P. v. Chavez

Filed 10/2/07 P. v. Chavez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Affirmed as modified.

I.

INTRODUCTION

A jury found Rudy R. Chavez guilty of first degree murder (Pen. Code,^[1] 187, subd. (a)) (count 1). In addition, the jury found that in the commission of the murder, Chavez personally used a firearm within the meaning of section 12022.5, subdivision (a).

The jury further found that in the commission of the murder, Chavez personally discharged a firearm and proximately caused the death of a person within the meaning of section 12022.53, subdivision (d). The trial court sentenced Chavez to 25 years to life on the underlying first degree murder conviction. The court imposed a consecutive term of 25 years to life on the section 12022.53, subdivision (d) sentence enhancement finding, and imposed and stayed a four-year term on the section 12022.5, subdivision (a) sentence enhancement finding. The trial court imposed a total term of imprisonment of 50 years to life.

On appeal, Chavez claims there is insufficient evidence of premeditation and deliberation to support the jury's verdict that he committed first degree murder. Chavez also claims that the trial court should have stricken the section 12022.5, subdivision (a) sentence enhancement finding rather than imposing and staying sentence on the finding.

We conclude that there is sufficient evidence of premeditation and deliberation to support the jury's verdict. We further conclude that the trial courterred in imposing and staying a four-year term on the section 12022.5, subdivision (a) sentence enhancement finding.We direct the trial court to correct the abstract of judgment by striking the 12022.5, subdivision (a) enhancement, and affirm the judgment as so modified.

II.

FACTUAL BACKGROUND

A. The relationship between Chavez and Joseph G.

Joseph G. (Joseph) was the brother of the murder victim, Adam G. (Adam).^[2] Joseph and Chavez were in different street gangs. Joseph was a member of the East Side National City Acre Boys, while Chavez was a member of a gang called South Side N.B.K. Prior to the night of the murder, Joseph and Chavez had a confrontation in which Joseph attempted to engage in a fight with Chavez. During that confrontation, Joseph used a rock to break the window of a car in which Chavez was riding as a passenger. At the time, Joseph knew that Chavez was a member of the South Side N.B.K. gang.

Sometime after this initial confrontation, Joseph met Chavez while both were in juvenile custody. Upon realizing that Chavez recognized him from the prior incident, Joseph asked Chavez, "What's up?" Chavez responded that he was no longer in a gang. Joseph decided not to fight with Chavez because Chavez no longer claimed^[3]to be in a gang. However, Joseph considered Chavez's failure to claim affiliation with a gang while in custody to be cowardly.

B. The events leading up to the murder on the evening of November 5, 2004

On the evening of November 5, 2004, Joseph, Adam, and their cousin Anthony Martinez attended a family celebration in National City. Joseph spoke with his girlfriend Jessica Herrera on the telephone. Joseph and Herrera agreed to meet at the E Street trolley station in Chula Vista. Martinez drove Joseph to the trolley station. Adam went along for the ride.

That same evening, at approximately 9:30 or 10:00, Chavez and six of his friends picked up Herrera in a blue Blazer. After getting into the Blazer, Herrera learned that a couple of guys had pulled a gun on Chavez and his friends at a football game earlier that evening. The group went to a gas station and purchased some beer. Later, the group went to Chavez's brother's house. Chavez asked his brother for a gun. Chavez's brother refused to give Chavez the gun because there were too many people in the Blazer. Chavez drove away and dropped off some of the people who had been riding in the Blazer.

Herrera, Chavez, Karina Lopez, Frankie Perez, and Anthony Alarid remained in the Blazer. The group went back to Chavez's brother's house, and Chavez went inside the house. When Chavez came back outside, he had a shotgun. Chavez fired the gun into the ground outside his brother's house.

Herrera testified that after Chavez fired the gun, the following occurred:

"[W]e left to go find the guys that had pulled the gun on them, and [Chavez] couldn't find anybody. So [Chavez] decided to go find someone else that [Chavez] didn't get along with. And [Chavez] still didn't find anybody."

Herrera estimated that the group drove around for approximately an hour to an hour and a half "looking for somebody."

While the group was driving around, Herrera received a call on her cell phone from Joseph. Herrera agreed to meet Joseph at the E Street trolley station. After the group stopped at a parking lot where some members of the group smoked marijuana,^[4]the group went to a restaurant to use the restroom. The group then proceeded to the E Street trolley station.

