Opinion
B280384
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR MEZA, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA431867) APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed and remanded with directions. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Oscar Meza (defendant) appeals from the judgment entered against him, contending that accomplice testimony was insufficiently corroborated, that the trial court erred in staying, rather than striking, a 10-year gang enhancement, that the court erred in refusing to award any presentence custody credit, and that the matter should be remanded for resentencing under the recently amended Penal Code section 12022.53, subdivision (h). Finding that defendant's challenge to the accomplice testimony is without merit, we affirm the judgment of conviction, but vacate the sentence and remand for resentencing with directions.
The Legislature amended Penal Code section 12022.53, subdivision (h), effective January 1, 2018, to give the sentencing court discretion to strike the firearm enhancement in the interests of justice. (See Stats. 2017, ch. 682, § 2.) All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
Defendant was charged with the first degree murder of Edgar De Jesus (De Jesus) in violation of section 187, subdivision (a) (count 1). The information alleged that in the commission of the crime, defendant personally and intentionally discharged a firearm, which caused the death of De Jesus within the meaning of former section 12022.53, subdivision (d). It was also alleged that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
Firearm enhancement allegations pursuant to section 12022.53, subdivisions (b) and (c) were later stricken, and the information amended by interlineation.
In count 2, defendant was charged with carrying a firearm capable of being concealed on his person, in violation of section 25400, subdivision (a)(2). Defendant entered a plea of no contest to count 2, and the matter proceeded to jury trial on count 1.
The jury convicted defendant of murder as charged, and found true the firearm and gang allegations. On January 24, 2017, the trial court sentenced defendant to 25 years to life in prison on count 1, plus 25 years to life due to the firearm enhancement. The court imposed and stayed the 10-year gang enhancement of section 186.22, subdivision (b)(1)(C). As to count 2, the court imposed a two-year concurrent term. The court also ordered defendant to pay mandatory fines and fees and victim restitution in the amount of $3,940. No presentence custody credit was awarded.
Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
Accomplice testimony
Prior to defendant's trial David Carranza (Carranza) was convicted of the murder of De Jesus, with true findings as to the gang and firearm enhancements alleged against him. From the age of 13 or 14, Carranza had been a member of the "tagging crew" F.T.C. (Fuck the Cops), with the nickname "Timer." F.T.C. was associated with the Highland Park (Highland Park) criminal street gang, which was a rival of the Avenues (Avenues) gang.
Carranza testified at defendant's trial that he socialized with members of Highland Park, and was a gang member in every respect, except officially, as he had never been "jumped in" to Highland Park gang. Carranza admitted that he "was looked upon as if" he was a member of the gang, had a gang member's mentality, and eventually began engaging in more serious crimes with his fellow taggers and members of Highland Park. In a 2009 juvenile adjudication Carranza was found to have committed assault with a deadly weapon, and in 2010, another adjudication was based upon a robbery. Because the Avenues was an enemy of Highland Park, it was also F.T.C.'s enemy, and Carranza was expected not to associate with members of Avenues or members of the tagging crew associated with the Avenues, F.O.E. (Fuck Our Enemies).
Carranza met defendant during the summer of 2011, through a friend of Carranza's friend, Angel, a member of F.T.C. whose brother was a member of Highland Park. Carranza introduced himself as Timer from F.T.C., and defendant gave his full name. They had a friendly conversation and thereafter Carranza and defendant socialized, often in the company of Desiree Alvarez (Alvarez), a friend of Carranza's sister. Eventually defendant told Carranza that he was a member of the Cypress Park gang (Cypress Park).
