Opinion
C083240
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CR20145271 & SF127256A)
A jury found defendant Nicholas Medina guilty of first degree murder (Pen. Code, § 187), premeditated attempted murder (§§ 664/187), and shooting at an inhabited dwelling (§ 246), and sustained a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) and an armed with a firearm allegation (§ 12022, subd. (a)(1)). The trial court sentenced defendant to life without the possibility of parole plus 17 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in failing to give an accomplice instruction, there was insufficient evidence to support lying in wait as a theory of first degree murder or a special circumstance, the lying-in-wait special circumstance violated the federal Constitution by being indistinguishable from the lying-in-wait theory of first degree murder, and imposition of sentence on the shooting at an occupied building count should have been stayed pursuant to section 654. We shall affirm.
BACKGROUND
Jermaine Williams was at his Stockton home on the morning of March 2, 2014. Williams's friend Renard T. (aka "Assassin") lived with his girlfriend Vanessa Pride in an apartment in the home's detached garage. Pride, Pride's brother-in-law, Deacon F., and Renard T. were smoking methamphetamine in the garage apartment when Pride heard yelling and banging on the gate leading to the front yard.
Pride heard Renard T.'s name being yelled and Renard T. arguing with another person. She opened the garage door and saw Renard T. running into the yard through the gate, which was partially opened. Someone seemed to be trying to get in the gate. Renard T. threw a plastic chair at the gate, ran to Pride, and shoved her back into the garage. Renard T. was shot as he went to shut the garage door. Pride heard more shots as things broke all around. Deacon F. told Pride to get down and pushed her to the floor. After the shooting stopped, Pride turned to Deacon F. and saw him take his last breaths, spitting blood out of his mouth. She called 911.
Pride recalled that Renard T. did not have a hammer or anything else with him when he was outside or when he returned. She heard Renard T. arguing on the phone with someone the night before the shooting.
Renard T. could recall little of the shooting other than he got shot in the leg when he was in the yard, he was not sure who shot him, and did not expect any confrontation when he went out that morning. Police spoke to Renard T. in the intensive care unit on the day after the shooting. Renard T. told the police that in the morning, a kid had called him about Williams's brother being caught in "some sexual shit or whatever." Later, Renard T. was at home in the garage when he heard the kid who had called him yelling at the gate. The kid was yelling profanities and challenging Renard T. to a fight.
Renard T. told the police he was surprised to see this kid in his front yard and challenged the person to a fistfight. He ran away after the person said, "Bust." Asked what the term "bust" meant, Renard T. replied, "When somebody says bust, I'm about to fight you and you start yelling 'bust,' okay, something is probably gonna happen, like bust what." He elaborated, "I ain't got nothing to bust back with. I need to get the fuck out of the direction." Renard T. heard objects getting hit by bullets as he ran to the garage. He was unsure of the direction the shots came from.
Williams was defendant's friend. He was in the house with his friends on the morning of the shooting. Looking up at his home's surveillance screen, Williams saw defendant in the front yard with his fists up, as if he was fighting someone. Defendant lifted his arm and waived, as if he was gesturing someone to come over. As he went outside to confront defendant, Williams heard 9 to 15 shots and someone tackled him.
Williams talked on the phone with defendant the night before the shooting. Defendant was angry with Williams's brother Kabori Dines, whom he accused of being a child molester. Defendant told Williams, "[y]ou don't want it with me," with "it" meaning trouble.
Defendant lived in his cousin Georgia Kessell's home with Dines at the time of the shooting. Kessell kicked Dines out of the house for taking items that were missing from her home. She had blamed defendant for the missing items. After determining Dines took them, Kessell told defendant he had been wrongfully accused because she saw the items on Dines.
Chavonne Maxwell was in Williams's house and saw Renard T. on the surveillance screen. Renard T. was facing the street and backing into the yard through the partially open gate. He was holding up his pants with both hands, and was not carrying anything. A person wearing black clothing and carrying what looked like an AK-47 assault rifle walked up the driveway and started shooting in the garage. After the shooting, Pride stood outside the garage door screaming. In a photo lineup, Maxwell identified defendant as a person she saw on the surveillance screen.
Catherine Valdez was walking to work on the day of the shooting when she saw a dark car pull up to the Williams house. A tall, slender Hispanic person got out of the car and went to the gate, where a man let the person in. A man wearing all black then left the car and went to the gate, which he pushed hard. A man wearing red also exited the car. Valdez heard shooting and then saw both men get back in the car. The slender person ran, but Valdez was not sure whether that person got into the car.
Valdez first testified the person was female but later admitted the person could be male or female. --------
Spencer Barker heard shooting and then saw a black sedan race by his house. He gave police a video of the car from a neighbor's surveillance camera.
As Dennis Ring drove by the house, he saw a man shooting a rifle and wearing a red puffy jacket. A car with a door open to the sidewalk was near the side of the house. He gave the police a partial license plate for the car, "7D."
Bonnie Sharlow-Peters was driving past the Williams house when she saw a Hispanic male carrying a rifle as he was hunched over and running to the fence. A tall, thin Hispanic man was leaning against a car in the driveway. She heard gunfire after driving about a half block.
Officers arriving at the scene found Renard T. face up and lying partially across Deacon F., who was also face up. Deacon F. was dead, having been shot in the back. Renard T. sustained a gunshot wound that resulted in a fractured left leg and an injury to the major blood vessel of the left leg. Neither man had anything in his hands and there were no firearms present. There was a butter knife in the floor, and a hammer was in the back pocket of a pair of jeans lying on the floor.
Rosio G. was defendant's friend. She testified under a use immunity agreement because the authorities had pictures of her car. She did not want to testify because she lived alone with her daughter and feared for her daughter's safety.
At the time of the shooting, Rosio G. owned a black 2006 Buick with the license plate that included the number 7 and the letter D. She lived with Victor Espinoza at the time of the shooting and was married to him at the time of the trial. Espinoza had access to her car, but she was always with him if he used it. Her car was not used in the shooting. She and Espinoza were at her sister's house at some point in March 2014. She could not remember if she spoke to defendant on the morning of the shooting. Espinoza did not have access to her phone.
Defendant sent text messages to his girlfriend and to other phone numbers before the shooting. Among the messages, defendant stated, "THZ these nigga about to get hit with the K," "Got pick the K first," and "Want to get picked up, cuz I'll pick up the chop first." Several calls were made between defendant's phone and the number associated with Rosio G.'s phone in the hours before the shooting. Calls were also made between Renard T.'s and defendant's phones.
Testifying on his own behalf, defendant said he was good friends with Williams at the time of the shooting. He found out Dines was stealing from Kessell, so he assaulted Dines and threw him out of the house. Dines's phone was left behind, so defendant wound up using it to talk with Williams. Matters became heated when he used the phone to talk to Williams the next morning. Defendant felt threatened during the conversation.
After this, defendant went to his friend Max's house, where he called Rosio G.'s phone and spoke to Espinoza. Espinoza came over in a black car; defendant, Espinoza, and Max went to Williams's house in the car. Defendant went there to engage in a fight, but he never brought a gun. He went with the two other men so he would not get jumped. Upon arrival, defendant got out of the car and tried to open the gate. Renard T. came out and met him; they got into a heated argument when defendant recognized Renard T. as the person he had argued with on the phone.
After Renard T. opened the gate, both men squared up as if readying for a fight. When Renard T. lifted his shirt, defendant saw something that looked like it could be a gun, so he lifted his hands and backed away. He turned his head and ducked after hearing a gunshot.
After defendant saw Espinoza was shooting, he ran back to the car and got in the front passenger seat. Max was in the driver's seat and Espinoza got in the back of the car. They then drove off. The text to his girlfriend referred to him going to town to sell methamphetamine and the reference to "nigga" was a person named Andy.
A defense investigator testified that "strapped" usually meant carrying a concealed firearm. The term "K" had several meanings, including crystal methamphetamine, a kilo of drugs, or an AK-47 assault rifle. "Chop" referred to a weapon, a piece of rock cocaine, or a chop shop.
DISCUSSION
I
Defendant contends the trial court erred in failing to instruct sua sponte on accomplice testimony.