C. The murder

Joseph, Adam, and Martinez arrived at the trolley station before Chavez, Herrera, Lopez, Perez, and Alarid did. Joseph and his group sat next to their car. Approximately 15 to 20 minutes later, Chavez's group arrived at the station. Joseph testified that when the Chavez group arrived at the station, Chavez, Alarid, and Perez got out of the Blazer and one of them asked Joseph's group, "Where are you from?"^[5] Joseph testified that in response to this question, "[w]e said, 'East Side National City, Acre Boys.' And Anthony

[Martinez] said something like 'L.A.'"^[6] Chavez claimed that he was from "South Side N.B.K." Joseph laughed and told Chavez that Chavez had been a coward for failing to claim his gang when they encountered each other at juvenile hall.

Joseph and Chavez then got into a fist fight. After they had been fighting for a while, Joseph was sitting on top of Chavez. Chavez said, "wait," got up, and ran to the Blazer. Joseph saw Chavez push Herrera out of the way as he reached into the Blazer and retrieved a gun. As Chavez walked back toward Joseph, he pointed the gun at Joseph. Joseph began to run and told Martinez and Adam to run. Joseph heard a boom and then heard Martinez screaming that Adam had been shot. Joseph testified that Adam did not participate in the argument Joseph had with Chavez.

Herrera also testified regarding her recollection of the events at the trolley station. Herrera saw Joseph and Chavez arguing. Herrera could tell that the two were arguing about the incident that had occurred while Chavez and Joseph were in custody. Herrera remained in the Blazer. Herrera saw Chavez and Joseph begin to fight. Both Joseph and Chavez were on the ground. It appeared that Joseph was winning the fight.

After the fight stopped momentarily, Chavez went to the Blazer. Chavez appeared to be angry. Herrera told Chavez not to get the gun. Chavez pushed Herrera out of the way, and retrieved the gun from under the front passenger seat. Chavez then walked toward Joseph, holding the gun. Martinez told Chavez that it was "not necessary." Joseph and Martinez began to run. Adam did not run. Herrera saw Chavez face Adam and shoot him.

Lopez testified that Joseph and Chavez got into an argument at the trolley station, and that the argument escalated into a fight. Lopez testified that after the fight ended, Chavez went to the car, and "somebody got the gun out." Lopez also testified that she heard a gunshot, but that she was not sure whether Chavez, or someone else, had shot Adam. The People played a videotape of a police interview with Lopez in which Lopez implied that Chavez had shot Adam.

Adam later died from a shotgun wound in the abdomen.

III.

DISCUSSION

A. There is sufficient evidence that Chavez committed premeditated and

deliberate murder

Chavez claims there is insufficient evidence to support the jury's determination that he committed premeditated and deliberate murder.

1. Standard of review

In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ─ that is, evidence which is reasonable, credible, and of solid ─ value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Evidence of premeditation need not be overwhelming and "'we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether "'any rational trier of fact'" could have been so persuaded.' [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 546.)

2. Governing law

Section 189 provides in relevant part, "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree."

"In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citations.] The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court "'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . .  "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.)

In People v. Martinez (2003) 113 Cal.App.4th 400, 404 (Martinez), the defendant a member of the Compton Vario 132nd Street gang, walked up to a car that was parked at a gas station and said to the occupants, "'You guys are from Jeffrey.'" (Ibid.) "Jeffrey" was the name of a rival street gang. (Id. at p. 412.) The defendant then pointed a gun within six inches of the face of the front seat passenger of the car (Gomez) and pulled the trigger, but the gun did not fire. (Id. at p. 404.) As the occupants of the car fled from the car on foot, the defendant fired several gunshots. (Ibid.) One of the gunshots struck a victim (Lopez) in the knee, and another gunshot struck and killed a second victim (Augustin). (Ibid.)

On appeal from his convictions for first degree murder and attempted murder, the defendant claimed that there was insufficient evidence of premeditation and deliberation. (Martinez, supra, 113 Cal.App.4th at p. 412.) The Martinezcourt rejected this claim, reasoning:

"One of the attempted murder victims, Gomez, admitted he was a member of the Jeffrey Street gang. Other evidence showed defendant was a member of the Compton Vario 132nd Street gang and that one of his former fellow gang members had been killed in an incident involving Jeffrey Street. Defendant also testified that he previously had been assaulted and shot in the leg and that he had told the police then that the culprits were 'probably' Jeffrey Street gang members. The gang expert testified about the concept of payback within gang culture as being a retaliatory act for some wrong committed by a rival gang. Several witnesses testified that defendant made a gang-related comment before he placed the gun to Gomez's head and pulled the trigger. When it failed to fire and the victims attempted to run from the car, defendant deliberately pulled back the slide on the gun and fired it again, striking Augustin in the head and Lopez in the knee.

"The jury could reasonably infer from this evidence that the motive for the shooting involved gang rivalry. The motive, coupled with defendant's deliberate conduct in first aiming the gun at Gomez's head and then firing the weapon at the other victims as they fled from the car, provided ample evidence to support the findings that the murder and attempted murders were committed with premeditation and deliberation." (Id. at pp. 412-413.)

3. There is sufficient evidence that Chavez murdered Adam in a

premeditated and deliberate fashion

Herrera testified that on the night of the murder, Chavez obtained a gun from his brother's house and that she and Chavez's group drove around for approximately an hour to an hour and a half looking for "somebody" with whom Chavez did not get along. From this testimony, the jury could have reasonably inferred that from the time Chavez got the gun and began to look for a potential victim, he was planning to perpetrate an act of violence.

Chavez also displayed a violent state of mind, engaging in a fist fight with Joseph, a member of a different gang with whom Chavez had a personal rivalry, in front of Chavez's fellow gang members. The jury could have considered Chavez's action in going to the Blazer and retrieving the gun, over the protestations of Herrera and Lopez, to constitute evidence that Chavez considered whether to commit a murder.

The jury could have also reasonably inferred that upon getting the gun from the Blazer, Chavez formed a murderous intent to kill Joseph, and/or anyone that Chavez perceived to be affiliated with Joseph's gang. Notwithstanding Joseph's testimony that Adam did not claim to be a member of a gang, the jury heard testimony that gang members do not always claim their gang affiliation. Given that Adam was with Joseph, the jury could have reasonably inferred that in Chavez's mind, Adam was associated with Joseph, and, therefore, with another gang.

The fact that Adam was wearing a shirt that Chavez could have thought represented an affiliation with East Side National City, Acre Boys ─ the gang with which Joseph had claimed affiliation ─ would have supported this inference. After noting that Adam had been wearing a shirt that "had a big E.S. on the back of it," the prosecutor asked Joseph, "What does that mean?" Joseph responded, "East Side." The inference that Chavez associated Adam with Joseph's gang is strengthened by Joseph's testimony that, just prior to the fight, "[W]e said, 'East Side National City, Acre Boys.'" (Italics added.) Joseph's testimony that Chavez's fellow gang members were saying the name of Chavez's gang during the fist fight between Chavez and Joseph,^[7]also supports the conclusion that the killing was motivated by a gang dispute. Thus, as in Martinez, the jury could have reasonably inferred that the motive for the killing was a gang dispute.

Alternatively, the jury could have determined that upon retrieving the gun from his car, Chavez formed a murderous intent to kill Joseph, or anyone affiliated with Joseph, irrespective of whether the victim or victims were members of Joseph's gang. The fact

that Joseph told Adam and Anthony to run after he saw Chavez coming from the Blazer with a gun, would support this inference.

Whether the jury believed that Chavez murdered Adam because Chavez thought that Adam was affiliated with Joseph's gang, or simply because Chavez perceived Adam to have a personal affiliation with Joseph, the jury could have reasonably determined that Chavez committed a premeditated and deliberate murder.

B. The trial court erred in imposing and staying a sentence on the section 12022.5,

subdivision (a) enhancement

In sentencing Chavez, the trial court imposed firearm enhancements pursuant to both section 12022.53, subdivision (d) and section 12022.5, subdivision (a). The court stayed the section 12022.5, subdivision (a) enhancement, pursuant to section 654. Chavez claims that the trial court erred under People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), in staying, rather than striking, the section 12022.5, subdivision (a) enhancement. The People contend that Bracamonte was wrongly decided, and claim that the trial court did not err in imposing and staying imposition of the sentence on the section 12022.5, subdivision (a) enhancement finding.^[8]

Section 12022.53, subdivision (d) provides generally for a 25-year sentence enhancement for the personal and intentional discharge of a firearm that proximately causes great bodily injury or death during the commission of certain enumerated felonies. Section 12022.5, subdivision (a) provides for an enhancement of three, four, or 10 years for the personal use of a firearm during the commission of any felony. Section 12022.53, subdivision (f) prohibits the imposition of an enhancement pursuant to section 12022.5, when an enhancement is imposed pursuant to section 12022.53.^[9] In Bracamonte, the court construed these provisions and held, "[W]here, as here, an enhancement under section 12022.53 applies, the trial court must strike the firearm use finding under section 12022.5." (Bracamonte, supra, 106 Cal.App.4th at pp. 712-713.)

The People note that the Bracamonte court rejected the argument that section 12022.5, subdivision (c) precludes the striking of the section 12022.5 finding in such a circumstance. Section 12022.5, subdivision (c) provides, "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (See Bracamonte, supra, 106 Cal.App.4th at pp. 712, fn. 5.) The Bracamonte court interpreted section 12022.5, subdivision (c) to apply only to discretionary striking such as that provided in section 1385, and not to striking that is mandated by section 12022.53, subdivision (f). (Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5.) Further, the Bracamonte court rejected the argument that a stay of the section 12022.5 enhancement under these circumstances is required in order to guard against the possibility that a defendant might escape serving a sentence on either enhancement if the section 12022.53 were to be reversed on appeal. The Bracamonte court reasoned, "In the situation where the reviewing court finds no enhancement under section 12022.53 could be imposed, then the section 12022.5 finding would be revived by operation of law." (Bracamonte, supra, 106 Cal.App.4th at p. 713, fn. 5.)

Although the People claim that the Bracamonte court "evaded the clear language," of section 12022.5, subdivision (c), the Bracamonte court's interpretation of the statutes is reasonable in light of the tension between the prohibition on striking contained in section 12022.5, subdivision (c) and the prohibition on imposing a section 12022.5 enhancement contained in section 12022.53, subdivision (f). The Bracamonte court's interpretation of the statutes is strengthened by the fact that a trial court's striking of a section 12022.5 firearm enhancement finding pursuant to section 12022.53, subdivision (f) does not preclude the revival of the section 12022.5 enhancement in the event that the section 12022.53 enhancement is reversed or vacated on appeal, or in a collateral proceeding.

Accordingly, while we acknowledge that the statutes are ambiguous, we follow Bracamonte.^[10]

IV.

DISPOSITION

The sentence on the section 12022.5, subdivision (a) enhancement finding is vacated. The trial court is directed to strike the section 12022.5, subdivision (a) enhancement finding, prepare an amended abstract of judgment reflecting this striking, and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] Joseph was a minor at the time of trial, and Adam was a minor at the time of the murder.

^[3] To "claim" gang membership is to tell others of one's membership in a gang.

^[4] Herrera was not specific as to which members of the group had smoked marijuana, other than to testify that she had not.

^[5] San Diego Police Department Detective Brett Rhodes testified that he had considerable experience working with gangs and had received specialized training regarding gangs. Detective Rhodes explained that gang members ask this question to determine whether the person to whom the question is directed is in a gang, and if so, the name of the gang. Detective Rhodes, stated that if the questionee is in an "opposing gang[] . . . you are probably going to have problems."

^[6] Later in his testimony, the prosecutor asked Joseph what he had said in response to this question, Joseph testified, "I said, Acre Boys."

^[7] Detective Rhodes testified that a gang member who fails to respond to a challenge to fight risks losing the respect of his fellow gang members.

^[8] The issue of the appropriate sentence for a trial court to impose where separate firearm enhancement allegations under section 12022.5 and section 12022.53 are found true is pending before our Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.

^[9] Section 12022.53, subdivision (f) provides in relevant part: "An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section."

^[10] The Bracamonte court also concluded that where multiple 12022.53 enhancements apply to a single crime, the proper course is to stay execution of the sentences on the additional enhancements rather than to strike such enhancements. (Bracamonte, supra, 106 Cal.App.4th at p. 713.) In reaching this holding, the Bracamonte court relied on section 12022.53, subdivision (h), which, like section 12022.5, subdivision (c), precludes the striking of firearm enhancements. ( 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"].)

We need not consider whether to follow this aspect of Bracamonte, since this case does not involve multiple section 12022.53 enhancements. However, we note that the tension between these two holdings in Bracamonte underscores the ambiguity of the statutory language in prescribing the appropriate course of action for a trial court to take where a jury returns multiple firearm enhancement findings under sections 12022.5 and 12022.53.