On December 21, 2011, Carranza and defendant were at a party attended mostly by members of Highland Park and F.T.C. There were few women there, and Carranza became bored and drunk. Around midnight defendant told Carranza that he had the keys to Alvarez's car, and the two left the party together. Carranza initially thought they would just drive around, have fun, and find girls to talk to. When defendant said he had a gun, they agreed to go to Avenues territory to look for rival gang members. Carranza saw De Jesus, who by his hairstyle and dress appeared to be gang related, walking with two women. After defendant and Carranza exchanged a look, defendant parked the car on Estara Avenue near Fletcher Drive. Both men got out and walked toward De Jesus and the two women. When they were within about 21 feet from the others, defendant yelled in a friendly manner, "Avenues." De Jesus screamed back "Avenues," in a joking manner. The two groups continued walking toward each other until they were about five or six feet apart. Defendant then drew a gun from his waistband and pointed it at De Jesus. Defendant hesitated, and De Jesus ran away. When De Jesus was about 21 feet away, defendant fired one or two shots at him. Both Carranza and defendant chased De Jesus, but lost sight of him. Defendant and Carranza kept running in the direction De Jesus had gone, with defendant running about 10 feet ahead of Carranza. After turning a corner, Carranza saw De Jesus lying face down in the street. Carranza stopped while defendant continued until he was directly above De Jesus. As defendant pointed the gun at him, De Jesus jumped up and struggled with defendant over the gun, but failed to gain possession of it. As they struggled defendant fired one or two times, hitting De Jesus in the side of his upper back. As De Jesus fell, defendant fired two or three more times. Carranza stood frozen. Defendant said, "Let's go, let's go," and they ran back to the car. Carranza described their mood as happy, as they drove away. They spoke with pride about what they had done and returned to the party, where they remained there for several hours. Carranza asserted that De Jesus was killed "[s]olely because he was an Avenues gang member."
About two weeks later Carranza was arrested and interviewed twice by detectives. He lied to them about almost everything. First he claimed to have been at a party that night and had not been involved in the murder. In a later interview the same day, after being told that a witness could place him at the scene, Carranza acknowledged having been there, but said he had nothing to do with the crime. Carranza did not tell the truth because he feared for his life and the lives of his family. He falsely said that he got too drunk at the party and was asleep in the backseat of his sister's friend's car when an unknown person drove the car, parked it, chased a man, and then ran back to the car after Carranza heard gunshots.
At Carranza's trial two years later he denied having taken part in the crime. He admitted knowing who the shooter was, but he refused to make an identification. Once Carranza was convicted and faced a sentence of 40 years to life in prison, he decided to cooperate with the authorities. Based upon his cooperation and the recommendation of the prosecutor, Carranza was sentenced to life in prison with a minimum parole eligibility period of 15 years.
Eyewitness testimony
Leticia Guerrero (Guerrero), De Jesus's girlfriend, testified that she was one of the two women walking with De Jesus the night he was shot. She had seen a dark, four-door car that looked like a Honda, drive slowly past them, and then observed two men approach. One said, "Avenues," and after De Jesus replied, "Avenues," one of the two men took out a gun and fired in De Jesus's direction. The men then chased De Jesus as he ran. It was dark, and she could not see the men's faces.
Maribel Sarabia (Sarabia) testified that she was the other woman with De Jesus and Guerrero. Sarabia had known Carranza while growing up and she recognized him as one of the two men who approached them. She did not recognize the other man and was unable to identify him. She recalled the other man saying something to which De Jesus replied he was from Avenues. She then heard Carranza say, "Shoot him." As the other man pointed a revolver at De Jesus, De Jesus ran away. Sarabia then heard gunshots. A short time later, she saw the two run back, get into their small four-door car, and drive quickly away. Carranza got into the passenger seat; the other man was the driver. Sarabia found De Jesus bleeding and no longer breathing. She later identified Carranza as the one who said, "Shoot him," but was unable to identify the other man.
De Jesus died of multiple gunshot wounds.
Norberto Luviano Salazar (Salazar) testified that the night of December 21, 2011, he was sitting in his parked car on Estara Avenue, near Fletcher Drive and Andrita Street, when a dark four-door Honda parked behind him. He observed two Latino men between 18 and 23 years old get out and walk away. Before long Salazar heard gunshots, and then saw the men return to the Honda, while two women on the street were crying. Although it was dark Salazar saw the faces of the two men and selected a photograph he believed was one of them from a photographic lineup. Los Angeles Police Detective Lisa Governo testified that Salazar selected Carranza's photo, while saying that he looked familiar.
Alex Galvez was walking to his car on Estara Avenue that night when he heard gunshots. He then saw the shadows of two people running toward Fletcher Drive and Andrita Street. He heard one of them say, "Let's go, let's go," or, "Go, go, go." The two people then got into a dark colored car and fled. Galvez heard screams, went to Fletcher Drive and saw two women kneeling by a body.
