Opinion
B222913
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALVARADO PINEDA et al., Defendants and Appellants.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Dennis Alvarado Pineda. Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Celeya. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA268597)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed as modified.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Dennis Alvarado Pineda.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Celeya.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
The two defendants were found guilty of second degree murder and attempted, willful, deliberate, premeditated murder. The jury found true the allegations necessary for gang enhancements and enhancements for personally using and personally discharging a firearm causing great bodily injury or death, even though only one of the defendants could have fired the weapon.
One of the defendants was in custody in Florida. The court in Florida appointed counsel for the defendant in connection with an extradition proceeding and advised defendant not to talk to any police officer and to disclose to any police officer who sought to interrogate him that he had an attorney. Los Angeles police officers went to Florida, and after defendant waived his right to remain silent, defendant confessed to those officers.
We hold that defendant's statements in Florida were admissible. We also hold that as only one defendant could have discharged the firearm as to each victim, the enhancements must be modified accordingly. We otherwise affirm the convictions.
BACKGROUND
1. Eyewitness Testimony
On June 18, 2004, Alexander Betetta attended a family party celebrating his cousin's college graduation. The party was held in the backyard of a residence near 59th Street and San Pedro. Betetta and his brother Enrique Cruz went to the party with Mario Cortez, Carlos Martinez, and other friends. Cruz's common law wife dropped off Betetta and his companions at the party around 11:00 p.m. About 30 persons were present when Betetta and his companions arrived at the party.
When Betetta and the others arrived at the party, there was music playing and people dancing. In the right rear corner of the backyard there was a table with juice and sodas on it. In the left rear corner of the backyard, near the garage, there was a garbage can that contained beer. Defendants Dennis Alvarado Pineda and Juan Carlos Celeya were standing near the trash can that held the beer. There were three Hispanic males with defendants.
Betetta testified that shortly after he arrived, he observed a man approach the trash can that held the beer. As the man approached the trash can, defendants had serious looks on their faces. Pineda looked at the man. Celeya's hands were balled into fists, but he did not look at the man. The man looked at defendants and turned around and left. Others walked in the direction of the trash can before turning and walking away. Several people who were standing near the trash can also moved away. Betetta then went to the trash can to get a drink. Defendants and one of their companions looked at Betetta and never took their eyes off of him. As Betetta tried to get a drink, Celeya threw his head back and nodded at Betetta. Betetta left because he did not want to "start any trouble."
Betetta testified that as he walked away, he noticed a Hispanic man who was wearing a dark baseball cap with "LA" on it walk toward the "drink area." Defendants and their three companions stepped in front of the man, blocking his path to the drink area. Defendants and their three companions approached the man and asked, "Where are you from?" Initially, the man replied that he did not "gangbang." Defendants and their companions repeated their question and the man replied, "I'm from nowhere." The group persisted, surrounding the man and asking him, "Where are you from?" The group looked angry. Betetta heard the man in the baseball cap ultimately say, "okay" or "SSK." SSK is a tagging crew, thereby making him a "tag banger."
According to Los Angeles Police Department Detective Frank Flores, a "tagging crew" is a group of individuals that met the definition of a gang but that was involved in lesser criminal activities, such as putting graffiti on walls or buses, i.e., "tagging." "Tag banger" is a slang term that is a combination of "tagging" and "gang banger" and refers to a tagging crew. The man in the baseball cap was referred to at trial, and will be referred to in this opinion, as the "tag banger."
According to Betetta, during the encounter, defendants and their companions said, "M.S.," "M.S. 13," and "La Mara." One of defendants' companions, a man with dark curly hair, said, "Do you know who this is? This is M.S." The curly-haired man struck the tag banger in the face. The tag banger grabbed the curly-haired man and they fell to the ground.
Defendants and their companions formed a tight circle. One of defendants' companions turned around toward the crowd and put out his arms to prevent anyone from interfering. As the tag banger struggled with the curly-haired man, Celeya pulled the tag banger away from the curly-haired man. Pineda and Celeya kicked and punched the tag banger. The tag banger managed to stand and Celeya placed him in a choke-hold. At that point, a nickel-plated, semiautomatic handgun fell to the ground from the curly-haired man's waist. The tag banger escaped from Celeya's grip and sprinted toward the driveway.
Betetta testified that the curly-haired man told Pineda to "go get him," referring to the tag banger. Pineda ran toward the driveway followed by two of his companions. Celeya and the curly-haired man remained behind. As Pineda ran, he reached toward his waistband and stumbled. Pineda did not fall, but his hand touched the ground. As Pineda righted himself, he appeared to realize that there was nothing in his hand. Pineda bent over and picked up a small caliber, semiautomatic handgun.
At that point, Cruz approached and crossed paths with Celeya and the curly-haired man. Cruz said, "Please, don't. Don't fight. Just keep it calm. This is a family function here." At that point, the curly-haired man punched Cruz in the face. Cruz defended himself and threw a punch at the curly-haired man. Celeya took a step forward, and pulled a semiautomatic handgun from his sweatshirt pocket. Celeya put the handgun next to Cruz's rib cage and fired one shot. Cruz moved toward to the soda table. Betetta followed Cruz.
Betetta testified that as he went to his brother, he turned around and saw Celeya behind him. Celeya pointed his gun at Betetta's chest and pulled the trigger but the gun did not fire. Betetta observed that a shell was jammed in the gun's slide. Celeya attempted to clear the jam, but was unsuccessful. The curly-haired man ran and yelled, "Come on. Let's go. Leave him alone." Celeya attempted to strike Betetta, but missed. Celeya and the curly-haired man ran toward the driveway.
Betetta turned back to look for his brother. Betetta found his brother on the ground near the soda table. As Betetta attended to his brother, he heard five gunshots coming from the street followed by three additional shots. Betetta administered CPR to his brother, but his brother died from the gunshot wound.
At the same time, Cortez, who was wearing a blue baseball cap with "LA" on it, remained on the sidewalk in front of the residence speaking on his cell phone. Cortez testified that at some point he walked down the driveway toward the party. As Cortez was walking, he heard someone yell, "La Mara." Cortez kept walking. Betetta approached Cortez and asked him if he was okay. Cortez did not understand the reason for Betetta's inquiry. Betetta assisted Cortez to a chair and lifted Cortez's shirt. Cortez had been shot in the stomach and was bleeding.
Later, Los Angeles Police Department Detective Elizabeth Rico interviewed Cortez. Cortez told Detective Rico that a Hispanic man bumped into him and pushed him into a wall. Cortez felt something warm on his stomach but did not know what it was because he did not realize he had been shot. Thereafter, Cortez was shot in his left arm. Believing his assailant was about to shoot him in the chest, Cortez put his head down and was shot in the chin. Cortez testified that he was shot a total of four times—twice in the abdomen, once in the left arm, and once in the chin—and was hospitalized for one month. Cortez was unable to identify the shooter from police photographs and could not identify Pineda or Celeya at trial as the shooter.
Four shell casings and a spent bullet were recovered from the scene. The police did not recover a gun at the scene or in their investigation.
Detective Rico did not interview Betetta until January 17, 2005. Shortly after Cruz's funeral, Betetta drove to Novato, California because he "couldn't be home." During the interview, Detective Rico showed Betetta two photographic lineups. Betetta identified Pineda's photograph in one lineup and stated that Pineda had a gun and ran toward the driveway. Betetta identified Celeya's photograph from the second lineup and stated that Celeya shot Cruz.
Maynor Ayala testified that he attended the party on June 18, 2004. Ayala worked with defendants and knew Celeya's brother "Giovanni." About 11:30 p.m., Ayala saw defendants with Giovanni and "Chuco." Around midnight, Ayala heard a commotion in the area of "Juan Carlos" and "Brons" and turned to see what was happening. Ayala then turned away. Shortly thereafter, Ayala heard a gunshot coming from defendants' location. Ayala looked in the direction of the gunshot and saw a man lying on the ground. Defendants and their companions were running outside. Ayala heard at least one more gunshot coming from the direction of the street.
Ayala testified that he referred to Pineda by the nickname "Brons."
After the shooting, Ayala was taken to the police station where he identified Ceyela from a group of photographs as a person who was present at the party. The following month, the police showed Ayala additional photographs, and Ayala circled Pineda's photograph. Ayala wrote, "This is the guy I saw shooting that night at the party. He's the one who shot the guy who died. I know him, his. I know him as Brons." At trial, Ayala denied that he saw who fired the gun. Ayala testified that before he spoke with the police in July, he spoke with others about the shooting and may have written the statement identifying Brons as the shooter based on what others may have told him.
Ramon Pineda (Ramon) testified that he saw Celeya, Celeya's brother Giovanni and cousin Karina, and three men standing near a trash can. Ramon saw Cruz walking toward the location where the group was standing. Ramon's sister said, "They are fighting, and they have a gun." Ramon got up to find his children so they could leave. Ramon heard one gunshot that came from the area where Celeya stood with his companions, but did not see who fired the shot.
Ramon Pineda was not related to defendant Pineda.
Ramon testified that Celeya ran past him. Celeya was alone. A second man who was holding a small semiautomatic gun also ran past Ramon. The man appeared to be using the gun to prevent others from following Celeya. Ramon was sure that Pineda was not the man with the gun. As the man with the gun ran past Ramon, one of Cruz's friends grabbed the gunman by the shoulder, turned him around, and asked, "What have you done?" The man with the gun shot Cruz's friend three or four times before running into the street. Thereafter, Ramon heard about eight more gunshots.
G.P., Ramon's son, was 13 or 14 years old at the time of the shootings and 18 years old at the time of trial. G.P. testified that he did not want to be in court because he did not see anything. G.P. then admitted that he had told the trial court and various police officers that he did not want to testify because he was afraid. G.P. believed that if he testified he would be labeled as a "snitch" and bad things happened to snitches.
G.P. testified that he went to a graduation party in June 2004, with his father, his brother, and his girlfriend. G.P. saw Celeya at the party, but he did not see Pineda. Near the end of the party, as G.P. stood across the street from the party with his girlfriend, he heard people screaming. G.P. also heard a noise that sounded like a single firecracker, after which he saw people running.
G.P. recalled telling the police that after he heard one shot, he saw "Juan Carlos" running out of the party with a smile on his face, but that was not true. G.P. also recalled telling the police that as Juan Carlos was running out of the party Juan Carlos yelled, "Mara Salvatrucha," but that also was not true. On June 30, 2004, the police showed G.P. a six-pack photographic lineup. G.P. circled Juan Carlos's photograph and wrote on the form, "Juan Carlos was the gangster that had a smile on his face and said Mara Salvatrucha after the first shooting." On cross-examination, G.P. testified that his statements to the police were not to be trusted. G.P. testified that the shooting took place at his aunt's house and that it was important to his father that the case be investigated. G.P.'s father wanted to see people prosecuted and he "put [G.P.] up to it."
Detective Rico testified that G.P. told him that after he saw Juan Carlos run out of the party he saw another suspect with a gun. That suspect pointed his gun at the persons who were present to keep them from following. G.P. told Detective Rico that Cortez grabbed the suspect's shoulder and the suspect fired two shots.
Julio Sarmiento, Ramon's nephew, testified that he attended a graduation party at his aunt's house on June 18, 2004. About 9:30 p.m. defendants and Celeya's brother, who had wavy hair, arrived at the party. At some point, a fight broke out between Celeya's brother and another man. Celeya moved toward the fight. Celeya turned his back to Sarmiento and began "moving his hands." Sarmiento could not see what was in Celeya's hands, but believed that Celeya was loading a gun.
Sarmiento testified that Cruz came into the area of the fight. Sarmiento looked away for a moment and when he looked back, he saw Cruz and Celeya on the ground fighting. While Cruz and Celeya were on the ground, Sarmiento heard a gunshot. Sarmiento did not see Celeya shoot Cruz. Celeya stood up and ran out of the party. As Celeya ran, Pineda provided Celeya with "cover," pointing a gun at the persons who were present. Pineda then ran from the party. After defendants ran from the party, Sarmiento heard someone yell "Mara Salvatrucha." Sarmiento also heard additional gunshots.
Ramon testified that he spoke with Sarmiento on September 13, 2008, about what he had seen at the party. According to Ramon, Sarmiento said that he had seen Celeya load a gun and that he heard a gunshot, but that he did not "see it." Sarmiento said that he saw "him" running. Right after that conversation, Ramon called Los Angeles Police Department Detective Robert Solorza and told him what Sarmiento had said. Detective Solorza testified that Ramon told him that Sarmiento said that he had witnessed the shooting and saw Celeya chamber a round into a weapon and fire the weapon at Cruz.
On September 23, 2008, Detective Solorza interviewed Sarmiento. Detective Solorza testified that Sarmiento told him that Celeya's brother argued with Cruz's brother-in-law. Cruz went to help his brother-in-law. Juan Carlos turned his back and "made some movements with his arms" and then turned around and stood "normal." Eventually, Juan Carlos and Cruz were fighting on the ground. At some point Juan Carlos got up and ran away. Sarmiento observed another person with a gun making "covering" movements. After seeing the person making covering movements, Sarmiento heard two and then four gunshots and someone yell, "Mara Salvatrucha."
Ramon testified that after Detective Solorza interviewed Sarmiento, Sarmiento told Ramon that he was not going to tell Detective Solorza that he saw Juan Carlos shoot the man who died. Ramon reported the conversation to Detective Solorza, although, according to Detective Solorza, Ramon said that his conversation with Sarmiento took place before the detective interviewed Sarmiento.
2. Pineda's Statements To Detectives Rico And Arciniega And To Officer De Los Santos
On January 19, 2005, Detective Rico interviewed Pineda in Miami, Florida. Los Angeles Police Department Detective Richard Arciniega also was present. At first, Pineda told the detectives that he went to the party with some girls and that his friends "Giovanni" and "Chuco" were there. Pineda was speaking with "Carla" when he heard gunshots and saw everyone run out of the party. Pineda denied that he had a gun or that any of his friends had a gun.
After further questioning, Pineda told the detectives that "Juan Carlos" went to get a drink and "some guys" surrounded Juan Carlos because of the tattoos on his head. One of the men, who was from another gang, grabbed Juan Carlos's arms. Giovanni hit the man who was holding Juan Carlos. Pineda saw a man point a gun at Juan Carlos. Pineda ran over to the group that was fighting with Juan Carlos and grabbed one of the men. Pineda said that he shot the man once with a ".25-caliber auto." Pineda fired a few more rounds into the ground to break up the fight, and ran out with everyone else. Pineda threw out the gun somewhere in Los Angeles.
On January 20, 2005, City of Miami Police Department Officer Mario De Los Santos interviewed Pineda in Miami. Pineda told Officer De Los Santos that he had been arrested for a homicide and that "he would do ten years in prison like nothing." Pineda told the officer that he was a member of the M.S. 13 gang, that the gang was his only family, and that he could not wait to go back to California to serve his prison time there.
3. Gang Evidence
Detective Flores testified as the prosecution's gang expert. Detective Flores testified that the Mara Salvatrucha gang went by the initials "M.S." and "M.S. 13" or was referred to as "La Mara." The Mara Salvatrucha gang was affiliated with or fell under the umbrella of the Mexican Mafia which was a gang of gangs that controlled the jail and prison populations of Hispanic gang members. The Mexican Mafia's influence extended into the "streets." Mara Salvatrucha paid homage to the Mexican Mafia by using the number 13 which represented "M," the 13th letter in the alphabet. Mara Salvatrucha used the color blue because of its Mexican Mafia association.
Detective Flores opined that Mara Salvatrucha was a criminal street gang. Mara Salvatrucha's primary activities included murders, assaults, narcotics trafficking and distribution, robberies, extortions, burglaries, vandalisms, and various other property crimes. On October 31, 2003, Mara Salvatrucha gang member Elio Yanes was convicted of a murder and an attempted murder that were committed on August 18, 2002. On March 18, 2004, Mara Salvatrucha gang member Marvin Guerra was convicted of mayhem and an attempted murder that were committed on December 17, 2002.
According to Detective Flores, Mara Salvatrucha claimed territories in the Hollywood and Lafayette Park areas of Los Angeles. Los Coronados (or "Little Cycos") was a clique of Mara Salvatrucha. Mara Salvatrucha gang rivals included the White Fence, 18th Street, Playboys, and Azlan gangs. The location of the shooting in this case occurred in an area claimed as territory by the Playboys, Blood, and Crip gangs. The Mara Salvatrucha gang did not claim that area as its territory.
Detective Flores testified that it was the general practice of Mara Salvatrucha gang members to carry small caliber handguns that could be concealed easily. These gang members carried handguns for self-protection in the event they found themselves in rival gang territory. Such presence could be seen as disrespectful to the rival gang. If two to five Mara Salvatrucha gang members and gang associates were at a party in rival gang territory, Detective Flores would expect them to carry more than one gun; one gun would be insufficient to protect the group.
Detective Flores testified that the term "hit up" is slang for a confrontational inquiry about a person's gang membership. In Detective Flores's experience, if a Mara Salvatrucha gang member asked a person where the person was from the inquiry usually led to violence. If the person responded in a manner that appeared disrespectful to the Mara Salvatrucha gang member, the situation would escalate immediately. The Mara Salvatrucha gang existed through what it perceived as "respect." Respect often was gained through fear and intimidation by such activities as "hitting up" people. If a Mara Salvatrucha gang member punched a person and the person in turn punched the gang member, such self-defense would be perceived as disrespectful and met with a more severe reaction.
Detective Flores identified Pineda's Mara Salvatrucha and other gang tattoos from photographs. Pineda had "EME," Spanish for the letter "M," tattooed on the upper right part of his chest and "ESE," Spanish for the letter "S," tattooed on left part of his chest. Between the words "ESE" and "EME," Pineda has tattooed "CLCS" which stood for the Coronado Little Cycos clique of which Pineda was a member. Pineda also had the tattoos "13" on the center of his chest, "MS" on his stomach and right chest, "M.S. for life" on the back of his head, "Mara Salvatrucha" on his back below the neck line, a devil's pitchfork on his back, "MS" on his back, "mi vida loca" on his right shoulder (a common Hispanic street gang tattoo that translates as "my crazy life" in English), and "Mara Salvatrucha" within a tattoo of a cartoon figure. Based on the circumstances of the crimes and Pineda's tattoos, Detective Flores believed that Pineda was a Mara Salvatrucha gang member on June 18, 2004. Pineda's gang moniker was "Bron." Detective Flores did not know the meaning of "Bron."
Detective Flores also identified Celeya's Mara Salvatrucha gang tattoos from photographs. Celeya had the tattoos "Coronado" under his left breast representing his clique, "13" on his abdomen representing Mara Salvatrucha 13 "and affiliation of Surenos street gang under the umbrella of the Mexican Mafia," "EM" and "ES" on his back, "MS X3" on his back, "MS" within diamonds on his wrist, "13" below the diamonds, and "MS" on his ankle with the devil's pitchfork as background. Based on the circumstances of the crimes and Celeya's tattoos, Detective Flores believed that Celeya was an active participant with the Mara Salvatrucha gang on June 18, 2004. Celeya's gang moniker was "Maldito," which translates as "evil" in English.
The prosecutor gave Detective Flores a set of hypothetical facts based on the facts in this case. Based on those hypothetical facts, Detective Flores opined that the acts described were committed for the benefit of, in association with, and in furtherance of a criminal street gang. Detective Flores explained that in the hypothetical, Mara Salvatrucha gang members were involved in a confrontation with an individual that escalated into a physical altercation which then escalated into a shooting. The gang members assisted each other and represented the gang by calling out the gang's name as they left the area.
4. Proceedings
A jury convicted defendants and appellants Pineda and Celeya of the second degree murder of Enrique Cruz (Pen. Code, § 187, subd. (a) ) and the attempted willful, deliberate, premeditated murder of Mario Cortez (§§ 664, subd. (a) & 187, subd. (a)). The jury found true the allegations that defendants committed the offenses for the benefit of, at the direction or, or in association with a criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. (§186.22, subd. (b)(1).) The jury also found true the allegations with respect to both offenses that defendants personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The jury further found true the allegations with respect to both offenses that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), intentionally and personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)) (the murder verdict forms incorrectly list section 12022), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)). In a bifurcated trial, the trial court found true the allegations that Celeya had been convicted of a prior serious felony (§ 667, subd. (a)(1)), had served a prior prison term (§ 667.5, subd. (b)), and had been convicted of a prior serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court sentenced Pineda to 80 years to life in state prison and Celeya to 115 years to life in state prison.
All citations are to the Penal Code unless otherwise noted.
On appeal, Celeya contends that the trial court erred in permitting the prosecutor to amend the information after the close of evidence to add certain firearm allegations; in admitting gang evidence that denied Celeya a fair trial and due process; in modifying CALJIC Nos. 17.19, 17.19.5, and 2.13; in failing to modify CALJIC No. 3.02; in failing to instruct the jury with several "pinpoint" instructions; and by depriving Celeya of a fair trial and creating a miscarriage of justice by virtue of the cumulative prejudice from the trial court's errors. Celeya also asserts that if the other contentions fail, the abstract of judgment should be amended to reflect joint and several liability for the restitution fine.Pineda contends that the trial court erred in failing to exclude his statement to a police officer and CALJIC No. 3.02 improperly defined the natural and probable consequences theory of culpability. Pineda joins Celeya's contentions concerning the admission of gang evidence, instructional error, and cumulative prejudice.
In his reply brief, Celeya abandoned an argument that the trial court erred by limiting a confession by Pineda that allegedly exculpated Celeya to Pineda's case only.
DISCUSSION
I. The Trial Court Properly Admitted Pineda's Statement To Detectives Rico And Arciniega
Defendant Pineda contends that the trial court erred in denying his motion to exclude his statement to Los Angeles Detectives Rico and Arciniega in Florida because the statement was obtained in violation of his Sixth Amendment right to counsel. The trial court properly admitted the statement.
A. Background and Procedural History
The background facts are taken from the parties' papers in support of and opposition to Pineda's motion to exclude his statements to the police.
On July 22, 2004, the Los Angeles County District Attorney's Office filed a felony complaint for arrest warrant against Pineda and Celeya for the murder of Cruz and attempted murder of Cortez. In November 2004, defendants were identified as suspects in a home invasion robbery in Miami, Florida. On January 15, 2005, the Miami Dade Police Department arrested defendants on the outstanding California warrants.
On January 18, 2005, extradition proceedings commenced in Miami before Judge Gerald Klein. Judge Klein informed Pineda about the extradition process and, when Pineda expressed ambivalence about whether to waive extradition, Judge Klein appointed a public defender to represent Pineda in the extradition proceedings. The public defender advised Judge Klein that Pineda was not waiving his right to counsel. Judge Klein advised Pineda that he should not talk to any police officer who tried to talk to him and that he should disclose to any such police officer that he had an attorney. On January 19, 2005, Detectives Rico and Arciniega interviewed Pineda. Pineda waived his Miranda rights and made the statement set forth in the background section above.
Miranda v. Arizona (1966) 384 U.S. 436.
Prior to trial, Pineda moved to exclude his statement to Detectives Rico and Arciniega as having been taken in violation of his Sixth Amendment Right to counsel.Pineda argued that the detectives interviewed him without his counsel present after his appointed counsel in the Florida extradition proceeding expressly stated that Pineda was not waiving his right to counsel. The prosecution filed an opposition and supplemental opposition and Pineda filed a response. The trial court granted Pineda's motion.
Pineda's motion also sought to exclude his statement to Officer De Los Santos. Pineda's claim on appeal does not concern the admissibility of that statement.
Thereafter, the prosecution filed a renewed opposition to Pineda's motion to exclude his statement to Detectives Rico and Arciniega, and Pineda filed a response. At the hearing on the renewed opposition, the trial court framed the issue as "whether, in fact, as to the California case, the right to counsel has attached and has been asserted, and the question really is whether it is a valid assertion." The trial court reversed its prior ruling, and ruled that Pineda's statement to the detectives was admissible. Citing People v. Viray (2005) 134 Cal.App.4th 1186, the trial court found that the Sixth Amendment right to counsel had attached when the prosecution filed a complaint charging Pineda with murder and attempted murder. The trial court further found, however, that the Florida public defender's assertion of the right to counsel was invalid with respect to the California case because the Florida court did not have jurisdiction over the California case, the Florida court appointed the public defender for the limited purpose of representing Pineda in the extradition proceedings, and the public defender had no connection to or association with the California case.
In a subsequent hearing on Pineda's motion to exclude his statements to Detectives Rico and Arciniega as taken in violation of the Fifth Amendment, the trial court held that Pineda had been fully and completely advised of his Miranda rights and that he knowingly and intelligently waived those rights. The trial court further found, in light of Pineda's Miranda waiver, that Pineda had not asserted or invoked his Sixth Amendment right to counsel at the time of the interview.
B. Application of Relevant Principles
"[O]nce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U.S. 201, 204-205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see also United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980)." (Montejo v. Louisiana (2009) ______ U.S. ______[129 S.Ct. 2079, 2085] (Montejo).) "Several California cases support the proposition that the right to counsel attaches, and Massiah's prohibition against interrogation takes effect, at the time a criminal complaint is filed." (People v. Viray, supra, 134 Cal.App.4th at p. 1194.)
It is "beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U.S. 344, 352-353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment: [¶] 'As a general matter . . . an accused who is admonished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.' Patterson, supra, at 296, 108 S.Ct. 2389, 101 L.Ed.2d 261." (Montejo, supra, 129 S.Ct. at p. 2085.)
Pineda contends that the trial court erred in failing to exclude his statement to Detectives Rico and Arciniega because he was represented by counsel at the time of the interview, his counsel was not present for the interview, his counsel had asserted his Sixth Amendment right to counsel prior to the interview, and his counsel's assertion of his Sixth Amendment right was effective in this case even though counsel was appointed solely to represent him in an extradition proceeding in Florida.
Extradition proceedings are a hybrid—part administrative, part civil, and part criminal in nature. "Extradition represents an exercise of the executive decision-making power." (People v. Superior Court (Ruiz) (1986) 187 Cal.App.3d 686, 692; see §§ 1547 et seq.; Biddinger v. Commissioner of Police (1917) 245 U.S. 128, 132; United States v. Yousef (2nd Cir. 2003) 327 F.3d 56, 142, fn. 66 [extradition proceedings are civil proceedings related to criminal proceedings in another jurisdiction]; DeSilva v. DiLeonardi (7th Cir. 1999) 181 F.3d 865, 868 ["the Sixth Amendment does not apply to extradition"]; Chewning v. Rogerson (8th Cir. 1994) 29 F.3d 418, 420-421 ["It is well settled that extradition proceedings are not considered criminal proceedings that carry the sixth amendment guarantee of assistance of counsel"]; Judd v. Vose (1st Cir. 1987) 813 F.2d 494, 497 [extradition hearing does not involve guilt or innocence, and is not criminal proceeding within meaning of Sixth Amendment]; see also Snider v. Seung Lee (4th Cir. 2009) 584 F.3d 193, 203, fn. 2 ["Extradition is sui generis, neither civil nor criminal in nature"]; Martin v. Warden, Atlanta Pen (11th Cir. 1993) 993 F.2d 824, 828 (Martin) ["An extradition proceeding [is an executive function and] . . . [i]t clearly is not a criminal proceeding"]; Matter of Extradition of Pazienza (S.D.N.Y. 1985) 619 F.Supp. 611, 618 ["An extradition proceeding is neither strictly criminal nor civil; it is a hybrid"].) "Constitutional procedural protections which by their terms are applicable only in criminal cases, however, are unavailable in extradition proceedings." (Martin, supra, 993 F.2d at p. 829; see Taylor v. Jackson (S.D.N.Y. 1979) 470 F.Supp. 1290, 1292 [the Sixth Amendment's guarantee of a speedy trial and the right to assistance of counsel do not apply to extradition proceedings].)
In People v. Wheelock (2004) 117 Cal.App.4th 561, as here, the defendant moved to suppress the statement he made at the Utah jail where he was being held pending extradition. He was represented by counsel in connection with extradition. He contended that because he was questioned by California law enforcement officers in the absence of his counsel, his statements violated his Sixth Amendment rights, even though he had waived his Miranda rights. The court held that the trial court properly denied the motion because the "commencement of extradition proceedings is not enough, by itself, for the Sixth Amendment right to counsel to attach." (Id. at p. 569.) Courts in other jurisdictions are to the same effect. (State v. Waggoner (Idaho 1993) 864 P.2d 162, 165 ["The statutory right to counsel does not give rise to a constitutional right to an attorney because extradition is not a critical stage of the criminal proceedings. See Dunkin v. Lamb, 500 F.Supp. 184 (D.Nev.1980). [¶] Because the only purpose of extradition is the return of the fugitive to the place of the alleged offense, his constitutional rights, other than the present right to personal liberty, are not involved. People ex rel. Shockley v. Hardiman, 152 Ill.App.3d 38, 105 Ill.Dec. 240, 504 N.E.2d 109 (1987). [Fn. omitted.] It also has been held that an accused's right to counsel did not attach when he was arrested on a fugitive warrant and waived extradition proceedings. Judd v. Vose, 813 F.2d 494 (1st Cir.1987)."]; People v. Makiel (Ill.App. 1994) 635 N.E.2d 941, 953 ["[E]ven though defendant's sixth amendment right to counsel had attached by virtue of his indictment, his mere acceptance of counsel for the extradition hearing was insufficient to invoke that right, his waiver of the right was effective, and the circuit court properly denied his motion to suppress [fn. omitted]"].) In a recent case, a court in Florida, the state from which Pineda was being extradited, held "that Appellant did not invoke his right to counsel on the murder and burglary charges. The mere appearance of counsel for purposes of an extradition proceeding does not amount to an invocation of the right to counsel on the underlying criminal charges. Accord Chewning, 29 F.3d at 422 (holding that mere appearance of counsel at extradition hearing could not reasonably be considered positive enough assertion, without other supporting evidence, to amount to invocation of right to counsel on underlying criminal charge); People v. Makiel, 263 Ill. App. 3d 54, 635 N.E.2d 941, 953, 200 Ill. Dec. 602 (III. App. Ct. 1994) (holding mere acceptance of counsel for extradition insufficient to invoke right to counsel on underlying criminal charge)." (Williams v. State of Florida (Fla.App. 2010) 38 So.3d 188, 194.)
Regardless of the retention or appointment of counsel at the extradition hearing or for any other purpose, the United States Supreme Court's decision in Montejo, supra, 129 S.Ct. at p. 2085, conclusively establishes that Pineda waived his Sixth Amendment right to counsel when he was advised of and voluntarily, knowingly, and intelligently waived his Miranda rights. (Ibid.) Thus, Pineda's statements were admissible in this case. (Ibid.)
II. Pineda's Claim That CALJIC No. 3.02 Provided A Legally Incorrect Formulation Of The Natural And Probable Consequences Theory Of Culpability
Pineda contends that CALJIC No. 3.02 erroneously permitted the jury to make a natural and probable consequences finding based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of assault in the abstract rather than based on whether the murder in this case was a natural and probable consequence of the assault in this case. Because Pineda did not request in the trial court that CALJIC No. 3.02 be modified in a manner consistent with his claim on appeal, Pineda has forfeited appellate review of this claim.
The jury was instructed with CALJIC No. 3.02 as follows:
"One who aids and abets another in the commission of a 'target' crime or crimes not only commits that crime or those crimes but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the 'target' crime or crimes originally aided and abetted.
"In order to find a specific defendant guilty of the charged crimes of murder in the first degree and attempted murder or of the lesser included crimes of murder in the second degree, voluntary manslaughter, and attempted voluntary manslaughter based upon this particular theory of 'a natural and probable consequence,' you must be satisfied beyond a reasonable doubt that:
"1. The 'target' crime or crimes of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245(a)(1) or assault with a firearm in violation of Penal Code section 245(a)(2) (as defined elsewhere in these instructions) was or were committed;
"2. The specific defendant aided and abetted that crime or those crimes;
"3. A coprincipal in that crime or those crimes committed the crime or crimes of murder in the first degree, murder in the second degree, voluntary manslaughter, attempted murder, and/or attempted voluntary manslaughter; and
"4. The crime or crimes of murder in the first degree, murder in the second degree, voluntary manslaughter, attempted murder, and/or attempted voluntary manslaughter was or were a natural and probable consequence of the commission of the 'target' crime or crimes of assault by means of force likely to produce great bodily injury or assault with a firearm.
"In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen.
"You are not required to agree unanimously as to which originally contemplated 'target' crime a particular defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and agree unanimously that the particular defendant aided and abetted the commission of an identified and defined 'target' crime and that the crime or crimes of murder in the first degree, murder in the second degree, voluntary manslaughter, attempted murder, and/or attempted voluntary manslaughter was or were a natural and probable consequence of the commission of that 'target' crime."
A. Background
At trial, the prosecutor requested that the jury be instructed on aiding and abetting culpability with CALJIC No. 3.02 based on the target crimes of assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1) and assault with a firearm under section 245, subdivision (a)(2). Celeya's counsel objected to the instruction on the ground that the evidence did not support the instruction. In support of this objection, Celeya's counsel argued that with respect to the murder charge the only evidence adduced at trial supported his guilt as the actual perpetrator of Cruz's murder and not as an aider and abettor. With respect to the attempted murder charge, Celeya's counsel argued that the evidence showed that Pineda likely was the actual perpetrator and that Celeya was not with Pineda in the driveway at the time of the offense and thus could not have foreseen the attempted murder as a natural and probable consequence of the assault by means of force likely to produce great bodily injury.
Celeya's counsel requested that if the trial court were to instruct the jury with CALJIC No. 3.02 that the trial court modify the instruction to name the victims of the assault by means of force likely to produce great bodily injury and the assault with a firearm. Celeya's counsel argued that the tag banger should be identified as the victim of the assault by means of force likely to produce great bodily injury and Betetta should be identified as the victim of the assault with a firearm.
The trial court asked Pineda's counsel if he wished to be heard. Pineda's counsel responded that he would join Celeya's counsel's arguments. The trial court found a substantial evidentiary basis for instructing with CALJIC No. 3.02 without the requested modification.
B. Forfeiture
Although an appellate court may review an unobjected-to instruction that allegedly implicated a defendant's substantial rights, a claim that an instruction that is correct in law should have been modified is not cognizable on appeal when a defendant failed to meet his obligation to request clarification of the instruction in the trial court. (People v. Richardson (2008) 43 Cal.4th 959, 1023, citing People v. Guerra (2006) 37 Cal.4th 1067, 1134.) CALJIC No. 3.02 properly defines the natural and probable consequences doctrine. (See People v. Richardson, supra, 43 Cal.4th at p. 1022 [rejecting "any challenge to the adequacy of CALJIC No. 3.02's explication of the natural and probable consequences doctrine"].)
Section 1259 provides, "Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
Because CALJIC No. 3.02 properly defines the natural and probable consequences doctrine and Pineda failed to object to and request a modification of CALJIC No. 3.02 in the trial court on the same grounds as he raises on appeal, Pineda has forfeited appellate review of this claim. (People v. Richardson, supra, 43 Cal.4th at pp. 1022-1023.) Pineda argues that his counsel's joinder in Celeya's counsel's objection and request for modification of CALJIC No. 3.02 preserved his claim on appeal because Celeya's counsel's proposed modification "would have served the identical purpose of curing the instructional error by drawing the jurors' attention to the need to focus on the specific, concrete acts comprising the target offenses under these facts, not on the crimes in the abstract." Celeya's requested modification to identify certain persons as the victims of the target felonies may have cured the alleged defect in CALJIC No. 3.02 in the same way as Pineda's proposed modification, but Celeya's requested modification was entirely different than the modification Pineda asserts on appeal. Pineda cites no authority for the proposition that he was relieved from requesting in the trial court the specific modification he asserts on appeal because a different requested modification might have achieved the same result. Pineda's counsel's joinder in Celeya's counsel's argument in the trial court preserved Pineda's right to appellate review only with respect to that argument. In this regard, Celeya has appealed the trial court's ruling with respect to his requested modification of CALJIC No. 3.02, and Pineda has joined that argument.
Even if we were to find that Pineda has preserved this issue for review, the issue fails because the instruction did not permit the jury to decide whether murder in the abstract is a natural and probable consequence of assault in the abstract as argued by Pineda. Instead, the instruction told the jury to decide the natural and probable consequences issue based on the facts of the case. Specifically, the instruction states, "The issue is to be decided in light of all of the circumstances surrounding the incident."
III. The Trial Court Did Not Abuse Its Discretion In Permitting The Prosecution To Amend The Amended Information To Add Firearm Allegations
Celeya contends that the trial court abused its discretion in permitting the prosecution to amend the amended information as to the murder and attempted murder charges to add allegations that he personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court did not abuse its discretion.