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
"When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicating the defendant must be viewed with caution and corroborated by other evidence. [Citations.]" (People v. Houston (2012) 54 Cal.4th 1186, 1223.)
"The definition of an accomplice 'encompasses all principals to the crime including aiders and abettors and coconspirators.' [Citation.]" (People v. DeJesus (1995) 38 Cal.App.4th 1, 23 (DeJesus).) "To be an accomplice, one must act ' "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense." ' [Citation.]" (Ibid.)
"Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citations.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 90 (Stankewitz).) A defendant bears the burden of proving a witness's status as an accomplice by a preponderance of the evidence. (DeJesus, supra, 38 Cal.App.4th at p. 23.)
Defendant argues the evidence would allow the jury to determine Rosio G. was an accomplice to his crimes. Recognizing that Rosio G., through her testimony, denied any role in the crime, defendant asserts that his testimony "directly contradicted" her version. He refers to his testimony that, after arriving at Max's house, he called Rosio G.'s phone to contact Espinoza to inform him of defendant's plan to fight, Espinoza agreed with the plan, drove to Max's house in a black car, and then took defendant and Max in the car to the planned fight. He additionally points out that witnesses placed a car consistent with hers at the shooting, and telephone records show significant contact between defendant and the phone associated with Rosio G. the hour before the shooting. Finally, he claims the fact that Rosio G. "testified at trial under a use immunity agreement provides virtually conclusive confirmation that evidence presented at trial supported a theory that she acted as an accomplice to the shooting."
While there is evidence Rosio G.'s car was used to drive defendant, Espinoza, and Max to the shooting, there is no evidence that Rosio G. knew of the criminal purpose facilitated by the use of her car or intended to aid it through her car. Her testifying under use immunity does not render her an accomplice per se. "The fact that a witness has been charged or held to answer for the same crimes as the defendant and then has been granted immunity does not necessarily establish that he or she is an accomplice. [Citations.]" (Stankewitz, supra, 51 Cal.3d at p. 90.) In light of the paucity of evidence regarding Rosio G.'s knowledge of defendant's plan or her intent to support it, the trial court was under no duty to give an accomplice instruction regarding her testimony.
Even if we were to accept defendant's argument that the court should have given the accomplice instruction, the error would be harmless. Rosio G.'s testimony was tangential to the prosecution's case. She did not place defendant at the scene or witness the shooting. Her testimony tied defendant to herself and Espinoza. She admitted owning a black Buick which was implicated in the crimes by the testimony of witnesses who saw a black car at the shooting and by one witness who gave a partial license plate that could match Rosio G.'s Buick. Also, defendant repeatedly called a number associated with her phone shortly before the shooting. Defendant's testimony corroborated parts of this testimony, that he knew Espinoza and Rosio G., that he called her phone to talk to Espinoza, and that Espinoza used a black car to drive to the scene of the shooting.
"It has been recognized that the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record. [Citations.]" (People v. Miranda (1987) 44 Cal.3d 57, 100.) Such evidence " ' "may be slight and entitled to little consideration when standing alone," ' " and the evidence may be entirely circumstantial. (Ibid.) "Moreover, ' "only a portion . . . of the accomplice's testimony need be corroborated" ' [citation] and it is ' "not necessary that the corroborative evidence . . . establish every element of the offense charged." [Citations.]' [Citation.]" (Ibid.) The evidence need only " ' " 'tend[] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth.' " ' " (Ibid.) Such is the case here. Any error in failing to give an accomplice instruction is harmless under any standard.
II
Defendant contends there is insufficient evidence to support lying-in-wait either as a theory of first degree murder or as a special circumstance.
In determining the sufficiency of the evidence, we ask 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.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"[T]he lying-in-wait special circumstance require[s] an intentional killing, committed under circumstances that included a physical concealment or concealment of purpose; a substantial period of watching and waiting for an opportune time to act; and, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. [Citations.] The purpose of the watching and waiting element is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length ' "of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation." ' [Citation.] ' " 'The element of concealment is satisfied by a showing " 'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.' " ' " ' [Citation.] The factors of concealing murderous intent, and striking from a position of advantage and surprise, 'are the hallmark of a murder by lying in wait.' [Citation.]" (People v. Stevens (2007) 41 Cal.4th 182, 201-202, fns. omitted; see People v. Stanley (1995) 10 Cal.4th 764, 795 [" 'a surprise attack on an unsuspecting victim from a position of advantage' "].)
