P. v. Garcia

Filed 10/17/06 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jose Luis Navarro Garcia appeals his conviction, by jury, of the first degree murder of Davey Marceleno. (Pen. Code, §§ 187, 189.) The jury further found the special circumstances that appellant was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)), and that he committed the murder by lying in wait. (§ 190.2, subd. (a)(15).) It also found true sentence enhancement allegations that appellant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), personally used a firearm (§ 12022.5, subd. (a)(1), §12022.53, subd. (b)), and personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (c), (d).) The trial court sentenced appellant to state prison for a term of life without the possibility of parole, plus 25 years to life for personally discharging a firearm to cause great bodily injury (§ 12022.53, subd. (c), (d)), 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), and 20 years for the personal use of a firearm enhancement. (§ 12022.5, subd. (a)(1), § 12022.53, subd. (b).)

Appellant contends the10-year gang enhancement does not apply to a life sentence, that the trial court erred in imposing two firearm use enhancements, and that the 25-year firearm use enhancement is subsumed by the base term of life without possibility of parole. He further contends the trial court erred when it instructed the jury in terms of CALJIC No. 2.01, because the instruction impermissibly lowers the prosecution's burden of proof, and when it instructed with CALJIC No. 3.18, because the instruction does not adequately describe the caution with which accomplice testimony should be considered. He further contends the trial court erred when it admitted statements he made to a police informant and that the finding he was a member of a criminal street gang is not supported by substantial evidence. Respondent correctly concedes the trial court erred in imposing the 10-year gang enhancement and more than one firearm use enhancement. We strike the 10-year gang enhancement and stay the 20-year firearm use enhancement. In all other respects, the judgment is affirmed.

Facts

Appellant was a member of the Sur Town gang. The murder victim, Davey Marceleno, was associated with the rival Colonia Chiques gang. On the night of the murder, appellant was at a house in Oxnard, drinking with fellow gang members including Jose Vaquerano and Cesar Vazquez. They discussed retaliating for the recent death of another gang member. At about 10:00 p.m., appellant, Vaquerano, and Vazquez drove around looking for rival gang members. Appellant drove a purple or "burnt red" mini van belonging to his girlfriend.

Vazquez testified that the group drove to the apartment building in Oxnard where Vaquerano lived with his parents. They were looking for a member of a rival gang who had been giving Vaquerano trouble. When they reached the apartment building, Vaquerano pointed out the apartment where the rival, Davey Marceleno, lived. Vazquez took the shotgun and, as he was leaving the van, appellant told him, "Just go do it." He got as far as the carport before turning back because, he said, "it wasn't in [him]" to kill somebody.

When Vazquez told appellant that he could not shoot Marceleno, appellant said, "Lemme see the gun," and "I'm gonna show you the way to do it, so next time you can do it." Appellant walked up some stairs to the apartment. The next thing Vazquez heard was gunshots. Appellant came running back to the van and jumped into the passenger side saying, "I got him. I got him." The trio returned to the house where they'd been drinking before the shooting. Appellant told other gang members about the shooting and seemed to be excited about it.

Meriya Macias lived in the apartment. Her boyfriend, Davey Marceleno, was sitting in the living room with a couple of other friends while Macias was in the bathroom, getting ready to go out for the evening. From the bathroom, Macias heard a faint knock on the front door and then five or six gun shots. Then she heard Marceleno saying to call an ambulance because he'd been shot.

Threafter, appellant met with Gerardo Rojas to talk about buying a gun from Rojas. Rojas was working as a police informant and tape recorded their conversation. The meeting was also videotaped. Appellant told Rojas about Marceleno's murder. He said that Vazquez was supposed to do the shooting, but had refused at the last minute. Appellant said he knocked on the front door of the apartment and shot Marceleno in the abdomen as soon as Marceleno opened the door. Marceleno managed to shut the door but appellant continued to shoot through the door. He said Marceleno's "guts were spilling out" and that Marceleno was yelling that he'd been shot. