Opinion
G029178.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. FRANK REZA and RICHARD LOMELI, JR., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Frank Reza. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Richard Lomeli, Jr. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Bradley A. Weinreb and Robert Foster, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Richard Lomeli, Jr. and Frank Reza (collectively defendants) of the attempted murder of Damien Blakely. The jury found that Reza acted with premeditation and deliberation, personally used a deadly weapon, and inflicted great bodily injury, and that defendants committed the crime for the benefit of, at the direction of, or in association with the Eastside Buena Park (Eastside) criminal street gang. The court sentenced Lomeli to an aggregate 9-year term, and Reza received a sentence of 21 years.
Lomeli raises the following seven claims of error: (1) Insufficient evidence supports the attempted murder conviction, (2) insufficient evidence supports the gang enhancement finding, (3) the trial court erroneously excluded the entire transcript of his taped interview with police, (4) the trial court erroneously admitted evidence defendant possessed a bat in May 1998, an act for which no criminal charges were filed, (5) the court erred by giving CALJIC No. 2.28, the standard discovery violation instruction, (6) the court erroneously gave CALJIC No. 8.40, the standard instruction on involuntary manslaughter, and (7) the court miscalculated his presentence custody credits.
Reza raises the following five claims of error: (1) He received the ineffective assistance of counsel, (2) insufficient evidence supports the finding he committed willful, deliberate, premeditated attempted murder, (3) the court had a sua sponte duty to instruct the jury with CALJIC No. 5.32, (4) the circumstantial evidence instructions given to the jury, CALJIC Nos. 2.01 and 2.02, improperly shifted the burden of proof on the exculpatory mental states in imperfect self-defense and provocation, and (5) the cumulative impact of the courts instructional and evidentiary errors, and the sub-standard representation he received, deprived him of his state and federal Constitutional right to a fair trial. Appellate counsel joined in each others argument. However, with two noted exceptions, the arguments are specific to their respective clients.
We modify the judgment with respect to Lomelis claim of credit miscalculation, but in all other respects affirm the convictions.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)
On October 4, 1998, Aida Perez and Wendy Diaz drove a rental car from Inglewood, California, to Buena Park, California to visit Wendys boyfriend. Her boyfriend is a member of Eastside. On the way, they recognized and picked up Lomeli and Reza, also Eastside members. Perez had seen Reza several days earlier. She was a little vague on when, but claimed she had also recently returned Rezas knife. Nevertheless, Diaz and Perez denied Reza or Lomeli possessed a knife on October 4.
On Kingman Avenue in Buena Park, Perez either cut off or drove too slowly for Damien Blakely. Blakely, his girlfriend Kathryn Pogue, and friend Jose Acosta, were returning from a wedding reception and on their way to another party. Blakely and Pogue were under the influence of alcohol. Blakely honked his car horn. Lomeli and Reza, who were in the rear passenger seat of Perezs car, gave the universal hand-sign for frustrated drivers, and "flipped [him] off." Blakely, who described Lomeli and Reza as two bald Hispanic males, returned the gesture. Reza and Lomeli gestured at Blakely to "come on," and Blakely, who was on parole and a former member of the Westside Rockwood criminal street gang, was itching for a fight.
Blakely pursued Perezs car for about ten minutes. During this time Perez twice pulled to the side of the road and opened her car doors, only to speed away when Blakely came close. Diaz heard Perez say, "Oh my God, they have a gun." Finally, after nearly colliding with a parked car, Perez stopped on Artesia Boulevard, an area replete with gang graffiti and a known hangout of Eastside. Blakely pulled his car along side and slightly behind Perezs car.
Reza and Lomeli exited Perezs car and were immediately joined by two to four additional bald Hispanic men. Lomeli hit Blakelys windshield with a crowbar. Reza reached across Pogue, who was seated in the front passenger seat of Blakelys car, and stabbed Blakely in the chest and head. Someone shouted, "[t]hey [have] a gun," and Blakely drove off. His assailants scattered on foot and in Perezs car. A witness saw someone return to the scene a few minutes later to retrieve something from the street.
Blakely, who did not know he had been injured, started to have trouble breathing. He soon realized he had been stabbed in the chest. Pogue noticed a knife protruding from Blakelys forehead. Blakely stopped his car and summoned paramedics. He spent the next three days in the hospital and underwent surgery to remove the knife from his forehead.