Other prosecution witnesses
Carranza's sister, Delmi Carranza (Delmi), testified that she had gone that night to the party with her brother. Also that night she saw defendant and her friend Alvarez, whom she knew to be boyfriend and girlfriend. Delmi had known defendant for about two months, and had seen him on several occasions with Alvarez. Defendant and Alvarez visited with her and Carranza at their house for a couple hours before she walked with other friends to the party. Alvarez and defendant went to the party in Alvarez's car, a charcoal gray Honda Accord. Alvarez usually carried her car keys on a lanyard around her neck, but that night Delmi saw defendant wearing them around his neck.
We use this witness's first name to avoid confusion with her brother.
At some point before midnight Delmi no longer saw Carranza or defendant. At approximately the same time, Alvarez asked Delmi whether she had seen defendant. Delmi testified that Alvarez seemed to think defendant may have left the party with another woman, who was also gone. Delmi saw both defendant and Carranza again later at the party, although she had not seen them return together. Delmi could tell something was wrong from Carranza's demeanor after he came back to the party.
Delmi testified that after defendant was arrested, Alvarez threatened Delmi in Instagram posts. Alvarez indicated that she wanted to kill Delmi's family and thought it was a disgrace that they were welcoming Delmi's new baby.
Alvarez had been interviewed twice by detectives prior to defendant's arrest. A portion of the video recording of her April 14, 2014 interview was played for the jury. Alvarez told Detective Governo that she, Delmi, Carranza and defendant all attended the party on December 21, 2011. She and defendant arrived together in her car, and defendant had her car keys all evening, except when he gave them to Carranza to store guests' purses in the car. Sometime during the evening defendant and Carranza left the party after telling her they were going to get some food. She added that they returned in less than 20 minutes, and "couldn't have done that in that time."
At trial, Alvarez testified that in 2011, while she and defendant were dating, she and Delmi were friends. Alvarez dated defendant during the summer of 2011, and they socialized occasionally with Delmi and Carranza. In December of that year, they all celebrated Alvarez's and Carranza's birthdays together. Alvarez's car at that time was a charcoal gray Honda, which defendant occasionally drove. She admitted that defendant had the keys to her car the night of the party.
Alvarez testified at Carranza's trial on January 13, 2014, when she was not in a dating relationship with defendant. By the time defendant was arrested in December 2014, Alvarez had given birth to defendant's child. By the time of his trial, she again considered defendant her boyfriend. Alvarez admitted that when she learned in December 2014, that defendant was a suspect in the murder, she was upset and posted messages on the internet blaming Carranza's family and referred to defendant as her husband.
Alvarez admitted that when Detective Governo asked her whether defendant left the party, she replied, "Yes. I remember saying yes because at one point we were looking for him." However, later in the trial, Alvarez testified that she did not remember saying that defendant had left the party, and that it was Carranza and Delmi who asked if they could go get food. Alvarez explained that they finally agreed that defendant and Carranza would go and defendant would drive her car. Alvarez testified later that Delmi and Carranza went to the fast food restaurant and defendant stayed at the party. A few minutes after that, Alvarez claimed that she told the police that defendant did not leave the party.
Officer Arshavir Shaldjian testified as a gang expert that De Jesus belonged to the Avenues gang. He explained that Cypress Park and the Avenues were "mortal enemies," and that Highland Park was an ally of Cypress Park. Defendant was a member of Cypress Park, while Carranza was a member of Highland Park. Officer Shaldjian testified that Cypress Park's primary activities included murder, attempted murder, and assaults with deadly weapons, and that the gang's primary targets were members of Avenues. It was possible that a Cypress Park member might pretend to belong to Avenues as a ruse to trap an Avenues member or to "put[] the heat on" the Avenues gang. In response to a hypothetical question that mirrored the facts of this case, Officer Shaldjian gave his opinion that the shooting was committed for the benefit of the Cypress Park gang.
Defense Evidence
Defendant presented a video recording of Carranza's interview given 15 days after the shooting, in which he lied to the police. Los Angeles Police Officers Juan Chavez, Ryan Lamar, and Arnel Asuncion each testified that Carranza had admitted to him that he was a member of Highland Park. Officer Asuncion testified that he conducted a traffic stop of a Honda Accord driven by defendant at about 2:30 a.m. the night of the shooting, and that Alvarez was one of several passengers.
