Opinion
B270706
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ROCHA, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Armando Rocha. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., David A. Wildman and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA409258) APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval and Robert Perry, Judges. Affirmed in part, reversed and remanded in part. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Armando Rocha. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., David A. Wildman and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
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Armando Rocha and Javier Trujillo appealed their convictions of first degree murder, with gang and firearm use enhancements. In an opinion filed on September 12, 2017, we affirmed both convictions. The defendants filed petitions for review in the Supreme Court, and defendant Rocha also filed a supplemental petition for review based on the newly enacted amendment to Penal Code section 12022.53, subdivision (h), which was to take effect on January 1, 2018. The Supreme Court granted defendant Rocha's supplemental petition for review, and transferred the matter to this court "with directions to vacate its decision and reconsider the cause in light of S.B. 620 (Stats. 2017, ch. 682)." The court denied defendant Trujillo's petition for review.
Unless otherwise indicated, statutory references are to the Penal Code.
In accordance with the Supreme Court's order, we are vacating our September 12, 2017 decision with respect to defendant Rocha, and are reconsidering it in light of the amended statute. Our September 12, 2017 decision remains intact as to defendant Trujillo.
Rocha argues the court incorrectly instructed the jury that exculpatory testimony by an accomplice required corroboration. He also argues the prosecutor engaged in misconduct in rebuttal. He asks us to review the sealed record of the in camera hearing held on a discovery request, and argues cumulative error. We find no error. And finally, in his supplemental brief, he asks that we remand the cause for the trial court to exercise its discretion as to whether or not to strike or dismiss the firearm use enhancement. We remand the cause for that purpose; in all other respects we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Rocha and Trujillo are members of the Rose Hills gang, which operates in the area of the Rose Hills housing project in Los Angeles. Rocha is an older gang member, who uses the moniker "Giant" and has visible gang-related tattoos, including a "Rose Hill" tattoo on his neck. Trujillo is a younger recruit, known as "Sparks" or "Sparky."
On the evening of January 13, 2013, Rocha and Trujillo, in the company of Oscar Garcia and Richard Garcia (a Rose Hills gang member known as "Malo"), threatened several individuals at the housing project. Trujillo carried a gun, which he had shown Rocha earlier that day. Ariana Rebollar noticed the men when fresh graffiti appeared under her window. She continued to watch them throughout the evening and took photographs on her cell phone. Oscar identified Trujillo as the man wearing shorts in one photograph, and Rocha as the man with a stripe on his clothing. Witnesses also identified Trujillo as the man with the gun who wore a beanie or a knit hat with braids.
For concision and clarity, individuals whose surname is Garcia are referred to by their first name.
The four men approached Christian Garcia and his wife, and Trujillo pointed the gun at them. He asked Christian where he was from, and announced: "It's my gang. It's my hood. . . . [¶] This is Rose Hills gang." Rocha, who knew Christian, told Trujillo: "Don't shoot him. . . . That's the homie." The situation was diffused, and Trujillo and Christian shook hands.
Christian did not originally identify Trujillo as the person who pointed the gun at him and his wife, and did so only after having seen Rocha and Trujillo in custody. At trial, Oscar testified that "Malo and Giant . . . disrespect[ed]" Christian, and that Trujillo was to the side. Oscar could not recall if Trujillo displayed the gun.
The men also approached Luis Quezada, whose car radio was loud. Rocha introduced himself as "Giant from Rose Hills," demanded to know who Quezada was, and told him to turn down the volume. Oscar explained Quezada was "cool" because he lived in the housing project, and that appeared to calm Rocha down.
Trujillo stopped a van driven by Gonzallo Maravilla, a AAA locksmith who had been called to start up Samuel Arenivar's car. Trujillo approached the passenger's side of the van, opened the door, and pointed the gun at Maravilla. He asked Maravilla where he was from and announced this was "Rose Hills." He then asked Maravilla for money, threatened to kill him, took Maravilla's company cell phone, and told him to go.