Lomeli gave a statement to police in January 1999. He initially denied any involvement in the incident, but later admitted to being present at the scene. Once he admitted being at the scene, he initially denied getting out of Perezs car, but eventually admitted smashing Blakelys windshield with a crowbar.
The prosecutions gang expert opined that defendants acted for the benefit of Eastside. He based his opinion on his expertise and knowledge of gang culture and behavior and the fact that defendants, two Eastside members, would consider Blakelys hand gesture to be a challenge. He also opined that Perez lured Blakely to Eastside territory and near an Eastside "crash pad," where they could expect other gang members to lend assistance or provide "backup."
Neither defendant testified at trial. Lomeli called a gang expert, Dr. Lopez, to testify this was not a gang-related crime but merely an incident of road rage. Lopez opined Blakelys anger prompted the defendants to act in self-defense. Lomeli also contended he did not know Reza possessed a knife and could not have reasonably foreseen that Reza would stab Blakely.
II
DISCUSSION
Lomelis contentions
1. Sufficiency of the evidence
Lomeli claims the evidence adduced at trial is insufficient to support the attempted murder conviction. In addressing such challenges, "the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]" [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
The prosecutor argued Reza stabbed Blakely and Lomeli aided and abetted the commission of the crime. Lomeli claims he neither facilitated nor encouraged the commission of the offense and Rezas actions were not reasonably foreseeable. We disagree.
"The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must `act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] . . . Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, first italics in original, second italics added.)
A reasonable jury could have concluded Lomeli knew Reza possessed a knife. He and Reza exited their car and charged Blakelys car together with several other individuals. Reza used his knife. Lomeli facilitated the crime by keeping Blakely in his car and defenseless. Even assuming Lomeli did not know how Reza would use the knife he possessed, once Lomeli acted to assist his fellow gang member in the commission of one offense he is responsible for that crime and any other reasonably foreseeable. The evidence supports the jurys verdict.
2. Gang enhancement
Defendants contend insufficient evidence supports the jurys true finding on the Penal Code section 186.22, subdivision (b)(1) gang enhancement because there is no evidence they acted for the benefit of Eastside. We disagree.
Section 186.22, part of the Street Terrorism Enforcement and Prevention Act (STEP Act), imposes a sentence enhancement or increased penalty for any person who is convicted of a felony "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) & (4).) The standard of review for gang findings, as with convictions, is substantial evidence. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
The prosecution relied on the fact of defendants mutual gang membership, the area in which the crime occurred, and typical gang behavior when disrespected or challenged. Blakely testified that he did not recognize "the finger" as a gang sign and had no idea he was following gang members. Nevertheless, the prosecutions gang expert testified typical gang members would respond to any type of disrespect from rival gang members or civilians. Defendants lured Blakely into Eastside territory and to within 200 feet of a known gang crash pad. According to the prosecutions gang expert, the commission of a violent crime in response to a challenge, committed in gang territory, would benefit Eastside by increased respect and an enhanced reputation. Thus, substantial evidence supports the jurys finding.
3 & 4. Evidentiary errors
"A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.]" (People v. Coddington (2000) 23 Cal.4th 529, 587-588, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Lomeli first contends the trial court erroneously excluded portions of his taped interview with police. The trial court allowed the prosecution to enter a redacted transcript over defense counsels objection. Evidence Code section 356 provides, "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Italics added.) The court concluded the excluded portions were irrelevant and unnecessary. No abuse of discretion is apparent from our review of the record.
Lomeli also contends the trial court erroneously admitted evidence he possessed a bat on May 1, 1998, an act for which no criminal charges were filed. Lomeli contends the evidence is irrelevant and unduly prejudicial. We disagree. Officer Manning testified that he responded to Buena Park High School upon a report of a fight involving someone armed with a bat. Lomeli was walking away from the school with a bat in his hands when Manning stopped him. Defendant admitted being a member of Eastside and claimed the bat was for self-protection from rival gang members. This is some evidence of motive and intent, and not so unduly prejudicial as to require exclusion. There is no basis to reverse the trial courts exercise of its discretion.