DISCUSSION
I. Accomplice testimony
Defendant contends that his conviction must be reversed because the evidence was insufficient to corroborate the accomplice's testimony, resulting in a violation of section 1111 and the deprivation of this right to due process under the federal constitution.
Section 1111 provides, in relevant part: "A conviction cannot 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." A violation of the statute does not necessarily present a federal constitutional issue: "The federal constitutional requirement that sufficient evidence support every element of an offense does not require corroboration of accomplice testimony as a matter of course. [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 473.)
The trial court instructed the jury that if the crime was committed, then Carranza was an accomplice to the crime. The court also instructed as follows:
"You may not convict the defendant of murder based on the statement and testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: one, the accomplice's statement or testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice's statement or testimony; and three, that supporting evidence tends to connect the defendant to the commission of the crime. Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime."
"The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 986.) Thus, since defendant does not contend that the evidence was improperly admitted, it follows that the issue presented is whether the evidence reasonably tended to connect defendant with the commission of the crime.
Respondent observes that defendant does not dispute that the evidence established that two men participated in the murder, and one of them was Carranza. Witnesses Guerrero, Sarabia, and Salazar all testified that there was a second man. Sarabia, who knew Carranza personally, testified it was the second man, not Carranza, who had the gun and fired it, and who then drove away with Carranza in the passenger seat. Salazar testified that not long before hearing gunfire, he observed two Latino men park a dark-colored Honda behind him, and then return to the car soon after the gunfire.
Corroborating evidence may be circumstantial so long as it tends to connect the defendant with the crime. (People v. McDermott, supra, 28 Cal.4th at p. 986.) Thus, a defendant's connection to the crime may be shown with evidence of motive, opportunity, and a discredited alibi. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1022.) Here, there was ample such evidence. Evidence of motive is found in the gang expert's testimony that defendant was a member of Cypress Park, that De Jesus belonged to Avenues, and that Cypress Park and Avenues were "mortal enemies." In addition, Cypress Park's primary activities included murder, attempted murder, and assault with deadly weapons. The gang's primary targets were Avenues gang members. Evidence of opportunity included Delmi's testimony that Alvarez and defendant went to the party in Alvarez's car, a charcoal gray Honda Accord, and that evening defendant wore the keys to the car on a lanyard around his neck. Alvarez testified that her car was a charcoal gray Honda, and that defendant had the keys to her car that night. Sometime before midnight, Delmi and Alvarez could not locate defendant or Carranza, and believed they may have left the party. Delmi saw both defendant and Carranza later at the party, and could tell from Carranza's demeanor that something was wrong. Finally, Alvarez's apparent attempt to create an alibi for defendant, her boyfriend and child's father, was discredited with her own contradictions, by claiming alternatively: that it was Delmi and Carranza who left the party to get food and that defendant stayed at the party; that she told the police that defendant did not leave the party; that she told Detective Governo that defendant left the party and they were looking for him; and that she told detectives that defendant was gone less than 20 minutes, and she did not think that was enough time to commit the crime.
Defendant argues that such evidence is insufficient because of conflicting evidence regarding defendant's gang membership; no eyewitness identified defendant at the crime scene; there was no photograph or video of defendant committing the crime; no admissions by defendant, no physical evidence linking him to the crime; and no evidence that he possessed a gun. He also argues that the evidence was insufficient because someone else might have left the party with Carranza in Alvarez's car or in another dark, four-door car. We disagree. The purpose of corroboration is to establish the reliability of accomplice testimony, not to prove the defendant's connection to the crime beyond a reasonable doubt; indeed, the evidence "'may be slight and entitled to little consideration when standing alone.' [Citations.]" (People v. Tewksbury (1976) 15 Cal.3d 953, 968-969.) Corroborating evidence "is sufficient if it substantiates enough of the accomplice's testimony to establish his credibility." (People v. McDermott, supra, 28 Cal.4th at pp. 1000-1001.) We conclude that was achieved here.
II. Unauthorized gang enhancement
Defendant contends that the trial court erred in staying, rather than striking, a 10-year gang enhancement to count 1, under section 186.22, subdivision (b)(1)(C). First degree murder is punishable by 25 years to life in prison and is not subject to the 10-year enhancement of section 186.22, subdivision (b)(1)(C). (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.) Defendant asks that we modify the judgment to strike the 10-year gang enhancement. (See People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405.) Respondent asks that we direct the trial court to perform that task. As we vacate the sentence and remand for resentencing as explained in another section, we also direct the trial court to strike the 10-year gang enhancement.