Maravilla described his assailant as a Hispanic man weighing about 160 pounds; 5 feet, 6 inches tall; chubby; with a thin mustache; and wearing a knit hat. Although he could not pick Trujillo from a six pack and in a lineup, during a break at trial Maravilla volunteered that he recognized Trujillo and was allowed to identify him in court. Oscar testified that Malo had stopped Maravilla's van, but he had earlier told detectives he did not remember the robbery.
Rebollar observed Rocha and Trujillo briefly approach an elderly couple. Trujillo was holding something in his pocket. Rebollar heard Rocha tell him, "Not them. They're seniors," before both turned around.
At about 7:30 p.m., Rocha, Trujillo, and their cohorts surrounded the car of 17-year-old victim Fred Munguia, who had visited his girlfriend in the project. Munguia was not a gang member. Rocha stepped in front of the car and walked to the passenger's side. Trujillo went to the driver's side, asked Munguia where he was from, told him to lift his shirt, and started shooting. Nine casings fired from the same gun were recovered from the scene. The car was hit seven times, and Munguia died of four gunshot wounds.
In parts of the record, the victim is referred to as Freddy Munguia.
At trial, Oscar's testimony about the shooting was consistent with that of the other two eyewitnesses, Rebollar and Arenivar. All testified Rocha stopped Munguia's car. However, Oscar had told the detectives that Trujillo alone had stopped Munguia's car, that Rocha had not been around the car, and that after the shooting Rocha had said he did not know what was wrong with Trujillo.
After the shooting, Rocha and Oscar went to Christian's apartment. Rocha told Christian that "his homie shot some dude." Rocha and Oscar were arrested and interviewed, and a fugitive search was conducted for Trujillo, who eventually was arrested in Georgia.
Trujillo's girlfriend testified they had decided to move to Georgia because of the lower cost of living there.
Rocha and Trujillo were charged with the murder of Munguia (Pen. Code, § 187, subd. (a)), with gang and firearm use allegations. (§§ 186.22, subd. (b)(1)(C)), 12022.53, subds. (b)-(e).) Personal use and intentional discharge of a firearm causing death was alleged as to Trujillo. (§ 12022.53, subds. (b)-(d)). One prior serious felony, also a strike conviction, was alleged as to Rocha. (§ 667, subds. (a)(1) & (b)-(j), 1170.12.)
Oscar pleaded to being an accessory after the fact, and was given immunity to testify at trial in exchange for time served. He testified he had felt threatened by Rocha and Trujillo while in custody and had to be housed away from them. In response to a hypothetical based on the facts of this case, officer Rivera, the gang expert, opined that the murder and the confrontations that preceded it were for the benefit of the Rose Hills gang.
The jury convicted Rocha and Trujillo of first-degree murder and found the gang and firearm use allegations to be true. The court found the prior serious felony allegation as to Rocha to be true. Rocha was sentenced to 80 years to life in prison, consisting of 25 years to life for the murder conviction, doubled, plus 25 years to life for the gun use enhancement, and a five-year enhancement under section 667, subdivision (a)(1). No term was imposed for the gang enhancement. He was given custody credits and assessed various fines and fees.
This appeal followed.
DISCUSSION
I
Rocha challenges CALCRIM No. 301, as given, and a portion of the prosecutor's rebuttal.
A. CALCRIM No. 301
The trial judge, Robert Perry, instructed the jury with a modified version of CALCRIM No. 335 that stated Oscar was an accomplice, and the defendants could not be convicted of murder on his testimony unless it was supported by other evidence, however slight. The instruction further told the jury to be cautious of any accomplice testimony that tended to incriminate the defendants. On the other hand, CALCRIM No. 301, as modified, told the jury that the testimony of a single witness could prove any fact "except for the testimony of Oscar Garcia, which requires supporting evidence. . . ."
Rocha argues that these two instructions created the impression that even exculpatory accomplice testimony had to be corroborated, depriving him of the benefit of Oscar's prior inconsistent statements to detectives that Rocha had not stopped Munguia's car, was not around the car at the time of the shooting, was not telling Trujillo what to do, and later had said he did not know what was wrong with Trujillo.
When asked if Rocha was telling the others what to do on the evening of the shooting, Oscar initially told the detectives he did not know because "they had their conversations . . . a little distance from me." Later in the interview, Oscar clarified that the conversations he had referenced had occurred at the park. He denied that at the time of the shooting Rocha was "telling people what to do."
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "[T]he 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." (People v. Young (2005) 34 Cal.4th 1149, 1202, internal quotations and citations omitted.) We presume the jurors are intelligent persons, capable of understanding and correlating the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The instructions "'should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) If an instruction appears "'ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' [Citations.]" (Young, at p. 1202.) The arguments of counsel bear on "the probable impact of the instruction on the jury. [Citations.]" (Ibid.)
Rocha concedes that CALCRIM No. 335, as given, correctly instructed the jury that only incriminating accomplice testimony required corroboration. But he contends that CALCRIM No. 301 left the impression that all of Oscar's testimony had to be corroborated. The two instructions, read together, are reasonably susceptible to an interpretation that would support the judgment. Since CALCRIM No. 301 did not specifically mention exculpatory evidence, it did not create an irreconcilable conflict with CALCRIM No. 335, and the latter instruction may reasonably be interpreted to limit the scope of the former. (Cf. People v. Jeter (2005) 125 Cal.App.4th 1212, 1217 [irreconcilable conflict where some instructions required general intent and others specific intent for malice element of assault].)
In a supplemental letter, Rocha's counsel draws our attention to a recent case, People v. Smith (2017) 12 Cal.App.5th 766. In that case, a reversible instructional error was found on a record that showed the jury sent a note during deliberations indicating it was considering an accomplice's exculpatory trial testimony regarding the defendant, and only one juror believed the testimony did not require corroboration. That juror was dismissed. The record affirmatively showed that both the trial court and the jury were under the mistaken impression that all testimony by an accomplice (including exculpatory testimony) needed corroboration. (See id. at p. 782-784 & fn. 10.) There is no indication that the jury in this case considered Oscar's statements to the detectives to be exculpatory but rejected them for lack of corroboration.
The accomplice's trial testimony in Smith, supra, 12 Cal.App.5th 766 was clearly exculpatory of the defendant. (Id. at pp. 777, 781.) Oscar's trial testimony was not exculpatory of Rocha, and contrary to Rocha's representation, his defense did not center on Oscar's statements to the detectives. Rocha claims that his defense "relied heavily on Oscar's exculpatory statements," citing to his trial counsel's closing argument that "Oscar Garcia himself told you that it wasn't my client that stopped the car, it was Malo. Oscar Garcia was the closest person to see that and he said Malo stopped the car, not my client." This portion of trial counsel's argument contains an apparently erroneous reference to Oscar's trial testimony regarding the stopping of Maravilla's van, in which Oscar implicated Richard, also known as Malo. Rocha was not implicated in the stopping of the van since Maravilla identified Trujillo, not Rocha, as his assailant. Rocha's trial counsel did not refer to the interview with the detectives, in which Oscar had said that Trujillo, also known as Sparky, alone had stopped Munguia's car.
Rocha also cites to his trial counsel's insinuation that the prosecutor had urged the jury to "ignore Oscar," its main witness. Trial counsel's statement did not fairly represent the prosecutor's closing argument. The prosecutor told the jurors they could credit Oscar's entire testimony or reject it, which was consistent with the instruction under CALCRIM No. 226 that they could "believe all, part, or none of any witness's testimony." The prosecutor maintained that Oscar was generally believable despite the inconsistencies in his testimony. She did not mention the portions of Oscar's interview with the detectives on which Rocha relies on appeal, and did not suggest that any exculpatory statements by Oscar needed to be corroborated. Rather, the prosecutor relied on Oscar's trial testimony, which (consistently with the testimony of Rebollar and Arenivar) placed Rocha in front of Munguia's car.
In short, Rocha has not shown that the exculpatory statements on which he relies on appeal were central to his defense at trial, or that either the court or the prosecution misled the jury to ignore those statements as uncorroborated by other evidence. Nor are we convinced by Rocha's argument that any potential ambiguity in CALCRIM No. 301, as given, is comparable to the clearly erroneous instruction in Cool v. U. S. (1972) 409 U.S. 100. In Cool, the jury was unambiguously instructed to ignore exculpatory testimony of an accomplice "unless it believes beyond a reasonable doubt that the testimony is true." (Id. at p. 100.) Here, CALCRIM Nos. 301 and 335, when read together, do not instruct the jury to disregard exculpatory evidence. On the record before us, there is no reasonable likelihood the jury misapplied CALCRIM No. 301; hence, we find no reversible instructional error.
B. The Rebuttal
Rocha argues the prosecutor committed misconduct when she said in rebuttal: "[W]e have this saying. It's kind of among attorneys that do this criminal work. And one of it is, you know, when you're in a criminal case like this and you're in trial and you get in there and you're standing in front of a jury, you want to argue . . . first of all, if you're in there and you're thinking, all right. The law is on your side, you're going to really start arguing the law and you're going to disregard the facts; right? [¶] And then if it's the opposite, you think the facts are really on your side, then you get up and you argue those facts, but you stay away from the law; right? You don't get into that because that's not on your side. But when both the facts and the law are not on your side at all, then you get up and you start attacking the prosecutor. And when you hear argument—"
At this point, an objection by Rocha's counsel was overruled, and the prosecutor continued: "—about what the D.A. asked and didn't ask and the smoke and mirrors and these misconceptions, you've got to be very careful because now what he's doing is attacking really me and the case and he's not really getting everyone focused on the point. He's trying to make you all believe it wasn't his client. That's his argument." The prosecutor then told the jury to focus on the evidence "as it came out" at trial.
Rocha argues the prosecutor suggested his defense counsel was aware the facts and the law did not support his position but tried to "trick the jury . . . by attacking the prosecutor instead," implying that even defense counsel knew Rocha was guilty. Where a claim of misconduct rests on the prosecutor's comments to the jury, "'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
What Rocha fails to acknowledge is that the prosecutor's comments were made in rebuttal to the closing argument of Trujillo's counsel, who had stated: "The People are trying to prove this case using smoke and mirrors. I'm sure you've all seen magicians who have made things disappear right in front of your eyes. They have you looking over here while they do something over here. It's called misdirection. That's what the People are doing in this case. And as I get into my argument, I'll point out to you how I believe that they're using misdirection to try to prove my client guilty." Trujillo's counsel repeatedly accused the prosecutor of not asking witnesses questions relevant to the identification of his client as the shooter, and closed his argument with a parable about a wolf. The prosecutor repeatedly objected, and her references to "smoke and mirrors," "what the D.A. . . . didn't ask," and "who's the wolf" in rebuttal were direct quotations from the argument of Trujillo's counsel, whom she also mentioned by name.
The issue Rocha raises has been described as "an all too common occurrence in criminal trials—the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action. Clearly two improper arguments—two apparent wrongs—do not make for a right result. Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial. To help resolve this problem, courts have invoked what is sometimes called the 'invited response' or 'invited reply' rule . . . ." (U.S. v. Young (1985) 470 U.S. 1, 11.)
"It is settled that 'even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, does not constitute misconduct.' [Citations.]" (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1313.) The prosecutor's brief commentary on the tactics of defense counsel did not constitute an egregious pattern of conduct that violated due process. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214-1218.) On similar facts, in People v. Breaux (1991) 1 Cal.4th 281, the court found it was not misconduct to refer to a law school trial tactics class where students are taught that if they do not have either the law or the facts on their side, they should "'try to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense.'" (Id. at p. 305.) Read in context, the prosecutor's comments "could only have been understood as cautioning the jury to rely on the evidence introduced at trial and not as impugning the integrity of defense counsel." (Id. at p. 306.)
Moreover, "[e]ven where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. [Citation.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) Here, Trujillo's attorney and the prosecutor each suggested to the jury that the other had no case. It is difficult to find "any undue advantage to the People or disadvantage to" the defense from an exchange that resulted in a wash. (See People v. Hill (1967) 66 Cal.2d 536, 561.) Nor was the exchange prejudicial to Rocha personally since the jury, which heard the exchange, was not reasonably likely to view rebuttal comments directed at the closing argument of Trujillo's attorney as impugning Rocha's defense. As to him, there was no prejudicial prosecutorial misconduct.
II
Rocha asks us to examine the record of an in camera hearing conducted under section 1054.7 and argues cumulative error.
A. In Camera Hearing
The names and addresses of prosecution witnesses are subject to disclosure under section 1054.1, but section 1054.7 gives the trial court discretion to deny, restrict, or defer such disclosure for good cause. Good cause includes "threats or possible danger to the safety of a victim or witness." (Ibid.) A showing of good cause may be made in camera, and a "verbatim record" of the in camera hearing must be made available on appeal. (Ibid.)
Orders under section 1054.7 are subject to review for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 458 [good cause based on credible allegations defendant had conspired to kill witness]; see also People v. Williams (2013) 58 Cal.4th 197, 263 [good cause based on evidence witness's life had been threatened and detective declared disclosure would compromise witness's safety and integrity of investigation].) The argument that fear of the defendant does not prevent disclosure to defense counsel has been rejected. (Id. at p. 262.)
Oscar's trial counsel made an overly broad pretrial motion to discover the prosecution witnesses' unredacted personal information, including birth dates, phone numbers, and addresses. Attorneys for Rocha and Trujillo orally joined in the motion. At the open hearing, Oscar's attorney argued there was no evidence the witnesses believed he was a gang member or were afraid of him, and there was no danger to the witnesses' safety if their personal information was disclosed to defense counsel. The other attorneys made no argument. The deputy district attorney in charge of the case at the time asked to be allowed to have the investigative officer testify at an in-camera hearing to establish good cause under section 1054.7. The judge who heard the motion presumed that witnesses in a murder case may be in fear and held an in camera hearing on the issue of good cause.
We have reviewed the sealed record of the in camera hearing and find that the court did not abuse its discretion in denying disclosure of the requested personal information of prosecution witnesses.
B. Cumulative Error
Rocha contends that the cumulative prejudice of the claimed errors mandates reversal of his conviction. Since we reject the claims of error, the claim of cumulative error also fails. (See People v. Sapp (2003) 31 Cal.4th 240, 316.)
III
Following the enactment of Senate Bill 620, which amended section 12022.53, the Supreme Court granted Rocha's supplemental petition for review and transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of the amendment.
Before amendment, section 12022.53, subdivision (h) precluded a trial court from striking an allegation or finding of firearm use. Senate Bill 620, effective January 1, 2018, amends this statute to allow the sentencing court discretion to strike or dismiss a firearm use enhancement imposed under Penal Code section 1385. The amended statute provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§12022.53, subd. (h).)
A change in the law which lessens punishment applies to all cases that are not yet final. (In re Estrada (1965) 63 Cal.2d 740, 745.) The Supreme Court granted Rocha's petition for review on December 13, 2017, and his case thus was not final on January 1, 2018, the effective date of the statute. The amended statute applies to his sentence.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn.13; People v. Myers (1983) 148 Cal.App.3d 699, 704.) Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
In our case, there was no "erroneous assumption" that the court lacked discretion to strike the firearm use enhancement; former section 12022.53, subdivision (h) prohibited the court from doing so. Under the amended statute, the court has discretion to strike the enhancement, and remand is necessary so the sentencing court can exercise its discretion.
We express no opinion as to how the trial court should exercise its discretion on remand. We conclude only that it is the trial court's function to exercise this discretion in the first instance.
DISPOSITION
The matter is remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
COLLINS, J.