A. Background
The charging summaries on the complaint, the information, and the amended information allege an enhancement under subdivision (d) of section 12022.53 as to the murder and attempted murder charges for both Pineda and Celeya. The summaries do not contain an allegation against either defendant under subdivision (b) or (c) of section 12022.53. The body of the complaint, the information, and the amended information contain allegations under section 12022.53, subdivisions (b), (c), and (d) as to Pineda, but no corresponding allegations as to Celeya.
After the presentation of the prosecution's evidence, but before the prosecution rested, Celeya's counsel noted, apparently in connection with a prior motion to dismiss under section 1118.1, that the amended information did not contain allegations that Celeya personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The prosecution responded that the summary of charges in the complaint and the face pages of the information and amended information alleged a violation of section 12022.53, subdivision (d) against Celeya as to the murder and attempted murder counts. Thus, the prosecutor argued, Celeya's counsel was on notice.
The trial court stated, "The complaint, certainly the preliminary hearing transcript, certainly the information in this case, comes as no surprise Mr. Celeya." The prosecutor stated, "Mr. Celeya's name was omitted unintentionally regarding the 12022.53 (d), but it is on the face page of every single document. It is at the end of the document putting counsel on notice since when the case was filed." The trial court stated, "I do find there is a requisite notice, so I appreciate your continued 1118.1, Mr. Kalra [Celeya's counsel]. I do believe that the defense has been on notice. It is no surprise. Certainly the evidence in this case has established it." The trial court stated that the question was whether it would allow the jury to consider allegations under subdivision (b) and (c) of section 12022.53. Apparently contemplating a motion to amend the amended information by the prosecution to allege allegations under subdivisions (b) and (c), the trial court stated that any such motion was, at that time, denied.
The prosecutor later moved to amend the amended information to add Celeya's name to the body of the allegations under section 12022.53, subdivisions (b), (c), and (d). Celeya's counsel objected on the grounds that the body of the complaint, the information, and the amended information did not state against Celeya the allegations the prosecution sought to add. Such an amendment would prejudice Celeya, his counsel argued, because the defense was "denied an opportunity to have a 995" and had relied on the state of the information when it made its section 1118.1 motion. The trial court granted the prosecutor's request, ordering the amended information amended to include allegations under section 12022.53, subdivisions (b), (c), and (d) in the body of the information. With respect to the allegation under subdivision (d), the trial court noted that that allegation as to Celeya already appeared on the front of the amended information.
B. Application of Relevant Principles
"The 'preeminent' due process principle is that one accused of a crime must be 'informed of the nature and cause of the accusation.' (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Thomas [(1987)] 43 Cal.3d [818,] 823, and cases cited.)" (People v. Jones (1990) 51 Cal.3d 294, 317.) "[A] defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747.)
"[A]n information may be amended to conform to proof at any stage of the proceeding so long as the defendant's substantial rights are not compromised." (People v. Carr (1988) 204 Cal.App.3d 774, 780, fn. 7, citing § 1009 and People v. Jones (1985) 164 Cal.App.3d 1173, 1178-1179 ["Amendment of an information at trial to state offenses established at the preliminary hearing or even during trial is proper as long as the defendant's substantial rights are not compromised. [Citations.]"].) An information may not be amended unless the proposed amendment is supported by evidence presented at the preliminary hearing. (§ 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1007-1008.) We review a trial court's decision to permit amendment of an information for an abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Section 1009 provides, in pertinent part: "The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, . . . [T]he trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination."
Celeya contends that the trial court abused its discretion in permitting the amendment because the evidence adduced at the preliminary hearing that he fired the only gun used in the murder and attempted murder was ambiguous at best and nonexistent at worst. As long as defendant had notice of the allegations, whether or not there was evidence at the preliminary hearing is not determinative of the right to amend. The complaint, information, and amended information provided Celeya with the required due process notice of the specific sentence enhancement allegations that would be invoked to increase his punishment for the murder and attempted murder charges. With respect to the allegation under subdivision (d), the charging summaries on the complaint, the information, and the amended information all allege an enhancement under subdivision (d), thus giving Celeya notice of that allegation. As for notice that his conduct could be subject to punishment under subdivisions (b) and (c) of section 12022.53, the allegation under subdivision (d) served also to give notice under subdivisions (b) and (c). A defendant cannot violate subdivision (d) of section 12022.53 without also violating subdivisions (b) and (c). That is, a defendant cannot intentionally and personally discharge a firearm causing great bodily injury or death (subdivision (d)) without also personally using a firearm (subdivision (b)) and intentionally and personally discharging a firearm (subdivision (c)). Accordingly, an allegation that a defendant's conduct is subject to enhanced punishment under subdivision (d) provides notice that the same conduct is subject to punishment under subdivisions (b) and (c). (See People v. Strickland (1974) 11 Cal.3d 946, 959-961 (Strickland).)
In Strickland, supra, 11 Cal.3d 946, the defendant was charged with murder, but found guilty of manslaughter. (Id. at p. 951.) The trial court imposed a sentence enhancement under the version of section 12022.5 then in effect that applied to murder, but not to manslaughter. (Id. at pp. 959-960.) The Supreme Court found that the section 12022.5 enhancement did not apply, but that the defendant should have been sentenced under the version of section 12022 then in effect that applied to felony offenses committed while the defendant was armed with a deadly weapon. (Strickland, supra, 11 Cal.3d at pp. 960-961.) Quoting People v. Provencher (1973) 33 Cal.App.3d 546, 549550, the court in Strickland, supra, 11 Cal.3d at page 961 reasoned, "'Penal Code section 12022.5 and section 12022 . . . do not define a crime or offense but relate to the penalty to be imposed under certain circumstances. Thus section 12022 is not a lesser included offense under 12022.5 but section 12022 would be applicable in any case in which 12022.5 applies. Basically 12022.5 is a limited application of section 12022 with a heavier penalty. In the present case appellant did not come within the provisions of section 12022.5, as the crime of which he was convicted was not specified in that section, but the jury did find that he used and thus was armed with a firearm, a shotgun, at the time the offense was committed. Appellant was charged in the commission with the use of a firearm under section 12022.5, thus had notice that his conduct [could] also be in violation of section 12022.'"
Here, the complaint, information, and amended information alleged that Celeya violated subdivision (d) of section 12022.53. By alleging a violation of subdivision (d), the charging instruments provided notice to Celeya that his conduct also violated subdivisions (b) and (c). Because the charging instruments in this case provided Celeya notice that his conduct violated subdivisions (b), (c), and (d) of section 12022.53, the trial court did not err in allowing the amendments to the amended information.
IV. The Trial Court Did Not Abuse Its Discretion In Admitting Gang Evidence
Celeya contends that the trial court abused its discretion in admitting expert testimony about gangs beyond that necessary to prove the gang allegations. Specifically, Celeya challenges the admission of Detective Flores's testimony that the Mara Salvatrucha gang is affiliated with the Mexican Mafia, Detective Flores's "detailed interpretation" of Celeya's gang tattoos, and Detective Flores's testimony about Celeya's intent and guilt based on a hypothetical set of facts. The erroneous admission of the gang evidence, Celeya contends, deprived him of a fair trial and Fourteenth Amendment due process. Pineda joins Celeya's contentions. The trial court did not abuse its discretion in admitting the challenged evidence.
A. Standard of Review
"A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]" (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
B. Application of Relevant Principles
To prove a gang enhancement allegation under section 186.22, "the prosecution must prove that the crime for which the defendant was convicted had been '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.' (§ 186.22, subd. (b)(1) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. (§ 186.22, subds. (e) and (f).)" (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Apart from a gang enhancement allegation, "[e]vidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
A prosecutor properly may ask a gang expert hypothetical questions based on the facts of a case. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) "A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]" (Ibid.)
Under Evidence Code section 352, a trial court may, in its discretion, exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. "'Because evidence that a criminal defendant is a member of a . . . gang may have a "highly inflammatory impact" on the jury [citation], trial courts should carefully scrutinize such evidence before admitting it.' [Citation.] Such evidence should not be admitted if only tangentially relevant [citation] because of the possibility that the jury 'will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged' [citation] . . . ." (People v. Gurule (2002) 28 Cal.4th 557, 653.)
"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair'" (People v. Partida, supra, 37 Cal.4th at p. 439.) Due process violations are reviewed for prejudice under the harmless beyond a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Albarran (2007) 149 Cal.App.4th 214, 229, citing People v. Boyette (2002) 29 Cal.4th 381, 428.)
1. Hypothetical Facts
The prosecutor posed a set of hypothetical facts to Detective Flores that were based on the facts in this case and asked the detective if, in his opinion, the acts described were committed for the benefit of, in association with, and in furtherance of a criminal street gang. Detective Flores answered affirmatively. Celeya contends that in opining that the hypothetical acts were committed for the benefit of, in association with, and in furtherance of a criminal street gang, Detective Flores "in essence attributed intent and guilt to each of the defendants." Such testimony, Celeya contends, was improper under People v. Killebrew (2002) 103 Cal.App.4th 644, 658-659 (Killebrew), which held that a gang expert may not testify that a specific individual had specific knowledge or possessed a specific intent.
After briefing and oral argument in this case, the California Supreme Court repeated its prior disapproval of Killebrew to the extent that Killebrew is read "as barring, or even limiting, the use of hypothetical questions." (People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3, citing People v. Gonzalez (2006) 38 Cal.4th 932.) The Supreme Court stated, "Even if expert testimony regarding the defendants themselves is improper, the use of hypothetical questions is proper." (Ibid.) Detective Flores did not testify "in essence" or otherwise that Celeya had any specific intent or that he was guilty of any specific crime. Instead, Detective Flores testified that the hypothetical acts were committed for the benefit of, in association with, and in furtherance of a criminal street gang. Such testimony was admissible. (Ibid.; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551, fn. 4; People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3 ["It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons"].)
2. Mexican Mafia
Celeya requested the trial court to preclude any evidence concerning the Mexican Mafia. The trial court denied the request, finding that "the fact that the M.S. gang is associated with the Mexican Mafia is relevant to the nature and course and scope of the gang." The trial court limited the evidence that would be admitted, however, barring any evidence about the "details" of the Mexican Mafia.
Detective Flores testified that the Mara Salvatrucha gang was affiliated with or fell under the umbrella of the Mexican Mafia. The Mexican Mafia was a gang of gangs, it controlled the jail and prison populations of Hispanic gang members, and its influence extended into the "streets." According to Detective Flores, the Mara Salvatrucha gang used the color blue because of its Mexican Mafia association and paid homage to the Mexican Mafia by using the number 13. Detective Flores further testified that the number "13" tattooed on Celeya's abdomen represented Mara Salvatrucha 13 "and affiliation of Surenos street gang under the umbrella of the Mexican Mafia." Celeya contends that the trial court erred in admitting this evidence due to the extremely prejudicial nature of evidence concerning the Mexican Mafia.
To prove the gang enhancement allegation, the prosecution had to prove that Mara Salvatrucha had a common identifying symbol. (People v. Gardeley, supra, 14 Cal.4th at p. 617.) Thus, the evidence concerning the Mexican Mafia was relevant to explaining the Mara Salvatrucha gang's use of the number 13 as a symbol for its gang. Accordingly, the trial court did not abuse its discretion in admitting evidence concerning the Mexican Mafia.
Even assuming that the trial court erred in admitting the Mexican Mafia evidence, such evidence did not render Celeya's trial fundamentally unfair, and it is not reasonably probable that Celeya would have received a more favorable result if the evidence had been excluded. (People v. Partida, supra, 37 Cal.4th at p. 439.) Although evidence concerning the Mexican Mafia can be prejudicial (People v. Albarran, supra, 149 Cal.App.4th at p. 231), the evidence adduced in this trial was not inflammatory because the trial court limited the scope of the evidence that could be presented, the evidence presented was brief, and the prosecution did not present evidence concerning the specific activities of the Mexican Mafia. In addition, there was other gang evidence that was properly admitted. Moreover, there was substantial eyewitness testimony implicating defendants in the murder and attempted murder.
3. Tattoos
Celeya contends that the "extensive depiction and discussion" of his tattoos that tied him to his gang and the Mexican Mafia were unnecessary because he was willing to stipulate to his gang affiliation. Using photographs, Detective Flores testified that Celeya had the tattoos "Coronado" under his left breast representing his clique, "13" on his abdomen representing Mara Salvatrucha 13 and its affiliation with the Mexican Mafia, "EM" and "ES" on his back, "MS X3" on his back, "MS" within diamonds on his wrist, "13" below the diamonds, and "MS" on his ankle with the devil's pitchfork as background.
Generally, the prosecution "cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness. [Citations.]" (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) The evidence concerning Celeya's tattoos plainly was relevant to Celeya's membership in the gang and whether the murder and attempted murder were committed for the benefit of, in association with, and in furtherance of a criminal street gang. The trial court did not abuse its discretion in admitting the evidence concerning Celeya's tattoos.
V. The Trial Court Properly Instructed The Jury
Celeya contends that the trial court erred in modifying CALJIC Nos. 17.19, 17.19.5, and 2.13; in failing to modify 3.02; and in failing to instruct the jury with several "pinpoint" instructions concerning the gang evidence. Pineda joins Celeya's contentions. The trial court properly instructed the jury.
A. Standard of Review
We review claims of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
B. Application of Relevant Principles
"When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. (People v. Benson (1990) 52 Cal.3d 754, 801; People v. Warren (1988) 45 Cal.3d 471, 487.)" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) We decide the meaning of an instruction by determining "whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (Id. at pp. 276-277.)
"'"[A] defendant has a right to an instruction that pinpoints the theory of the defense. . . ."' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.)
1. CALJIC Nos. 17.19 and 17.19.5
Pursuant to section 12022.53, subdivisions (b), (c), and (d), the amended information alleged, as to the murder and attempted murder offenses, that defendants personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury or death. Pursuant to section 12022.53, subdivision (e)(1), the amended information alleged that a principal personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury or death in committing the murder and attempted murder.
With respect to CALJIC No. 17.19, which addressed the personal use of a firearm allegations under section 12022.53, subdivisions (b) and (b) and (e)(1), Celeya challenges the trial court's modification of two paragraphs. Those paragraphs, unmodified, provide:
"If you find the defendant[s] guilty of [one or more of] the crime[s] charged [or an attempt to commit the crime[s] charged] [or a lesser and included felony offense], you must determine whether the defendant[s] personally used a firearm in the commission of [that] [those] [felony] [felonies]."
"The term 'personally used a firearm,' as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it."
The trial court modified those paragraphs (the challenged language is in italics) to provide:
"If you find a defendant guilty of one or more of the charged crimes or of a specified lesser included crime, you must determine whether that defendant and a principal personally used a firearm in the commission of that crime."
"The term 'personally used a firearm,' as used in this instruction, means that the defendant and a principal must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it."
The trial court made similar modifications to CALJIC No. 17.19.5. CALJIC No. 17.19.5 addressed the firearm allegations under section 12022.53, subdivisions (c), (d), (c) and (e)(1), and (d) and (e)(1).
Celeya appears to contend that the trial court modified CALJIC Nos. 17.19 and 17.19.5 in a way that permitted the jury to find that he personally used or discharged a firearm within the meaning of subdivisions (b), (c), and (d) of section 12022.53 even if the evidence only supported a finding that he was a principal in the murder or attempted murder. There is no reasonable likelihood that the jury misunderstood or misapplied the modified instructions in the manner Celeya suggests. Instead, a reasonable jury would interpret the modified instructions as requiring it to make separate determinations as to whether a defendant and a principal used or discharged a firearm in the commission of the murder and attempted murder. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 276-277.)
2. CALJIC No. 2.13
Betetta testified that defendants and their companions surrounded the tag banger and repeatedly asked him, "Where are you from?" Betetta testified the tag banger ultimately responded, "okay" or "SSK." Betetta further testified that he told a police officer that his brother was a member of the 17th Street Krooks, which was also known as "SSK." Later, Los Angeles Police Department Officer Juan Arenas testified that Betetta told him that his brother was a member of SSK which, Betetta had explained, stood for 17th Street Krooks.
The trial court instructed the jury with CALJIC No. 2.13, modifying the instruction to provide:
"Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in this trial may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion. However, as to any statement allegedly made by Alexander Betetta to LAPD Officer Arenas regarding his brother's membership in any group or organization, that statement may be considered by you only for the purpose of testing the credibility of Mr. Betetta and not as evidence of the truth of the fact as stated by that witness on that former occasion.
"If you disbelieve a witness's testimony that he or she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him or her describing that event."
Celeya appears to contend that Officer Arenas's testimony that Betetta told him that Cruz was a member of SSK was inconsistent with Betetta's purported testimony that he told a different officer "that it was the assault victim, the tag banger, who self identified as a SSK member." Unmodified, CALJIC No. 2.13 permits the jury to use prior inconsistent or consistent statements as "evidence of the truth of the facts stated by the witness on [a] former occasion." The statements or testimony Celeya cites are neither inconsistent nor consistent. That is, even if Betetta told an officer that the tag banger "self identified" as a member of SSK, such a statement is neither inconsistent or consistent with Betetta's statement to Officer Arenas that Cruz was a member of SSK. The statements address entirely different subjects. Accordingly, the trial court did not err in modifying CALJIC No. 2.13.
Betetta did not testify that he told an officer "that it was the assault victim, the tag banger, who self identified as a SSK member." Betetta testified that he heard the tag banger say "okay" or "SSK" when defendants and their companions asked him where he was from.
3. CALJIC No. 3.02
Celeya contends that the trial court erred in instructing with CALJIC No. 3.02because "one cannot at the same time be the actual perpetrator and an aider and abettor." As set forth above, Celeya's counsel objected to the instruction on the ground that it was not supported by the evidence. Celeya's counsel requested that if the trial court were to instruct the jury with CALJIC No. 3.02, the trial court modify the instruction to name the tag banger as the victim of the assault by means of force likely to produce great bodily injury and Betetta as the victim of the assault with a firearm. Pineda's counsel joined the objection. The trial court overruled the objection and denied Celeya's counsel's requested modification. The trial court found that there was a substantial evidentiary basis for giving CALJIC No. 3.02 without the requested modification.
See footnote 9, above, for the text of CALJIC No. 3.02.
