Opinion
2d Crim. No. B225659 Super. Ct. No. 1309149
01-09-2012
THE PEOPLE, Plaintiff and Respondent, v. JEREMY DANIEL WALLIN, Defendant and Appellant.
Linda C. Rush for Defendant and Appellant. 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, Jaime L. Fuster, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
(Santa Barbara County)
Jeremy Daniel Wallin appeals a judgment following conviction of first degree murder, kidnapping, and second degree robbery, with findings that he committed the murder during commission of a kidnapping or robbery (special circumstance), committed the murder as a member of a criminal street gang to further the gang's activities (special circumstance), personally and intentionally discharged a firearm causing death, committed the crimes to benefit a criminal street gang, and served a prior prison term. (Pen. Code, §§ 187, subd. (a), 189, 207, subd. (a), 211, 190.2, subds. (a)(17) & 22), 12022.53, subd. (d), 186.22, subd. (b), 667.5, subd. (b).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
This appeal concerns the 2004 execution-style killing of Jeremy Grinder, an associate member of the "Northwest" criminal street gang in Santa Maria. At trial, Northwest gang members testified that Wallin, a Northwest "shot-caller," killed Grinder in retaliation for not defending himself during his confinement at Youth Authority and for selling firearms to a rival gang. Among other things, the gang members who testified at trial received immunity from prosecution for Grinder's murder or other gang-related crimes in which they participated, as well as witness relocation funds.
Corporal Daniel Cohen, a Santa Maria police officer and gang investigator, testified that Northwest is a criminal street gang in the Evans Park area. Northwest members are involved in narcotics sales, robberies, and violent assaults, including murder. Cohen cited specific examples of Northwest members who have been convicted of murder, robbery, and assault.
Cohen testified that respect, reputation, and retaliation are important Northwest gang values. He stated that when gang members "perceive[] they're being disrespected, they have to challenge that person [who is] disrespecting them, and that's done through violence." A gang member who is perceived as weak also diminishes the reputation of the gang and he may be disciplined by a violent "beat-down." Cohen stated that an atmosphere of fear and intimidation allows a street gang to commit crimes with impunity because victims and witnesses are reluctant to cooperate with law enforcement.
During previous arrests, Wallin admitted his Northwest membership. He has tattoos reflecting membership and symbols of street gang culture, e.g., tombstones for deceased gang members. In 2002, Cohen discovered a notebook in Wallin's automobile containing writings exalting gang culture.
Jeremy Grinder, an associate member of Northwest, was also involved in criminal activities. During his confinement at the Youth Authority, Grinder reportedly did not defend himself against other inmates and thus gave Northwest "a bad name."
In August 2004, Wallin ordered Northwest member Issac Berumen to assault Grinder for "messing up." Berumen was a younger Northwest member who had committed theft and assault crimes on behalf of the gang. He stated that he feared retribution from Wallin if he did not follow his orders.
In July or August 2004, Wallin visited A. J. De La Torre, a longtime Northwest member who had been convicted of assault and theft crimes. Wallin asked De La Torre "to set up Jeremy Grinder so . . . he could kill him." Wallin was "upset" because he suspected that Grinder was selling firearms to a rival gang. De La Torre refused to assist Wallin, who became angry and denounced De La Torre. Wallin later ordered Northwest members to assault De La Torre, who subsequently was "jumped" at a party.
In September 2004, Berumen, Fernando Silva, and other Northwest members were involved in a gang shooting in Santa Maria. They fled to San Diego in a gray-colored Chevrolet Malibu automobile driven by Anna Chase. Within several weeks, they returned to Santa Maria to the home of Patricia Perez. Among Northwest members, Perez's home was known as a "tweaker house," a place to use methamphetamine.
In late September 2004, De La Torre warned Grinder not to frequent the Perez residence. Despite the warning, Grinder visited the home and brought methamphetamine. Silva telephoned Wallin and informed him that Grinder was present. Silva inquired if he and the others should "smash" Grinder. Wallin responded that they should wait.
Shortly thereafter, Wallin appeared at the Perez residence. He was shirtless (displaying his gang tattoos), and wore a Halloween mask. In his waistband, he carried a .38-caliber revolver that he obtained from fellow gang member Raymond Ruiz. Wallin entered the master bedroom and ordered any unacknowledged gang members to leave. Rudy Ramos and Angela Trevino-Salazar left the room; Berumen, Silva, Grinder, and Elizabeth Bagood remained. Wallin pointed the gun at Grinder and stated: "Nobody sells guns against my little homies. You messed up."
