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People v. Morales

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 20, 2012
A129481 (Cal. Ct. App. Jan. 20, 2012)

Opinion

A129481

01-20-2012

THE PEOPLE, Plaintiff and Respondent, v. JESSE MORALES, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. SCR 522386)

In a negotiated disposition, defendant Jesse Morales entered a no contest plea to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admitted personal use of a firearm (Pen. Code, § 12022.5, subd. (a)) and committing a violent felony while acting in association with a street gang to further criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)(C)). In exchange for the plea, other charges (including murder) were dismissed. The court was given discretion in sentencing, up to a maximum of 21 years. The court sentenced defendant to 19 years. Defendant appeals. He contends that the court abused its discretion in refusing to strike the ten-year gang enhancement term. We find no abuse of discretion and affirm the judgment.

I. FACTS

The statement of facts is taken from the probation officer's report summarizing the police report and preliminary hearing testimony.

Defendant shot and killed a rival gang member. The confrontation occurred around 2:30 a.m. on September 29, 2007. Defendant, an admitted "Sureno associate," was attending a Sureno-hosted party with gang member Axel Diaz-Higareda. Defendant was carrying a handgun that Diaz-Higareda had given defendant a day or two earlier. Defendant and Diaz-Higareda were on the street when a van carrying Norteno gang members drove up. Norteno gang member Andrew "Buddy" Saludes-Smith and a fellow gang member jumped out of the van and confronted the Surenos. Saludes-Smith demanded to know "[w]here you from?" and called defendant and Diaz-Higareda "Esses," Spanish for the letter S and a derogatory term for Surenos. Diaz-Higareda later claimed that he heard or saw a gun in Saludes-Smith's possession but the claim was disputed by Saludes-Smith's friends. Defendant responded to Saludes-Smith by saying that he was from "South West" or "Santa Rosa" and then raising his arm and shooting Saludes-Smith in the chest. Saludes-Smith died from the gunshot.

Axel Diaz-Higareda was the subject of an appeal previously decided by this court. (People v. Diaz-Higareda (Oct. 28, 2011, A129037) [nonpub. opn.].) Diaz-Higareda pleaded no contest to voluntary manslaughter as defendant's accomplice and was sentenced to six-years in prison.
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II. DISCUSSION

The Legislature, concerned with violence perpetrated by street gangs, enacted sentence enhancements meant to deter gang activity. (Pen. Code, § 186.21.) The sentence enhancement at issue here provides for an additional term of 10 years in prison for any person convicted of specified violent felonies (including voluntary manslaughter) if the felony is "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1)(C).) Trial courts are given discretion to strike a gang enhancement "in any unusual case where the interests of justice would best be served." (Pen. Code, § 186.22, subd. (g).) Another statute gives trial courts general discretion to strike or dismiss enhancements "in the furtherance of justice." (Pen. Code, § 1385.)

The trial court retained and exercised sentencing discretion here, where the parties expressly agreed that the court could "stay" the gang enhancement or impose several available sentencing options limited only by the provision that defendant receive a maximum term of 21 years. When accepting defendant's plea, the court said it would "make a decision as to what the sentence could or should be" after reviewing the probation report, considering any statements on behalf of defendant and the victim, and hearing argument from counsel. The court did so. The probation report recommended imposition of the enhancement and an aggregate sentence of 25 years (a term beyond the agreed maximum). At the sentencing hearing, defense counsel argued that defendant's killing of Saludes-Smith was not "for the benefit of his street gang," but the result of a confrontation initiated by the victim, and asked the court to stay the gang enhancement. The court denied the request. The court noted that defendant "showed a long history of gang involvement and gang conduct" prior to the shooting and continued his "affiliation with gangs and gang culture" in custody. The court also noted that defendant armed himself with a firearm and engaged in a confrontation on a residential street in a "Norteno versus Sureno" gang fight. The court concluded that the killing "was a gang-involved incident" and imposed the gang enhancement for an aggregate prison term of 19 years.

The trial court did not abuse its discretion in denying the request to stay or strike the gang enhancement. "Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion 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." (People v. Jordan (1986) 42 Cal.3d 308, 316, original italics.) The record provides no indication that the trial judge here exercised his discretion in an arbitrary, capricious, or unreasonable fashion.

On appeal, defendant maintains that the circumstances of the crime show that his only intention was "to save his skin against an unprovoked attack" and not "to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1)(C).) We disagree. Defendant was on the street armed with a firearm provided by a fellow gang member. When rival gang members walked up to him and challenged defendant with verbal insults directed at his gang affiliation, defendant closed the distance between himself and the rival gang members and fired a bullet into his rival's chest. It is fairly inferable that defendant—in joining and escalating a gang confrontation—acted "to promote, further, or assist criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1)(C).)

III. DISPOSITION

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.


Summaries of

People v. Morales

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 20, 2012
A129481 (Cal. Ct. App. Jan. 20, 2012)
Case details for

People v. Morales

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESSE MORALES, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 20, 2012

Citations

A129481 (Cal. Ct. App. Jan. 20, 2012)