As relevant, the prosecution's theory was that Celeya shot Cruz, Pineda shot Cortez, and Celeya aided and abetted Cortez's attempted murder. Celeya's argument appears to be that he could not be the actual perpetrator of Cruz's murder and also aid and abet in that murder. The challenged instruction, however, was not limited to Cruz's murder. The instruction also addressed the prosecution's theory that Celeya aided and abetted Pineda in Cortez's attempted murder as a direct aider and abettor or under a natural and probable consequences theory. Celeya does not contend that substantial evidence did not support CALJIC No. 3.02 with respect to those aiding and abetting theories.
4. The Pinpoint Instructions
Celeya requested the trial court to instruct the jury with seven pinpoint instructions concerning gang evidence, two of which instructions he subsequently withdrew. The trial court denied the request, finding the requested instructions repetitive or argumentative. The relevant requested instructions were as follows:
1. "Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion." (Citing People v. Perez (1981) 114 Cal.App.3d 470, 477.)
2. "Membership in a criminal street gang does NOT prove a specific intent to promote, further, or assist in criminal conduct by street gangs." (Citing In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.)
3. "Membership in a gang cannot served [sic] as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation that is necessary to establish aiding and abetting." (Citing Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1342.)
4. "Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. Such inferences are unreasonable based upon the theory of guilt by association." (Citing People v. Perez, supra, 114 Cal.App.3d at p. 477.)
5. "Experts may state their opinions based upon facts given in a hypothetical question asking them to assume the truth of the facts; however, the hypothetical must root itself in facts shown by the evidence." (Citing In re Frank S., supra, 141 Cal.App.4th at p. 1197.)
The trial court instructed the jury with CALJIC No. 17.24.3 on the manner in which the jury was to consider gang evidence. CALJIC No. 17.24.3 fully addressed the legal principles in the first four proposed instructions. CALJIC No. 17.24.3 provided:
"Evidence has been introduced for the purpose of showing criminal street gang activities and of criminal acts by gang members, other than the crimes for which defendants are on trial. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:
"(1) the motive for any charged or lesser included crimes; or
"(2) that charged or lesser included crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, within the meaning of the allegation pursuant to Penal Code section 186.22(b)(1).
"For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case.
"You are not permitted to consider such evidence for any other purpose."
Because CALJIC No. 17.24.3 fully addressed the legal principles in Celeya's first four proposed instructions, the proposed instructions were duplicative, and the trial court properly rejected them. (People v. Burney, supra, 47 Cal.4th at p. 246.)
The trial court also instructed the jury with CALJIC No. 2.82 on the manner in which the jury was to consider expert witness testimony based on hypothetical questions. CALJIC No. 2.82 fully addressed the legal principles in the fifth proposed instruction. CALJIC No. 2.82 provided:
"In examining an expert witness, counsel may ask a hypothetical question. This is a question in which the witness is asked to assume the truth of a set of facts, and to give an opinion based on that assumption.
"In permitting this type of question, the Court does not rule, and does not necessarily find that all of the assumed facts have been proved. It only determines that those assumed facts are within the possible range of the evidence. It is for you to decide from all the evidence whether or not the facts assumed in a hypothetical question have been proved. If you should decide that any assumption in a question has not been proved, you are to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts."
Because CALJIC No. 2.82 jury fully addressed the legal principles in Celeya's fifth proposed instruction, the proposed instruction was duplicative, and the trial court properly rejected it. (People v. Burney, supra, 47 Cal.4th at p. 246.)
VI. The Section 12022.53 Enhancements
With respect to Cruz's murder and the attempted murder of Cortez, the jury found true the allegations that Celeya and Pineda each personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The jury also found true the allegations with respect to both offenses that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), intentionally and personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)). As to Cruz's murder and Cortez's attempted murder, respectively, the trial court sentenced Celeya and Pineda to sentence enhancements under section 12022.53 as follows: an imposed sentence of 25 years to life under subdivision (d); a stayed term of 25 years to life under subdivisions (d) and (e)(1); two stayed terms of 20 years under subdivisions (c), and (c) and (e)(1); and two stayed terms of 10 years under subdivisions (b), and (b) and (e)(1). We asked the parties to submit supplemental briefs addressing the imposition of the enhancements.
A. Standard of Review
"Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [55 Cal.Rptr.2d 760, 920 P.2d 705].) We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 .) Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23 [36 Cal.Rptr.2d 317, 884 P.2d 1369].)" (People v. Carrasco (2006)137 Cal.App.4th 1050, 1058.)
B. Relevant Principles
Subdivision (b) provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including murder and attempted murder], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." Subdivision (c) provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." Subdivision (d) provides, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Section 12022.53, subdivision (e)(1) states, "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [^] (A) The person violated subdivision (b) of Section 186.22. [^] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." (§ 31.)
"Section 12022.53, subdivision (e)(1) creates an exception to the personal use requirement of section 12022.53, subdivisions (b) through (d) in a prosecution where findings have been made pursuant to section 186.22 . . . . In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances." (People v. Salas (2001) 89 Cal.App.4th 1275, 1281.) "Section 12022.53's subdivision (e)(1) has this effect: Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if . . . the defendant did not personally use or discharge a firearm but another principal did." (People v. Brookfield (2009) 47 Cal.4th 583, 590; People v. Garcia (2002) 28 Cal.4th 1166, 1171 ["Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.]"] .) Thus, subdivision (e)(1) of section 12022.53 permits the additional punishment under subdivisions (b), (c), and (d) when a defendant did not personally use or discharge a firearm within the meaning of subdivision (b), (c), or (d) if the offense was committed to benefit a criminal street and another principal used or discharged a firearm.
"Personal use" of a firearm "encompasses a situation where the defendant is armed and uses his firearm in furtherance of a series of related offenses that culminate in a fatal or near fatal shooting even though the defendant does not personally fire the actual shot." (People v. Berry (1993) 17 Cal.App.4th 332, 335 [construing "personal use" within the meaning of section 12022.5, subdivision (a)].) Thus, a defendant who used a firearm in the course of a robbery to shoot two victims was found to have personally used a firearm in the murder of a third victim of the robbery even though that victim was shot by a codefendant. (Id. at p. 339.)
C. Cruz's Murder
The evidence presented at trial established that Cruz was killed by a single gunshot wound. There was sufficient evidence from which a juror could find either that Celeya personally fired the fatal gunshot or that Pineda personally fired the fatal gunshot. Betetta testified that Celeya placed a semiautomatic handgun next to Cruz's chest and fired one shot. Detective Rico testified that Pineda admitted that he shot a man who was fighting with "Juan Carlos," and Ayala identified Pineda to the police as the person who shot and killed Cruz. In her closing argument, the prosecutor argued that the evidence showed that Celeya was the shooter and that Pineda aided and abetted Celeya in Cruz's murder.
As set forth above, Ayala denied at trial that he had seen who shot Cruz and disavowed his prior identification of Pineda.
As to Celeya, sufficient evidence supports the prosecutor's theory that Celeya shot Cruz. Accordingly, we affirm the jury's findings that Celeya personally used a firearm (§ 12022.53, subd. (b)), intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) with respect to Cruz's murder. Because Celeya, as the shooter, was properly sentenced directly under subdivisions (b), (c), and (d) of section 12022.53, sentencing him again under subdivisions (b), (c), and (d) as an aider and abettor pursuant to the expanded liability in subdivision (e)(1) was improper. Subdivision (e)(1) applies the enhancements under subdivisions (b), (c), and (d) to one who did not discharge the fatal bullet—not to the one who did.
As to Pineda, sufficient evidence supports the jury's finding that Pineda personally used a firearm within the meaning of subdivision (b) of section 12022.53 in connection with Cruz's murder. Betetta's testimony established that defendants instigated a gang motivated attack on the tag banger that escalated into Cruz's murder and Cortez's attempted murder. Betetta testified that Celeya and Pineda both were armed with different handguns. As Pineda personally used a firearm in furtherance of a series of related offenses that culminated in Cruz's murder, he personally used a firearm in connection with that murder. (See People v. Berry, supra, 17 Cal.App.4th p. 335.) Because Pineda, as a personal user of a firearm, was properly sentenced directly under subdivision (b) of section 12022.53, sentencing him again under subdivision (b) as an aider and abettor pursuant to the expanded liability in subdivision (e)(1) was improper.
As for the personal discharge enhancements under subdivisions (c) and (d) of section 12022.53, the prosecutor argued to the jury that Celeya was the shooter and that Pineda aided and abetted Celeya. Both Celeya and Pineda could not have fired the single bullet that struck Cruz. By presenting the case to the jury on the theory that Pineda aided and abetted Celeya in Cruz's shooting, the prosecutor, in effect, elected to proceed against Pineda on the section 12022.53, subdivisions (c) and (d) personal discharge enhancements pursuant to the expanded liability for aiders and abettors in subdivision (e)(1). (See People v. Garcia, supra, 28 Cal.4th at p. 1171 ["Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.]"].) The jury found both defendants guilty of Cruz's murder. Pineda does not contend that insufficient evidence supports the guilty verdicts. Thus, both defendants are principals in Cruz's murder within the meaning of section 31 and subdivision (e)(1) of section 12022.53. The jury found true the gang enhancement allegation under section 186.22, subdivision (b)(1) as to Pineda. Because Pineda was a principal in Cruz's murder, he violated section 186.22, subdivision (b)(1), and one of the principals (Celeya) personally discharged a firearm causing Cruz's death, sufficient evidence supports the jury's firearm enhancements against Pineda under section 12022.53, subdivisions (c) and (e)(1) and (d) and (e)(1). Thus, Pineda properly was sentenced as an aider and abettor under subdivisions (c) and (d) of section 12022.53 pursuant to the expanded liability in subdivision (e)(1) and not as the actual shooter under subdivisions (c) and (d) directly.
