Opinion
D073862
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. HECTOR J. MEZA, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1102812) APPEAL from a judgment of the Superior Court of San Bernardino County, Jon D. Ferguson, Judge. Affirmed as modified. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL BACKGROUND
The District Attorney of San Bernardino County filed a second amended complaint charging Hector Meza with the first degree, premeditated murder of Maria Banuelos. (Pen. Code, § 187, subd. (a), count 1). Four special circumstances were alleged with respect to the murder charge: (1) it was committed during the commission of the crime of arson within the meaning of section 190.2, subdivision (a)(17)(H); (2) it was committed while engaged in the commission of mayhem within the meaning of section 190.2, subdivision (a)(17)(J); (3) it was intentional and involved the infliction of torture within the meaning of section 190.2, subdivision (a)(18); and (4) it was committed by means of lying in wait within the meaning of section 190.2, subdivision (a)(15). Prior to trial, the People dismissed the special circumstances allegation under section 190.2, subdivision (a)(17)(H), arson.
All further statutory references are to the Penal Code.
In addition, defendant was charged with aggravated mayhem (§ 205, count 2), with torture (§ 206, count 3), and with arson causing great bodily injury for willfully and maliciously setting fire to Banuelos (§ 451, subd. (a), count 4).
On December 1, 2016, a jury found defendant guilty of counts 1 through 4. The jury also found true all three special circumstances alleged in count 1.
Codefendants Genesi Ramirez, Robert Zapata, and Johnny Hernandez were also charged with counts 1 through 4. They were not tried with defendant and are not part of this appeal.
On January 4, 2017, defendant was sentenced to life in prison without the possibility of parole. He filed a timely notice of appeal.
We affirm the judgement as modified.
FACTUAL BACKGROUND
As recited by both defendant and the People, the facts surrounding the murder of Banuelos are horrific. In the early morning hours of October 22, 2011, Banuelos was viciously beaten and set on fire. This incident occurred outside her apartment, within the vision and hearing of her 15-year-old son and her 13-year-old daughter, both of whom raced outside to help their mother. Banuelos died from her injuries. The pathologist testified Banuelos had extensive second and third degree burns on about 90 percent of her body, which were consistent with combustible fluid being thrown on her. She also had three blunt force injuries to the top of her head. Banuelos was in a coma for nearly two days before she died of multiple organ failure due to complications from the burns.
Defendant's principal argument is that his conviction should be reversed because the trial court prejudicially erred in instructing the jury as to the testimony of codefendant Ramirez. Specifically, he argues the trial court should not have instructed the jury with CALCRIM 301 because it implied both the inculpatory and exculpatory testimony of Ramirez required corroboration. Because of this, we present here the testimony of Ramirez as it relates to defendant's involvement in the murder of Banuelos.
Originally, Ramirez was charged with first degree, premeditated murder, aggravated mayhem, torture, and arson causing great bodily harm, as noted. She pled guilty to voluntary manslaughter in exchange for a prison term of 15 years 8 months. It was also part of the plea bargain that she would testify fully and truthfully about the murder.
About a year before the murder, Ramirez met defendant at a nightclub in Ontario, where he offered her a job transporting drugs from Mexico into the United States. She expressed interest but never did a job for him. After that, she saw defendant about once a month and talked to him a lot on the phone and by texts. An ongoing topic of discussion that made defendant angry and caused him to yell over the phone was a woman he referred to by "bitch," or in Spanish by "fucking girl." Defendant told Ramirez the woman was an ex-girlfriend. He said she kept "bugging him." He was frustrated with her and wanted to get rid of her. At the nightclub, defendant pointed out Banuelos to Ramirez as his ex-girlfriend.
Defendant also told Ramirez he wanted to get rid of Banuelos because once when she had worked as a waitress in a nightclub in Riverside, she had put a "roofie" in the drink of the daughter of his narcotics boss (a higher up). This resulted in defendant's boss's daughter getting raped in the parking lot of the nightclub, and the nightclub then shutting down.
In April 2011, Ramirez and her then boyfriend met with defendant at a shopping center off Haven Street. Defendant drove them to Banuelos's apartment. When they got to the apartment, defendant asked Ramirez if they wanted to make some money. He said Banuelos would be coming home from work about 4:00 in the morning. He showed Ramirez where the attack might take place and said they were going to "beat her and burn her." Defendant wanted Ramirez's boyfriend to beat Banuelos and wanted Ramirez to stand on an upper floor of the apartment and throw acid on Banuelos. Defendant said he would supply the acid. Defendant showed them exactly where they would stand and the route by which they would leave. Ramirez did not commit to doing the crime. She told defendant she would call him.
About a month before Banuelos was murdered, Ramirez again met with defendant, this time in a drugstore's parking lot in Ontario. Jonathan Zuniga, Ramirez's new boyfriend, accompanied her. Defendant told them Banuelos had moved into a new apartment building. He took them to the new apartment to show them where she lived. He told them he was going to try to get her to come out of the apartment so Ramirez and Zuniga could then go into the apartment and take items like laptops, clothing, and a hairbrush. At the time, defendant offered to sell them a gun. They declined. Later, he contacted Ramirez and asked her if she knew anyone that wanted to burn down an apartment building.
On October 21, 2011, Ramirez was with Zuniga at Ramirez's house. They were smoking methamphetamine. At the time, Ramirez was 20 years old. Late that night, about 10:00 or 11:00 p.m., Ramirez received a call from defendant. After they talked, Ramirez and Zuniga started driving to Ontario to meet up with defendant. Ramirez was the driver. Although defendant did not specifically mention Banuelos, Ramirez speculated the call had something to do with her. Defendant told Ramirez that he was apprehensive to talk over the phone because "they" might be recording them. Defendant gave her driving directions over the phone.
Ramirez drove to a parking lot off the freeway where she recognized defendant's car. She pulled her car up next to defendant's and saw defendant had three other men with him. While parked they rolled down the window and defendant talked to Zuniga. He asked Zuniga if he wanted to be a look out because they were going to assault someone. Defendant explained he was going to call Banuelos so she would come outside and they were supposed to assault her until she was unconscious. Zuniga agreed to be the look out. Defendant took them to the same apartment complex he had shown them a month or so earlier. He also showed them the location across the street from the apartment where they were to wait and pick up the men after the assault. Ramirez understood the victim was going to be Banuelos. However, when a police car was spotted nearby, they called off the attack and they went back to the shopping center parking lot. There, defendant told them they were going back to the apartment. Before that was to occur, Ramirez and Zuniga went to buy $20 worth of gasoline to put in Ramirez's car.
Ramirez and Zuniga drove back to the parking lot. Defendant was there along with the three men. They again drove to the apartment and the three men got out of defendant's car. Zuniga got out of Ramirez's car. Defendant then left and stopped his car a short distance away. Ramirez drove up to defendant's car and defendant had her follow him so he could show her where she should wait. They both left the complex, with Ramirez following defendant to an alley at a nearby shopping center.
Defendant promised Ramirez "a big amount of money" for helping. He also said he was very appreciative for the help.
In the alley, Ramirez backed up her car, leaving the car doors opened as instructed by defendant. At that time, Ramirez knew Banuelos was going to be assaulted and beaten. Ten or 15 minutes later, Zuniga and the three men came running back to Ramirez's car. One of the men was very aggressive, telling her to "hurry up" and to "step on the gas." Ramirez was told, "shut up bitch" and "get out of here." Ramirez did not know where to go. The men, who were very nervous, gave her directions to the freeway. Once on the freeway, Ramirez called defendant and defendant told her which freeway to take to Colton. Once in Colton, Ramirez dropped the three men off in a residential area, and they took off running. Zuniga stayed with Ramirez and told her what had happened.
Zuniga told Ramirez that he and the three men confronted Banuelos outside her apartment. They went up to her and either asked her for a piece of gum or for the time. One of the men beat her with his bare hands. Another hit her with a metal rod. Someone then dumped gasoline on her. When they "chickened out" he, Zuniga, lit a match and set her on fire. Then he took off running.
In the days that followed, Zuniga was nervous. Ramirez neither saw defendant nor talked with him again after the murder.
DISCUSSION
A. The Calcrim 301 Instruction given by the court resulted in no prejudice
The People argue this issue is forfeited for failure to raise it at trial. However, once the court decided to instruct the jury on accomplice testimony, it was required to do so correctly. (See People v. Castillo (1997) 16 Cal.4th 1009, 1015.) --------
Defendant's primary contention is that the trial court prejudicially erred when it instructed the jury with CALCRIM 301. That instruction stated:
"Except for the testimony of [Ramirez], which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."Relying upon this court's decision in People v. Smith (2017) 12 Cal.App.5th 766 (Smith), defendant contends the court improperly and prejudicially required the jury to demand supporting evidence for exculpatory evidence presented against him.
In Smith, a witness provided a complete exoneration of the defendant, testifying repeatedly that he had nothing to do with the crimes charged. The jury had considerable difficulty with the instructions, asking if the corroboration requirement of CALCRIM 301 applied to the clear exculpatory evidence. (Smith, 12 Cal.App.5th at pp. 780-788.) We reversed the conviction, concluding the instruction required corroboration for the exculpatory evidence.
Although the pitfalls of CALCRIM 301 are clear, Smith does not assist defendant in this case. Even if it was improperly given, we find no prejudice.
Exculpatory evidence is evidence favorable to the defendant that exonerates or tends to exonerate the defendant from guilt. (See Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 377.) We have combed the testimony of Ramirez and found no evidence exculpating defendant of any crime, charged or uncharged.
As the testimony of Ramirez shows, it was defendant who masterminded and controlled all of the criminal activity in this case. He started his relationship with Ramirez by explaining Banuelos was bugging him and he wanted to get rid of her. He further explained the daughter of his narcotics boss had been drugged by Banuelos in the nightclub where she had worked, and this led to the daughter being raped. His assistance in getting even with Banuelos and his help for the drug boss was going to result in a lot of money for him, and he promised Ramirez she too would be paid well. This motivation runs through every step leading to the murder of Banuelos.
After the initial discussions with Ramirez, defendant arranged several face-to-face meetings with her and her boyfriends in parking lots, and two of these meetings resulted in defendant actually taking Ramirez to Banuelos's apartments, coaching her and Zuniga on where to stand, and what they needed to do. These meetings were characterized by defendant giving precise directions by phone on where to meet. All meetings were set in order to accomplish what started out first as a plan to assault and steal from Banuelos, and grew to having additional men beating and "burning" her.
On the night Banuelos was murdered, it was defendant who summoned Ramirez and Zuniga to meet with him. At the meeting place, defendant introduced them to the three other men who had come to help defendant. Defendant solicited Ramirez's help in acting as the get-a-way driver after the attack on Banuelos was complete. He took Ramirez to the exact spot she was to wait with the doors of her car open.
Defendant points to the different mental states required for the crimes planned, and crimes charged. Defendant did indeed change his mind about the crimes planned against Banuelos; however, the planned crimes got worse, growing from assault, theft, and burglary to ultimately, assault and murder. His change of mind as to what offenses he wanted carried out changed, but are not exculpatory.
Whatever may be said of the problems with instructing on CALCRIM 301, we do not see them here. B. The parole revocation fine should be stricken
Defendant contends the $10,000 parole revocation fine imposed pursuant to section 1202.45 should be stricken because he was sentenced to life without the possibility of parole. The People properly concede. (People v. Jenkins (2006) 140 Cal.App.4th 805,819.) C. The abstract of judgment must be corrected to reflect defendant was sentenced to life without the possibility of parole.
As defendant notes, the abstract of judgement incorrectly shows he was sentenced to 25 years to life on count 1. That entry should be deleted to properly reflect he was sentenced to life without the possibility of parole. The People agree.
DISPOSITION
The parole revocation fine of $10,000 is ordered stricken. The abstract of judgment is ordered amended to delete the reference to a 25-year-to-life sentence for conviction on count 1, and to add defendant's new sentence of conviction of life without the possibility of parole. The trial court is directed to send a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. IRION, J.