III. Presentence custody credits
Defendant contends that the trial court erred in refusing to award any presentence custody credit. Although the probation report shows that defendant was arrested December 3, 2014, and defense counsel represented at sentencing on January 24, 2017, that defendant had spent 796 days in custody, the trial court refused to award credit for that time. Respondent agrees that the court erred.
Under section 2900.5, all defendants receive credit for the actual days spent in custody. Those convicted of murder are not entitled to conduct credits. (People v. Johnson (2010) 183 Cal.App.4th 253, 289.) As we vacate the sentence and remand for resentencing, as explained in the next section, we also direct the trial court to calculate and award the actual days of presentence custody credit due defendant.
IV. Amended firearm enhancement
In supplemental briefing, defendant has requested a remand for resentencing under the recent amendment of section 12022.53, subdivision (h), which now gives the trial court the discretion to strike that section's firearm enhancement in the interests of justice. (See Stats. 2017, ch. 682, § 2.) Defendant was sentenced to a consecutive term of 25 years to life in prison pursuant to section 12022.53, subdivision (d), when the firearm enhancement was mandatory. The amended subdivision (h) now reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
As respondent concedes, the amendment applies retroactively to judgments which are not final on January 1, 2018, under the reasoning of In re Estrada (1965) 63 Cal.2d 740, because the amendment gave the trial courts new sentencing discretion to lessen punishment. (See People v. Brown (2012) 54 Cal.4th 314, 324; People v. Francis (1969) 71 Cal.2d 66, 75-76.) In general, when new statutory discretion is applied retroactively or the trial court was unaware of its discretion, a defendant is entitled to resentencing. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), respondent points to the callousness of defendant's crime and contends that remand would be inappropriate here, "because no reasonable court would exercise its new discretion to strike [defendant's] firearm enhancements." We find no such reasoning in that case, and respondent has cited no other authority for such a rule. In Gutierrez, after the defendant's sentencing and during the pendency of his appeal, the California Supreme Court published its opinion in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, holding that trial courts had discretion under section 1385 to strike prior convictions alleged under the Three Strikes law. (Gutierrez, supra, at p. 1896.) The appellate court considered Romero but declined to remand for resentencing, reasoning that no purpose would be served by a remand, as the following comment by the sentencing court showed that the court would not have exercised its discretion in the defendant's favor: "'[T]his is a situation where I do agree with [the prosecutor], there really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.'" (Ibid.)
As the Gutierrez court recognized, resentencing is required "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion" in the defendant's favor. (Gutierrez, supra, 48 Cal.App.4th at p. 1896, citing Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Only where "'the record shows the trial court would not have exercised its discretion even if it believed it could do so,'" would remand be denied as an "'idle act.'" (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
Respondent has failed to point out any comment or action by the trial court which would suggest futility in returning the matter to the trial court for the opportunity to exercise its discretion under the amended statute. Respondent instead asks that this court decide what a reasonable sentencing court would do, based not on anything said or done by the trial court, but on our own assessment of the circumstances of the crime. When a trial court has failed to exercise discretion under section 1385, "'[a]ppellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss.' [Citation.]" (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.) "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.]" (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.)
Here, the trial court made no comments at sentencing. Further, there were no sentencing memoranda and no reason for defendant to present evidence in mitigation on the issue of the then mandatory firearm enhancement. As defendant had no prior felony convictions, no motion was filed under Romero to strike them, which might have included such evidence. In sum we have found no indication by the trial court how it would have exercised its discretion. Therefore we must vacate the sentence and remand for the limited purpose of allowing the trial court to consider this issue. We express no opinion as to how the trial court should exercise its newly granted discretion on remand.
DISPOSITION
The judgment of conviction is affirmed, and the sentence is vacated. The matter is remanded so the trial court may exercise its discretion under section 12202.53, subdivision (h). On remand, the trial court is directed to calculate and award presentence custody credit and to strike the 10-year enhancement of section 186.22, subdivision (b)(1)(C). The trial court shall prepare an amended abstract of judgment reflecting the presentence custody credit awarded and other modifications, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT