Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County Super. Ct. No. FSB038602, Jon D. Ferguson and Michael A. Smith, Judges.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Mario Marquez.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant Jamie Michael Ortega.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
Introduction
Mario Marquez and Jamie Michael Ortega (collectively, defendants) were convicted of murdering Jeffrey Shaffer, and committing robbery and carjacking. (Marquez was also convicted of felony evading a police officer and being a felon in possession of a firearm.) Marquez appeals from his conviction and sentence; Ortega appeals from his sentence only. We direct the trial court to modify Marquez’s sentence, but otherwise affirm the judgments in full.
Marquez argues his convictions must be reversed because the trial court erred by admitting in evidence a letter addressed to Marquez. The letter was found at Ortega’s house and used to connect Marquez to the location where part of the crime was committed, thus corroborating the testimony of the prosecution’s main witness. We reject Marquez’s argument that the prejudicial impact of the letter outweighed its probative value, and further conclude that even if the trial court erred in admitting the letter, any error was harmless.
Both defendants argue the trial court erred by failing to stay their sentences for carjacking under Penal Code section 654. (All further statutory references are to the Penal Code, unless otherwise noted.) We conclude the trial court’s implied finding that defendants harbored separate intents and objectives in committing the crimes of murder and carjacking is supported by substantial evidence.
Marquez argues, and the Attorney General concedes, he could not receive sentence enhancements under both sections 667, subdivision (a)(1), and 667.5, subdivision (b), based on the same underlying conviction. We direct the trial court to strike Marquez’s one year sentence enhancement under section 667.5, subdivision (b).
Judge Jon Ferguson, who oversaw the guilt phase of the trial, had signed a plea agreement form in an earlier criminal case involving Marquez in his previous role as a deputy district attorney. This fact was not discovered by any party until the bifurcated court trial on Marquez’s priors had begun, at which time Judge Ferguson immediately declared a mistrial and recused himself from the remainder of the case. Marquez has failed to establish any actual bias, or that Judge Ferguson was not impartial to him before or during the jury trial. Marquez has failed to establish good cause for setting aside the convictions, and the trial court properly denied his motion for a new trial on this ground.
Statement of Facts and Procedural History
On March 13, 2003, Rebecca Madril called Jeffrey Shaffer to ask for a ride. Shaffer drove Madril and Doloris Arriola to Ortega’s house in Shaffer’s blue Dodge Durango. After being inside the house for about 20 minutes, Arriola invited Madril and Shaffer inside. Defendants joined Arriola, Madril, and Shaffer in getting high. Later, Madril and Shaffer left to purchase beer at a liquor store. Some time after they returned, Madril went into a bedroom to change her clothes, where Arriola joined her. Shaffer and defendants remained in a back room. At one point while they were talking, Madril said to Arriola, “I don’t care. I mean, what do you want me to say? Do what you got to do.” Arriola left the room for a few minutes, and then returned. While Madril and Arriola were changing their clothes and fixing their hair, they heard two shots. Arriola left the room, returned a minute or two later, grabbed a bandanna, and left the room again. Arriola told Madril to stay in the bedroom. Madril heard Shaffer call her name once.
Several minutes later, Arriola asked Madril to go with her to the back room, where Madril saw blood on the floor; Arriola asked Madril to help her clean up the blood. About two hours later, defendants returned to Ortega’s house in Shaffer’s vehicle, without Shaffer.
Madril, Arriola, and defendants brought Shaffer’s belongings into the house where they went through them, then reloaded Shaffer’s vehicle and drove it to a motel, where they went through Shaffer’s belongings again. After defendants left the motel room, Arriola and Madril walked to a nearby restaurant, and Arriola called a relative to pick them up.
At about 5:00 a.m., on March 14, 2003, Shaffer’s body was discovered on the side of a road in Redlands, with a blue bandanna tied around his head, covering his eyes. Shaffer appeared to have four gunshot wounds. Tire marks and two sets of footprints were located in the dirt near Shaffer’s body; one set of footprints belonged to Shaffer, the other to someone wearing Phat Pharm tennis shoes. Two.22 caliber shell casings were also found at the location.
An autopsy revealed that Shaffer had suffered four gunshot wounds; either of two wounds to the head, which were inflicted at the location where his body was found, would have been fatal. Gunshot wounds to Shaffer’s abdomen and left arm would have bled, but would not have been fatal.
On March 18, 2003, San Bernardino Sheriff’s Deputy Robert Austin attempted to stop Marquez after observing the Dodge Durango Marquez was driving run a stop sign. Marquez led the deputy on a high speed chase through a residential neighborhood. After crashing into a telephone pole, Marquez tried to exit the vehicle through the driver’s side door, but was pinned against the door by the push bar on the deputy’s cruiser. In searching the vehicle, deputies found two firearms (including one Marquez had thrown back into the vehicle after being pinned against it), and a newspaper article referencing Shaffer’s murder. The vehicle Marquez had been driving was determined to belong to Shaffer.
When interviewed on March 27, 2003, Madril told DetectiveRonald Miller that her memory was “shot big time.” Madril identified a photograph of Marquez as “Pecker,” but also stated a photograph of another individual bore a remote resemblance to Pecker. People were in and out of Ortega’s house all the time. During this interview, Madril admitted to being involved in a plan to rob Shaffer, but insisted she did not know defendants were planning to kill him.
Pursuant to a warrant, deputies searched Ortega’s house on March 28, 2003. Blood stains in a back room, a bullet strike in the kitchen stove, and a bullet hole through the door between the back room and the kitchen were discovered. Stains on a chair and on the wall in the back room were determined to have been made by Shaffer’s blood. Several firearms and ammunition were found in Ortega’s house. The murder weapon, however, was never located.
In a bedroom of Ortega’s house, deputies observed a cardboard sign on the wall that had the words “Flats,” “Pecker,” and “Jamie” written on it. In a kitchen trash can, deputies found a letter dated March 10, 2003, and addressed to “Pecker.” Marquez was known by the moniker “Pecker,” and had a large tattoo on the back of his head reading “Flats.”
Numerous items belonging to Shaffer were found inside Ortega’s residence. When he was arrested, Ortega was wearing a pair of Phat Pharm tennis shoes, which matched the footprints at the scene where Shaffer’s body was found.
Ortega’s friend, Jose Segura, was interviewed by the police on March 28, 2003. During that interview, Segura told the police that Ortega called him soon after the date of the murder to say “he and one of his homeys robbed someone, and someone got hurt,” and “[Ortega] needed some help to remove some carpeting from his house.” When the search warrant was executed on March 28, 2003, there was no carpet in the back room where Shaffer’s blood was found.
On April 14, 2003, Madril telephoned Detective Brad Toms to see if he would help her get out of jail if she gave him information about Shaffer’s murder. Madril did not deny that she may have been involved in setting someone up for a robbery. Naomi Perez, who introduced Madril to Shaffer, asked Madril to leave her motel room one evening because Madril was “[t]alking about setting somebody up.” Madril’s friends and family members testified that between January and March 2003, she was using a lot of methamphetamine, and was paranoid, delusional, out of it, and prone to making up stories.
Defendants were charged with first degree murder (§§ 187, subd. (a), 189), second degree robbery (§§ 211, 212.5, subd. (c)), and carjacking (§ 215, subd. (a)); the information alleged the principal had been armed with a firearm during the commission of these crimes (§ 12022, subd. (a)(1)). Additionally, Marquez was charged with willful evasion of a police officer with reckless disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)), and unlawful possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information alleged Marquez had been convicted of a prior serious or violent felony (§§ 667, subds. b) (i), 1170.12, subds. a) d)), had served a prior prison term (§ 667.5, subd. b)), and had been convicted of a prior serious felony (§ 667, subd. a)(1)). A jury convicted defendants of all charges, and found true all attendant enhancements. In a bifurcated proceeding, the court found true Marquez’s priors.
Marquez was sentenced to a total term of 70 years and eight months to life: a determinate term of 10 years for carjacking, plus a consecutive one year term for the attendant firearm enhancement, plus six years for the priors, plus one year and four months for evading an officer, plus one year and four months for possession of a firearm, to be followed by an indeterminate term of 50 years to life for murder, plus one year for the attendant firearm enhancement. Ortega was sentenced to a total term of 32 years to life: a determinate term of five years for carjacking, plus one year for the firearm enhancement, to be followed by an indeterminate term of 25 years to life for murder plus one year for the firearm enhancement. Both defendants filed timely notices of appeal.