5 & 6. Instructional errors
"Trial courts only have a sua sponte duty to instruct on `the general principles of law relevant to and governing the case. [Citation.] `That obligation includes instructions on all of the elements of a charged offense [citation], and on recognized `defenses . . . and on the relationship of these defenses to the elements of the charged offense. [Citations.]" (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) "There is no error in a trial courts failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Lomeli contends his attorney complied with Penal Code section 1054. Consequently, the court erred by giving CALJIC No. 2.28, the standard discovery violation instruction. We disagree.
Lomelis counsel advised the court of the existence of Dr. Lopez as a potential witness before trial. If called as a witness, counsel was to provide the court and the other parties with Lopezs curriculum vitae and any reports he produced. Defense counsel produced the curriculum vitae, but also produced only a few pages of a multi-page report during the lunch recess immediately before Lopezs testimony. The prosecution claimed surprise and objected to Lopezs testimony on the ground the defense had not provided the document as ordered, had provided only a few pages of a multi-page report, and produced it too late for the prosecution to adequately prepare for cross-examination. Defense counsel explained there had been some mix-up in his office, of which he was unaware, and that he had received the report only the night before. The court rejected this explanation, but allowed Lopez to testify.
Section 1054.5 provides for several remedies to discovery violations that are available, upon timely request, to either a defendant or the prosecution during trial. "Where punishment is a consideration, the court has available to it a wide array of consequences including fines, contempts, instructions to the jury regarding evaluating the evidence . . . ." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) We find no abuse of the courts discretion in advising the jury Lomeli failed to timely produced discovery relevant to Lopezs testimony. Nor did the courts admonition violate Loemlis constitutional right to present a defense.
Lomeli also contends the court erroneously read CALJIC No. 8.40 to the jury. He contends intent to kill is not an element of attempted voluntary manslaughter. The court gave a modified version of CALJIC No. 8.40 and told the jury it applied solely to count one and the lesser included offense attempted voluntary manslaughter. True, the instruction appears incorrect. (People v. Blakely (2000) 23 Cal.4th 82, 88-89.) But defendant can hardly complain that the jury was told to find something it did not have to find. Further, attempt requires a specific intent. Thus, while a completed voluntary manslaughter might, under some circumstances, be unintentional, an attempted voluntary manslaughter may not. (See People v. Montes (Oct. 31, 2003 Nos. F040612, F040618) __ Cal.App.4th __, [2003 D.A.R. 12021.) Thus, the error, if any, was harmless.
7. Presentence custody credits
Lomeli contends he is entitled to 849 actual days of presentence credits, not the 844 days awarded by the court. The Attorney General refused to address the issue other than to advise this court defendants first remedy is to the trial court. As the Attorney General admits, this court may entertain the issue without adjudication in the trial court because defendant has raised other issues on appeal. (& sect; 1237.1.) Nevertheless, the Attorney General refused to calculate defendants credits and instead acknowledged, "If [] Loemlis calculation of pre-sentence custody and conduct credits is correct, he is entitled to five additional days of pre-sentence custody credit and one additional day of conduct credits." We treat this statement as a concession of the issue. (Cal. Rules of Court, rule 14(a)(1)(B).) The judgment shall be modified to reflect 849 days of presentence custody credit and one additional day of conduct credit. (§ 1260.)
Rezas contentions
1. Ineffective assistance of counsel
Reza contends his counsels performance fell below an objective standard of reasonableness. "`To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 674.) "Because after a conviction it is all too easy to criticize defense counsel and claim ineffective assistance, a court must eliminate the distorting effects of hindsight by indulging `a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy. [Citations.] [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 158.)
Reza takes issue with counsels admission his client stabbed the victim. Counsel made a tactical decision to concede certain facts and argue others. The fact Reza stabbed Blakely was not in dispute. The question was one of intent. To that end, counsel argued self-defense and absence of malice. In closing argument, counsel muddled the difference between murder and voluntary manslaughter, but his misstatement does not amount to ineffective assistance of counsel.
Reza contends counsels failure to request an instruction on the use of force to defend another, CALJIC No. 5.45, constitutes ineffective assistance of counsel. We disagree. This concept was suggested by counsel, but not specifically argued. Further there is no evidence to support the theory. Therefore, the court was under no sua sponte duty to instruct the jury and counsel cannot be faulted for focusing on other, more viable defenses.
