the trial court essentially granted defense counsel’s request by explaining the differences between the instructions, rereading CALJIC No. 2.90 and referring the jury to CALJIC No. 2.00 and CALJIC No. 2.01.

CALCRIM No. 224 provides: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

Accordingly, we conclude that defense counsel’s performance was not deficient, and in any event appellant would not have achieved a more favorable result in the absence of the asserted error.

III. The trial court properly imposed and stayed the principals use of firearm enhancements pursuant to section 12022.53, subdivisions (b) through (e) and the personal use enhancements pursuant to section 12022.53, subdivisions (b) and (c)

Appellant contends that the section 12022.53, subdivisions (b) through (e) enhancements based on the principal’s use of a firearm must be stricken, rather than imposed and stayed, because the trial court previously imposed enhancements under section 12022.53, subdivision (d), based on the jury’s finding that appellant personally used, intentionally discharged, and proximately caused great bodily injury with a firearm. He concedes that the trial court properly imposed and stayed the section 12022.53, subdivisions (b) and (c) personal use enhancements imposed on each count.

In People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 (Gonzalez)our Supreme Court held that “after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” Our Supreme Court rejected the defendant’s argument interpreting section 12022.53, subdivision (f) as requiring the trial court to strike, rather than stay, the prohibited firearm enhancements. (Gonzalez, supra, at pp. 1127–1128.)

As to count 1, appellant was sentenced to life with a minimum parole period of 15 years for the offense, plus a 25 years-to-life enhancement pursuant to section 12022.53, subdivision (d), for appellant’s personal use of a firearm. The trial court then properly stayed rather than struck the 10 and 20-year firearm enhancements for personal use under section 12022.53, subdivisions (b) and (c), respectively. The trial court also stayed the firearm enhancements for a principal’s use of a firearm pursuant to section 12022.53, subdivisions (b) through (e). The trial court imposed the same sentence for count 2, but ordered appellant to serve that term concurrently with the term imposed in count 1.

In his reply brief, appellant concedes that the trial court properly imposed and stayed the section 12022.53, subdivisions (b) and (c) personal use enhancements as to both counts pursuant to Gonzalez. But, while he agrees that Gonzalez “applies when there are multiple personal use firearm enhancements, and should also apply when there are multiple principal firearm use enhancements,” he contends it does not apply when there are true findings on both personal and principal firearm use enhancements. We disagree. Applying Gonzalez to both personal and principal firearm use enhancements harmonizes with section 12022.53, subdivision (f), as interpreted by the Gonzalez court. The Gonzalez court interpreted section 12022.53, subdivision (f) to mean that only one enhancement may be imposed per person and the trial court must impose and stay all other prohibited enhancements. (Gonzalez, supra, 43 Cal.4th at p. 1128.) The Gonzalez court made no distinction between principal firearm use enhancements and personal use firearm enhancements when it held that after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed, rather than stricken. (Gonzalez, supra, at p. 1130.)

IV. The trial court properly sentenced appellant to 15 years to life pursuant to section 186.22, subdivision (b)(1)(C)

Appellant contends that the trial court improperly imposed a sentence of 15 years to life for the premeditated attempted murders in each count, and that the proper sentence is life with parole ineligibility of 15 years pursuant to section 186.22, subdivision (b)(5). He requests that the abstract of judgment be corrected to reflect count 1 and count 2, life with parole ineligibility of 15 years, and a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d).

Section 186.22, subdivision (b)(5) states that a defendant convicted of a felony punishable by imprisonment in the state prison for life, committed for the benefit of a criminal street gang, with the specific intent to promote criminal conduct by gang members, shall not be paroled until a minimum of 15 calendar years have been served.

Section 664, subdivision (a) provides that “if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.” Thus, if a section 186.22, subdivision (b)(5) allegation is found true, the trial court must impose a life sentence with a minimum parole eligibility period of 15 years. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1229.)

Here, it is clear that the trial court understood the ramifications of a true finding on section 186.22, subdivision (b)(5) and correctly imposed a life term with a 15-year minimum parole eligibility period. As to count 1, the trial court stated: “For the crime of willful, deliberate, premeditated attempted murder, the typical sentence is life, straight life in the state prison. However, pursuant to section 186.22(b)(5) the term in this case becomes 15-to-life due to the fact that the jury found the 186 allegation to be true, the 186.22(B)(1)(C) allegation. (B)(5) says that when that allegation is found true, a straight life sentence becomes a 15-to-life sentence, i.e., a minimum parole period of 15 years. [¶] So the sentence as to count 1, the underlying crime of attempted, willful, deliberate premeditated murder, defendant is sentenced to 15-to-life in the state prison.” (Italics added.)

The abstract of judgment indicates at part 6a that appellant was sentenced to state prison for 15 years to life on counts 1 and 2. At part 11, the abstract of judgment states that: “Sentences in both Counts 1 and 2 are enhanced from a straight LIFE to 15 years to Life pursuant to PC Section 186.22(b)(5) due to the fact that the Jury found to be True the allegation pursuant to PC Section 186.22(B)(1)(C). [¶] In both Counts 1 and 2, the Court, pursuant to the SUPREME COURT ruling, is not entitled to impose the 10 Year term, pursuant to PC 186.22 (B)(1)(C), however, this allegation sets the minimum PAROLE period at 15 Years.”

For purposes of clarification, we shall modify the abstract of judgment to replace the first sentence at part 11 with the following: “Sentences in both Counts 1 and 2 are life with minimum parole ineligibility of 15 years pursuant to section 186.22, subdivision (b)(5), and a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d). The sentence in Count 2 is to run concurrent to the sentence in Count 1.” The third sentence shall remain unchanged.

DISPOSITION

The abstract of judgment is modified to reflect that the first sentence at part 11 is replaced with the following: “Sentences in both Counts 1 and 2 are life with minimum parole ineligibility of 15 years pursuant to section 186.22, subdivision (b)(5), and a consecutive term of 25 years-to-life pursuant to section 12022.53, subdivision (d). The sentence in Count 2 is to run concurrent to the sentence in Count 1.” The third sentence at part 11 shall remain unchanged. The trial court is ordered to send a corrected copy of the abstract of judgment to the Department of Corrections.

In all other respects, the judgment is affirmed.

We concur: J.J. DOI TODD CHAVEZ


Summaries of

People v. Jaramillo

California Court of Appeals, Second District, Second Division
Sep 22, 2008
No. B200677 (Cal. Ct. App. Sep. 22, 2008)
Case details for

People v. Jaramillo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEONARD JARAMILLO…

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

Date published: Sep 22, 2008

Citations

No. B200677 (Cal. Ct. App. Sep. 22, 2008)