Determinate terms for robbery were stayed for both defendants, pursuant to section 654.
Discussion I.
The Trial Court Did Not Err in Admitting into Evidence the Letter Addressed to Marquez; Even if the Trial Court Erred, the Error Was Harmless.
Marquez argues the trial court erred under Evidence Code section 352 by admitting a letter addressed to Pecker, dated March 10, 2003, and found at Ortega’s house, because the letter had little if any probative value, and was highly prejudicial. The trial court’s ruling under Evidence Code section 352 is discretionary, and “‘“must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]”’ [Citation.]” (People v. Williams (2008) 43 Cal.4th 584, 634 635.)
The letter in question reads as follows: “Pecker— [¶] Check this out homie I just thought I would shoot you a few lines to say Q.Vo. Also to let you know that me and Crow are here at Chino West representing that Flats life to the fullest. You know how we do it. The homie Crow should be touching down this month and he’ll get at you about a couple of things that need to be taken care of. So keep focused and try not to fuck with that shit to[o] much. You know what I[’]m trying to get at right? I need a favor if you can do it. Right now me and Crow are doing pretty bad on the Serio side. So if possible look at with some Ferria. Whatever you can do will be highly appreciated. Well homie it[’]s about that time that I let you go with much love & respect [¶] Con tu homies [¶] Capone & Crow.”
The trial court concluded the letter was probative, because it tied Marquez, whose moniker was Pecker, to the house where the first part of the attack on Shaffer took place. The court further concluded the risk of prejudice was minimal: “There wasn’t anything particularly inflammatory other than the reference to Chino West.” Having reviewed the letter, we conclude the trial court did not abuse its discretion in determining the letter’s probative value outweighed its prejudicial effect, and therefore did not err in admitting the letter in evidence.
Even if the trial court had erred in admitting the letter, we conclude any error was harmless. Madril testified she heard shots, observed blood on the floor in the back room where she had last seen Shaffer with defendants, and saw Marquez return to Ortega’s house in Shaffer’s vehicle without Shaffer. Marquez was seen on a security video at a motel with Shaffer’s vehicle. Four days after Shaffer’s body was found, Marquez was involved in a police chase while driving Shaffer’s vehicle. It is not reasonably probable a result more favorable to Marquez would have been reached by the jury in the absence of the letter. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Marquez argues, “the prosecutor placed emphasis on the improperly admitted exhibit by arguing that [Marquez]’s gang nickname and tattoos corroborated the testimony of the prosecution’s main witness, Rebecca Madril.” Having reviewed the record, we conclude the exhibit was mentioned minimally (five lines within almost 20 pages of the transcript of the prosecutor’s closing argument), and no connection was made between Marquez’s moniker and any gang affiliation; the moniker was referred to only as a nickname.
II. The Trial Court Did Not Abuse Its Discretion by Refusing to Stay the Sentence on Defendants’ Carjacking Convictions Under Section 654.
Both defendants argue the trial court should have stayed their sentences for carjacking, pursuant to section 654. The Attorney General argues that because defendants had different objectives and intents when committing the crimes of murder and carjacking, the trial court properly declined to stay the carjacking sentences. The trial court’s implied finding that defendants harbored separate intents and objectives in committing the two crimes must be upheld if supported by substantial evidence. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336.)
Ortega argues that the sentencing judge, Judge Michael A. Smith, could not have made any implied findings regarding defendants’ intents and objectives because he did not preside at trial. Judge Smith did make implied findings by imposing consecutive sentences and by not staying the sentences on the carjacking convictions (as opposed to the robbery convictions, on which defendants’ sentences were stayed). The trial record supports Judge Smith’s implied findings.
Section 654 bars punishment for both felony murder and the underlying felony. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 708 709 [the defendant cannot be punished for felony murder and robbery where jury found, under section 190.2, subd. (a)(17), that murder occurred during commission of the robbery]; People v. Boyd (1990) 222 Cal.App.3d 541, 575 576 [where commission of felony, such as robbery, is statutorily defined element of felony murder, the defendant cannot be punished for committing both crimes]; People v. Lowe (1975) 45 Cal.App.3d 792, 794 795 [when the defendant shot the victims “in the course of robbing them” section 654 precluded multiple punishment for murder and robbery, or attempted murder and robbery]; People v. Mulqueen (1970) 9 Cal.App.3d 532, 547 [“The sentence resulted in double punishment for one act for the reason that the act of robbery is the same act which made the homicide first degree murder”].)
This case differs from those cited ante, because there was no finding that the murder of Shaffer occurred during the commission of the carjacking, and the evidence supported the trial court’s implied finding that defendants did not murder Shaffer in the course of committing the carjacking.
“A conviction for carjacking requires proof that (1) the defendant took a vehicle that was not his or hers (2) from the immediate presence of a person who possessed the vehicle or was a passenger in the vehicle (3) against that person’s will (4) by using force or fear and (5) with the intent of temporarily or permanently depriving the person of possession of the vehicle. [Citations.]” (People v. Magallanes (2009) 173 Cal.App.4th 529, 534.) Defendants took the Dodge Durango from Shaffer by force or fear at the time Shaffer got out of the vehicle. The crime of carjacking was completed at that moment. Murdering Shaffer by shooting him in the head after the carjacking was completed involved a separate intent and objective.
As defendants point out, the prosecutor argued that the jury could find defendants guilty of felony murder if it found defendants shot Shaffer to effectuate the crime of carjacking. The prosecutor also argued, and the jury was instructed, that defendants could be found guilty of murder if they acted with malice aforethought. The jury could have found defendants guilty under either theory. “As a general rule, the sentencing court determines the defendant’s ‘intent and objective’ under section 654. [Citation.] ‘In sentencing pursuant to Penal Code section 654, the trial court retains discretion to impose punishment for the offense that it determines, under the facts of the case, constituted the defendant’s “primary objective”’ keeping in mind the overall purpose of section 654. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.) To shoot Shaffer twice in the head was far more force than was necessary to complete the carjacking, as Shaffer had already suffered two nonlethal gunshot wounds and was blindfolded. “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and more sinister goal than mere successful commission of the original crime.... [¶]... [¶] [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
III.
Marquez’s One year Sentence Enhancement Under Section 667.5 Was Unauthorized.
Marquez argues, and the Attorney General concedes, that the trial court incorrectly imposed both a serious felony prior sentence enhancement (§ 667, subd. (a)(1)), and a prison prior sentencing enhancement (§ 667.5, subd. (b)) based on the same underlying conviction. When multiple statutory sentencing enhancement provisions are available for the same prior conviction, only one sentence enhancement may be imposed. (People v. Jones (1993) 5 Cal.4th 1142, 1150.) We remand and direct the trial court to strike the one year sentence enhancement under section 667.5, subdivision (b).
IV.
The Trial Court Properly Addressed the Fact Judge Ferguson Was the Prosecutor in an Earlier Case Against Marquez.
During the bifurcated proceedings on Marquez’s prior convictions, Judge Ferguson realized that, as a deputy district attorney, he had signed Marquez’s written guilty plea to his 1995 robbery conviction. Judge Ferguson granted Marquez’s motion for a mistrial as to the prior conviction allegations, recused himself, and trial on the prior conviction allegations was referred to Judge Smith. Judge Smith conducted the court trial on the prior conviction allegations, heard and denied Marquez’s motion for a new trial based on Judge Ferguson’s involvement in the case, heard and denied a motion for a new trial based on alleged juror misconduct, and conducted Marquez’s sentencing hearing.
“If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.” (Code Civ. Proc., § 170.3, subd. (b)(4).)
The trial court did not err in denying Marquez’s motion for a new trial. Marquez concedes that no one involved in the case, including Judge Ferguson, was aware of Judge Ferguson’s involvement in the earlier criminal matter involving Marquez until the court trial on Marquez’s prior convictions began. Marquez has failed to establish actual bias or that Judge Ferguson was not impartial during the jury trial. Marquez has therefore failed to establish good cause for setting aside the convictions reached by the jury before the grounds for disqualification became known.
Disposition
The judgment against Ortega is affirmed. We direct the trial court to strike the one year sentence enhancement imposed against Marquez under section 667.5, subdivision (b), and to prepare a modified abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation, Division of Adult Operations. The judgment against Marquez is affirmed as modified.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.