Reza also contends his counsels failure to object to expert testimony on the ultimate issue in the case constitutes a deprivation of his Sixth Amendment right to effective assistance of counsel. This challenge to the use of expert testimony in gang cases has been soundly rejected. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) Expert opinion testimony on the ultimate issue, i.e., was the crime gang-related, is permissible.
2. Insufficiency of the evidence
Reza contends the evidence is insufficient to sustain the finding he committed willful, deliberate, premeditated attempted murder. "`Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] [Citation.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1463.)
Rejecting defendants explanation of events, which the jury was entitled to do, the evidence supports a finding of premeditation. However Reza became embroiled in this incident, his resolution of the problem suggests an intent to kill. That Reza and Lomeli contributed to the decision to stop their car near an Eastside gang crash-pad is a reasonable inference from the evidence. Once there, Reza chose to exit his car, confront Blakely with a knife, and stab him in the head and chest. Few areas of the body, once injured, are more likely to produce death than these. At multiple points in time, Reza made a conscious decision to pursue his course of violence. The evidence supports the verdict.
3 & 4. Instructional errors
"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.]" (People v. Ervin (2000) 22 Cal.4th 48, 90.) The correctness of jury instructions "is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]" (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.) While it is the courts duty to give instructions on the general principles of law involved, it is the defendants responsibility to request instructions that "pinpoint" a theory of the defense. (People v. Silva (2001) 25 Cal.4th 345, 371; People v. Saille (1991) 54 Cal.3d 1103, 1119.)
Reza first contends the court had a sua sponte duty to instruct the jury with CALJIC No. 5.32 because defense of another was supported by substantial evidence and central to Rezas defense. We disagree. As stated above the evidence did not support giving the instruction, even had it been requested by counsel. Therefore, the court had no sua sponte duty to instruct as suggested.
Reza also contends circumstantial evidence instructions given to the jury, CALJIC Nos. 2.01 and 2.02, improperly shifted the burden of proof on the exculpatory mental states in imperfect self-defense and provocation to him. Again, we disagree. CALJIC Nos. 2.01 and 2.02 are correct statements of the law. (People v. Freeman (1994) 8 Cal.4th 450, 507.) They were given in reference to defendants mental states, something routinely proved by circumstantial evidence. Any pinpoint instruction on the issue was the responsibility of Rezas trial counsel, but we discern no prejudice from counsels decision to omit these instructions and find no sua sponte duty of the court to provide a modified version.
5. Cumulative error
Defendants contend the cumulative impact of the instructional and evidentiary errors, and the sub-standard representation Reza received, deprived them of their state and federal Constitutional right to a fair trial. We disagree. We have individually considered each claim of error. In this 9-day trial, which generated over 1,400 pages of reporters transcript, the few errors that occurred were harmless under any standard, whether considered individually or collectively. We find no deprivation of rights guaranteed under either the state or federal Constitutions. Defendants were entitled to a fair trial, not a perfect one. (People v. Box (2000) 23 Cal.4th 1153, 1214.) They received a fair trial.
III
DISPOSITION
With respect to Lomeli, the trial court is directed to prepare an amended abstract of judgment to reflect 849 days of presentence custody credit and one additional day of conduct credit (§ 1260) and to forward a certified copy to the Department of Corrections. (§ 1260.) As modified, the judgment is affirmed. With respect to Reza, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., OLEARY, J. --------------- Notes: CALJIC No. 2.28, as read to the jury, stated: "The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of truth, save court time and avoid any surprises that may arise during the course of the trial. [¶] Concealment of evidence or delay in the disclosure of evidence may deny a party sufficient opportunity to subpoena necessary witnesses or to produce evidence that may exist to rebut the noncomplying partys evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial and any new evidence discovered within 30 days of trial must be disclosed immediately. In this case defendant [Lomelis counsel] failed to timely disclose in this courts estimation the evidence relating to the testimony of Dr. Lopez. [¶] Although the defendants failure to timely disclose evidence was without lawful justification the court has under the law permitted the production of this evidence during the trial. [¶] The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, to something trivial or subject matter already established by other credible evidence. [& para;] A defendants failure to timely disclose the evidence he intends to [product at trial may not be considered against any other defendant unless you find that the other defendant authorized the failure to timely disclose."