Wallin then ordered Grinder to undress and relinquish his Raiders jersey, Raiders watch, and jewelry. Wallin ordered Bagood and Silva to tie Grinder's hands and ankles and cover his mouth. Using duct tape, Bagood and Silva complied with Wallin's instructions and then placed Grinder face-down in the bathtub. Thereafter, the group continued to smoke methamphetamine, including methamphetamine taken from Grinder's sock. In the early morning, Perez returned home, but Wallin urged her to leave because he did not want her to see Grinder in the bathtub. Wallin and Bagood then left after ordering Berumen and Silva to guard Grinder.
At approximately 7:30 or 8:30 a.m. the following day, Wallin returned to Perez's residence. He instructed Berumen and Silva, "[G]et that fool ready. We're going to take a little ride." Berumen and Silva removed Grinder's bindings and ordered him to dress. Once dressed, they retied him and walked him to Chase's Malibu automobile. Grinder sat in the backseat with Silva. Berumen sat in the front passenger seat and Wallin drove. Berumen knew that "something bad was going to happen."
Wallin drove for approximately one hour to a rural area near New Cuyama. He turned from the highway and drove toward a large drainage pipe. Wallin ordered Grinder from the automobile, directed him to partially disrobe, and walked him toward the pipe. Grinder entered the pipe and Wallin stood outside. Berumen and Silva saw Wallin fire a .38-caliber revolver toward the pipe and then sprint back to the automobile. Wallin handed Grinder's clothing to Silva and stated: "I made that fool get on his knees and I domed him." Wallin also stated that he shot Grinder "to lead by example."
Wallin returned to Santa Maria and warned Berumen and Silva not to discuss the killing. Silva and other gang members later burned Grinder's clothing. Wallin returned the .38 caliber revolver to Ruiz and stated that the weapon was "[h]otter than hot" and that he had shot Grinder. Ruiz discarded the revolver in a trash container after unsuccessfully attempting to destroy it. Wallin gave Grinder's watch and his Raiders jersey to another gang member. Berumen, Silva, and others went to Mexico in Chase's automobile to avoid apprehension for Grinder's murder. Members of the group were arrested and imprisoned in Mexico, however, for an unrelated crime. Berumen and Silva later returned to Santa Maria.
On January 11, 2005, a local resident walking her dogs came upon Grinder's remains and alerted law enforcement. Several days later, a forensic pathologist performed an autopsy on the remains and determined that Grinder died from a gunshot wound to the back of the head. The pathologist opined that a large caliber firearm was used in the shooting.
At trial, Berumen, Silva, Ruiz, and De La Torre testified against Wallin. Berumen had pleaded nolo contendere to being an accessory to Grinder's murder. Ruiz agreed to testify against Wallin in exchange for dismissal of a second strike robbery prosecution, among other things. He pleaded guilty to being an accessory after the fact to Grinder's murder, received a grant of probation, and received witness relocation funds. De La Torre already had relocated in a witness protection program following his testimony in another prosecution. Silva received immunity from prosecution for Grinder's murder, dismissal of pending drug charges, and closure of an uncharged robbery.
Wallin presented evidence that in the summer of 2004, he was employed and worked long hours. His girlfriend testified that he did not use drugs or associate with Northwest gang members.
Patricia Perez also testified that she did not recall a time when Wallin, Grinder, Berumen, Silva, and Bagood were together in her home. She conceded that she struggled with drug addiction and did not have a good memory of events in 2004.
The jury convicted Wallin of first degree murder, kidnapping, and second degree robbery. (§§ 187, subd. (a), 189, 207, subd. (a), 211.) It also found that he committed the murder during commission of a kidnapping or robbery (special circumstance), committed the murder as a criminal street gang member to further the gang's activities (special circumstance), intentionally and personally discharged a firearm causing death, committed the crimes for the benefit of a criminal street gang, and served a prior prison term. (§§ 190.2, subds. (a)(17) & (22), 12022.53, subd. (d), 186.22, subd. (b), 667.5, subd. (b).) The trial court sentenced Wallin to a determinate term of 23 years 4 months, an indeterminate term of 75 years to life, and an indeterminate term of life without the possibility of parole. It imposed a $10,000 restitution fine and a suspended $10,000 parole revocation restitution fine, and ordered restitution to the Victim's Compensation Government Claim Board. (§§ 1202.4, subds. (b) & (f), 1202.45.) The court awarded Wallin 505 days of presentence custody credit.
Wallin appeals and contends that the trial court abused its discretion by denying his motion for a new trial made on grounds that 1) the court erred by denying his pretrial motion for a continuance, and 2) he was deprived of important defense witnesses. He argues that the errors are prejudicial per se.
DISCUSSION
Factual and Procedural Background for New Trial Motion
Several months prior to trial, Wallin moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. On November 24, 2009, the trial court granted the request and warned Wallin that trial had already been continued to and set for February 8, 2010. On December 17, 2009, Wallin filed a motion to continue trial asserting that discovery materials were extensive (4,000 written pages, 46 DVD's, and 18 CD's, among other things) and that his investigator had not yet interviewed witnesses. On December 29, 2009, the trial court denied Wallin's request for a continuance, deciding that he had not demonstrated good cause. In its written ruling, the court stated that the prosecution involved four or five main witnesses, three of whom had testified at the preliminary hearing and had been extensively cross-examined. The court also stated: "One of the main focuses of [the] defense is to discredit these witnesses and, on the present record, defendant can be prepared to do this effectively by the start of trial on February 8, 2010." Trial then commenced on February 8, 2010.
Following trial, Wallin moved for a new trial on grounds that the trial court erred by denying his pretrial request for a continuance, and that the failure of two defense witnesses to appear and testify denied him a fair trial. The court denied the motion.
Wallin submitted declarations from Ramos and Salazar-Trevino as part of his new trial motion. Ramos declared that he did not recall Wallin walking into the Perez bedroom, wearing a Halloween mask, and exposing a firearm. Salazar-Trevino also declared that she did not recall the incident and that she did not hold any conversation with Ruiz regarding Grinder's murder.
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I.
Wallin argues that the trial court erred by denying his new trial motion based upon the court's failure to grant him a pretrial continuance to prepare an adequate defense. He points out that he has a "general constitutional right to adequate time for the preparation of his defense." (People v. Maddox (1967) 67 Cal.2d 647, 655.) Wallin adds that well settled law establishes that the trial court abuses its discretion by denying a continuance to a defendant who seeks to represent himself close to trial. (E.g., People v. Cruz (1978) 83 Cal.App.3d 308, 325-326 [abuse of discretion to deny continuance to defendant granted propria persona status one month before trial].) He asserts that the court erred by considering that witnesses were in protective custody.
Wallin points out that his former counsel had done little to prepare for trial, he did not receive the nearly 4,000 pages of written discovery until December 15, 2009, jail personnel did not permit him to watch the 46 DVD's and 18 CD's alone until December 23, 2009, the prosecutor provided additional discovery in January 2010 (transcripts of interviews and fully complete audio recordings), his assigned investigator was not experienced in working with a defendant in propria persona, and there was a delay in receiving funds for legal supplies and investigation.
Section 1050, subdivision (e) permits the trial court to grant a continuance of trial "only upon a showing of good cause." "Whether good cause exists is a question for the trial court's discretion." (People v. Doolin (2009) 45 Cal.4th 390, 450.) The trial court must consider the benefit that the moving party anticipates from the continuance, the likelihood of obtaining such benefit, the burden on witnesses, jurors and the court, and whether justice will be accomplished or defeated by granting the motion. (Ibid.) The court may not exercise its discretion so as to deprive the defendant or his attorney of a reasonable opportunity to prepare a defense. (Ibid.)On appeal, the reviewing court considers the circumstances of the case and the reasons presented for the continuance request to determine whether the denial of a continuance is "so arbitrary as to deny due process." (Ibid.)Moreover, an order denying a continuance is "seldom successfully attacked." (People v. Beames (2007) 40 Cal.4th 907, 920.)
The trial court did not abuse its discretion by denying Wallin's motion for a pretrial continuance. On the day that Wallin sought to represent himself, the court had continued the trial from January 11, 2010, to February 8, 2010, at the request of Wallin's then counsel. Wallin already had the May 2009 preliminary hearing transcripts and copies of the police reports written before May 2009. By mid-December, Wallin received most of the discovery and the trial court intervened with jail officials to permit Wallin to view the DVD's and listen to the CD recordings of interviews. Wallin informed the trial court that he had been studying criminal law for one year and that "one of [his] biggest defenses" was to impeach the four Northwest gang members who were testifying against him.
In addition, Wallin had the assistance of an investigator who had been assigned to the prosecution since its inception. The trial court found that prior to Wallin's self-representation, the investigator had performed approximately 100 hours of investigation in the case. Wallin's former counsel informed the court that she had interviewed two witnesses in the matter, organized the discovery to impeach the prosecution's main witnesses, and transcribed interviews. Although the prosecution presented Wallin with approximately 4,000 pages of written discovery, 1,270 pages concerned his Youth Authority records.
Wallin did not again request a continuance when presented with additional discovery in January 2010. For that reason, we do not consider the circumstances occurring following the trial court's December 29, 2009 ruling.
In sum, Wallin had approximately two and one-half months to prepare for trial and also had additional days during trial when the court was in recess. During summation, Wallin stated that he had watched the videotaped interviews, read the discovery materials, and studied the law. Under the circumstances, the trial court did not abuse its discretion by denying the continuance request.
II.
Wallin contends that the trial court erred by denying his new trial motion because the failure of two defense witnesses to appear and testify deprived him of a fair trial. (People v. Davis (1973) 31 Cal.App.3d 106, 109-110 [trial court may grant a new trial motion made on nonstatutory grounds where defendant otherwise denied a fair trial].) He asserts that Ramos and Salazar-Trevino would testify, consistent with their pretrial statements, that they did not see Wallin wearing a Halloween mask and restraining Grinder at gunpoint at the Perez residence. Wallin points out that Ramos appeared during the first day of trial but did not receive the telephone message to return to testify on the specified date. He also points out that Salazar-Trevino was living in a confidential residential program during trial and that he was unable to locate her. Wallin asserts that their testimony would have altered the trial outcome because they were not accessories to Grinder's murder. (Id. at pp. 108-111 [new trial order affirmed where subpoenaed defense witness failed to appear for trial].) He asserts that the case was close, in view of the length of jury deliberations (small part of one day and most of another day) and the jury's request for readback of Ruiz's testimony.
The trial court exercises a broad discretion in determining a new trial motion. (People v. Howard (2010) 51 Cal.4th 15, 42-43.) The court's ruling will not be disturbed unless "a manifest and unmistakable abuse of discretion clearly appears." (Ibid.)In deciding whether the trial court has reasonably exercised its discretion, we decide each case by its own circumstances. (Id. at p. 43.)
The trial court did not abuse its discretion by denying the new trial motion. In ruling, the court stated that the testimony of Ramos and Salazar-Trevino was cumulative to Perez's testimony (she denied that Wallin arrived in her home with a gun and wearing a mask) and would not be persuasive. Although Ramos and Salazar-Trevino could have contradicted evidence that they were present in Perez's home when Wallin arrived with a gun and a mask, their testimony would not have impeached the evidence describing Wallin's criminal acts of robbery, kidnapping, and murder. As a general rule, the trial court does not abuse its discretion by denying a new trial where the only value of newly discovered testimony is to impeach or contradict a witness. (People v. Hall (2010) 187 Cal.App.4th 282, 299.)
Moreover, the court also stated that Wallin did not request a continuance when the two witnesses failed to appear, commenting that Wallin was "kind of relieved that they weren't here." Wallin did not request that the court issue a bench warrant for Ramos, as the prosecutor suggested. Wallin also did not request that the court and prosecutor assist in locating Salazar-Trevino. (The court and prosecutor had made other prosecution and defense witnesses available to Wallin.)
People v. Davis, supra, 31 Cal.App.3d 106, is distinguishable. There the defendant subpoenaed a witness who would testify that defendant was not present during a narcotics transaction. The witness did not appear and the defendant was convicted. Thereafter, the defendant moved for a new trial on the ground that he was deprived of a material witness. (Id. at p. 109.) The trial court granted the motion. The reviewing court affirmed the order as a reasonable exercise of discretion. (Id. at pp. 110-111.) Here Wallin did not seek a continuance or assistance in locating the two witnesses. Moreover, the expected testimony of the two witnesses was cumulative and did not discredit the strong evidence of robbery, kidnapping, and murder. The trial court here did not abuse its discretion by denying Wallin's new trial motion. (People v. Howard, supra, 51 Cal.4th 15, 42-43 [trial court possesses broad discretion in determining new trial motion].)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
COFFEE, J.
PERREN, J.
James F. Iwasko, Judge
Superior Court County of Santa Barbara
Linda C. Rush for Defendant and Appellant.
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, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.