The jury was instructed on premeditation and lying-in-wait as theories of first degree murder. The jury was given the same definition of lying-in-wait for the special circumstance except that an additional element, intent to kill, was added for the special circumstance. The prosecution's theory was that defendant lured Thomas to come out of the house by yelling at him to come out, and then lured him into a position where Espinoza could shoot him.
Defendant relies on Renard T.'s testimony that the individual whom he was going to fight in the yard induced Thomas to run after he used the term "bust" to Thomas because, according to Thomas, "I ain't got nothing to bust back with. I need to get fuck out of the direction." He interprets this testimony as Renard T.'s understanding the person saying he was armed. Since the evidence shows Renard T. was shot as he was running away into the garage, defendant concludes his conduct before the shooting, warning Renard T. that he was armed, negates the idea that he concealed his purpose from Renard T. before the shots were fired.
Viewed in the light most favorable to the judgment, the evidence shows that defendant induced Renard T. to come out and engage in a fistfight with him by banging on the gate, yelling, and, when Renard T. came out, putting up his fists. Defendant's accomplice ran crouched to an area outside the gate while carrying an assault rifle. After luring Renard T. to the gate, defendant waived for his accomplice to start shooting. Even if the jury were to credit Renard T.'s testimony regarding defendant's use of the term "bust," defendant's actions placed Renard T. at a potentially fatal disadvantage by inducing him to come out near to defendant' accomplice, who was armed, ready, and willing to shoot at the unsuspecting Renard T. The fact that Renard T. might have been warned just before the shooting started did not negate the surprise attack or position of advantage defendant obtained through his prior actions. Substantial evidence supports the special circumstance and theory of first degree murder.
III
Defendant contends the lying-in-wait special circumstance was indistinguishable from the same theory of first degree murder and therefore violates the Eight Amendment of the federal Constitution. His claim is based on United States Supreme Court precedent requiring that a state must define a capital offense in a manner that is objectively distinguishable from ordinary murder so the death penalty is not imposed in an arbitrary manner. (See Zant v. Stephens (1983) 462 U.S. 862, 874 [77 L.Ed.2d 235, 248]; Gregg v. Georgia (1976) 428 U.S. 153, 188-189 [49 L.Ed.2d 859, 883].) Since defendant did not receive the death penalty, these cases and defendant's claim are inapplicable to the case before us. Even if we were to consider this claim, it has been rejected by the California Supreme Court in the context of capital cases. (People v. Casares, supra, 62 Cal.4th at p. 849.) As defendant, who raises this issue to preserve it for federal review recognizes, we are bound to follow that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV
Defendant contends the trial court should have stayed imposition of sentence on the shooting at an inhabited dwelling count pursuant to section 654 rather than imposing a concurrent term.
Section 654, subdivision (a) provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of this statute "is to insure that a defendant's punishment will be commensurate with his culpability. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654 "prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective. [Citation.]" (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) But where a defendant acts with "multiple criminal objectives that [a]re independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citation.]" (Ibid.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Defendant notes the trial court imposed a concurrent term because the crimes were not predominately independent of each other, did not involve separate acts, and were committed so close in time that it involved a single period of aberrant behavior. He contends this crime was part of a single objective, an intent to murder Thomas, and therefore sentence on the shooting at an inhabited dwelling count should have been stayed under section 654.
"There is a multiple victim exception to Penal Code section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective. [Citation.] An assailant's greater culpability for intending or risking harm to more than one person precludes application of section 654. [Citation.]" (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.) The crime involved shooting into a dwelling where defendant's intended target, Renard T., his murder victim Deacon F., and Pride were located. Pride was a separate victim of the shooting at an inhabited dwelling count, so section 654 was inapplicable to it. Defendant's contention is without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.