Based on her theory of the case, the prosecutor argued to the jury that Pineda could be found liable for the personal use and personal discharge of a firearm allegations under section 12022.53, subdivision (e)(1) even though he was not the shooter.
The trial court imposed on Pineda a stayed sentence of 20 years under subdivisions (c) and (e)(1) of section 12022.53 and a stayed sentence of 25 years to life under subdivisions (d) and (e)(1) of section 12022.53. When multiple enhancements are found true under section 12022.53, the trial court must impose the enhancement that provides the longest term of imprisonment. (§ 12022.53, subd. (f).) Accordingly, Pineda's sentence as to Cruz's murder is ordered modified to reflect an imposed sentence of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1).
D. Attempted Murder of Cortez
The evidence presented at trial established that Cortez was shot four times by the same gun. Sufficient evidence was presented to establish that Pineda was the person who shot Cortez. Sufficient evidence was not presented to establish that Celeya was the shooter. The prosecutor argued to the jury that the evidence showed that Pineda was the shooter and that Celeya aided and abetted Pineda in Cortez's attempted murder. According to the evidence, when the tag banger broke free from the gang group assault and ran toward the driveway, Pineda's curly-haired companion told Pineda to "go get him," referring to the tag banger. Pineda pursued the tag banger down the driveway and armed himself with a handgun during his pursuit. Shortly thereafter, Cortez, who, like the tag banger was wearing a baseball cap with "LA" on it was shot four times. As sufficient evidence establishes Pineda as the person who shot Cortez, sufficient evidence supports the section 12022.53, subdivisions (b), (c), and (d) enhancements as to Pineda. Because Pineda, as the shooter, was properly sentenced directly under subdivisions (b), (c), and (d) of section 12022.53, sentencing him again under subdivisions (b), (c), and (d) as an aider and abettor pursuant to the expanded liability in subdivision (e)(1) was improper.
As to Celeya, sufficient evidence supports the jury's finding that Celeya personally used a firearm within the meaning of subdivision (b) of section 12022.53 in connection with Cortez's attempted murder. As stated above, Betetta's testimony established that defendants instigated a gang motivated attack on the tag banger that escalated into Cruz's murder and Cortez's attempted murder. Betetta testified that Celeya and Pineda both were armed with different handguns. As Celeya personally used a firearm in furtherance of a series of related offenses that culminated in the attempted murder of Cortez, he personally used a firearm in connection with that murder. (See People v. Berry, supra, 17 Cal.App.4th p. 335.) Because Celeya, as a personal user of a firearm, was properly sentenced directly under subdivision (b) of section 12022.53, sentencing him again under subdivision (b) as an aider and abettor pursuant to the expanded liability in subdivision (e)(1) was improper.
As for the personal discharge enhancements under subdivisions (c) and (d) of section 12022.53, the prosecutor argued to the jury that Pineda was the shooter and that Celeya aided and abetted Pineda (the four bullets that struck Cortez were fired from the same gun). By presenting the case to the jury on the theory that Celeya aided and abetted Pineda in Cortez's shooting, the prosecutor, in effect, elected to proceed against Celeya on the section 12022.53, subdivisions (c) and (d) personal discharge enhancements pursuant to the expanded liability for aiders and abettors in subdivision (e)(1). (See People v. Garcia, supra, 28 Cal.4th at p. 1171 ["Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.]"].) The jury found both defendants guilty of Cortez's attempted murder. Celeya does not contend that insufficient evidence supports the guilty verdicts. Thus, both defendants are principals in Cortez's attempted murder within the meaning of section 31 and subdivision (e)(1) of section 12022.53. The jury found true the gang enhancement allegation under section 186.22, subdivision (b)(1) as to Celeya. Because Celeya was a principal in Cortez's attempted murder, he violated section 186.22, subdivision (b)(1), and one of the principals (Pineda) personally discharged a firearm causing great bodily injury to Cortez, sufficient evidence supports the jury's firearm enhancements against Celeya under section 12022.53, subdivisions (c) and (e)(1) and (d) and (e)(1). Thus, Celeya properly was sentenced as an aider and abettor under subdivisions (c) and (d) of section 12022.53 pursuant to the expanded liability in subdivision (e)(1) and not as the actual shooter under subdivisions (c) and (d) directly.
Based on her theory of the case, the prosecutor argued to the jury that Celeya could be found liable for the personal use and personal discharge of a firearm allegations under section 12022.53, subdivision (e)(1) even though he was not the shooter.
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The trial court imposed on Celeya a stayed sentence of 20 years under subdivisions (c) and (e)(1) of section 12022.53 and a stayed sentence of 25 years to life under subdivisions (d) and (e)(1) of section 12022.53. Imposing the enhancement that provides the longest term of imprisonment (§ 12022.53, subd. (f)), Celeya's sentence as to Cortez's attempted murder is ordered modified to reflect an imposed sentence of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1).
VII. Cumulative Prejudice
Celeya contends that this was a close case with conflicting evidence on all issues except for Pineda's confession that he shot a man who was fighting with Juan Carlos. Accordingly, Celeya argues, the cumulative prejudice from the trial court's errors rendered the trial so fundamentally flawed that Celeya was deprived of due process and the right to present a complete defense. Pineda joins Celeya's contention. Because we have rejected each of defendants' contended errors except for the sentence enhancement errors discussed in part VI, there is no cumulative prejudicial effect justifying reversal.
VIII. Restitution And Fines
Celeya contends that if his convictions are not reversed, his abstract of judgment should be amended to reflect that the trial court ordered that the restitution obligation to be paid to the Victim Compensation and Government Claims Board in the amount of $130,410.34 is joint and several between Pineda and Celeya. Respondent agrees and contends that Pineda's amended abstract of judgment likewise should be amended to reflect an obligation to pay the Victim Compensation and Government Claims Board the amount of $130,410.34 that is joint and several between Celeya and Pineda. Respondent contends that Celeya's abstract of judgment also should be amended to reflect that the trial court imposed a $60 court security fee (§ 1465.8) and a $60 criminal conviction assessment fee (Gov. Code, § 70373). Celeya agrees.
The trial court imposed on Celeya $60 in court security fees (§ 1465.8) and $60 in criminal conviction assessments (Gov. Code, § 70373). The fees and assessments are not reflected on Celeya's abstract of judgment. The trial court ordered that Celeya and Pineda are jointly and severally obligated to pay the Victim Compensation and Government Claims Board restitution in the amount of $130,410.34. That Pineda and Celeya are jointly and severally obligated to pay the restitution amount is not reflected on Pineda's amended abstract of judgment or on Celeya's abstract of judgment. We order the clerk of the trial court to prepare an amended abstract of judgment for Celeya that reflects $60 in court security fees and $60 in criminal conviction assessments and that Pineda is jointly and severally liable with Celeya to pay the Victim Compensation and Government Claims Board restitution in the amount of $130,410.34. The clerk of the trial court is also ordered to prepare an amended abstract of judgment for Pineda that reflects that Celeya is jointly and severally liable with Pineda to pay the Victim Compensation and Government Claims Board restitution in the amount of $130,410.34.
DISPOSITION
The clerk of the trial court is to prepare an amended abstract of judgment for Celeya as follows: with respect to the section 12022.53 sentence enhancements concerning Cruz's murder in count 1, reflect an imposed sentence of 25 years to life pursuant to subdivision (d), a stayed sentence of 20 years pursuant to subdivision (c), and a stayed term of 10 years pursuant to subdivision (b); with respect to the section 12022.53 sentence enhancements concerning the attempted murder of Cortez in count 2, reflect an imposed sentence of 25 years to life pursuant to subdivisions (d) and (e)(1), a stayed sentence of 20 years pursuant to subdivisions (c) and (e)(1), and a stayed sentence of 10 years pursuant to subdivision (b); $60 in court security fees; $60 in criminal conviction assessments; and that Pineda is jointly and severally liable with Celeya to pay the Victim Compensation and Government Claims Board restitution in the amount of $130,410.34. The clerk of the trial court is also ordered to prepare an amended abstract of judgment for Pineda as follows: with respect to the section 12022.53 sentence enhancements concerning Cruz's murder in count 1, reflect an imposed sentence of 25 years to life pursuant to subdivisions (d) and (e)(1), a stayed sentence of 20 years pursuant to subdivisions (c) and (e)(1), and a stayed term of 10 years pursuant to subdivision (b); with respect to the section 12022.53 sentence enhancements concerning the attempted murder of Cortez in count 2, reflect an imposed sentence of 25 years to life pursuant to subdivision (d), a stayed sentence of 20 years pursuant to subdivision (c), and a stayed sentence of 10 years pursuant to subdivision (b); and that Pineda is jointly and severally liable with Celeya to pay the Victim Compensation and Government Claims Board restitution in the amount of $130,410.34. Because of the complicated nature of the sentences, we believe it is appropriate and so order that the trial court actively and personally insure that the clerk accurately prepares a correct amended abstract of judgment that reflects the modifications to the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 425426.) The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.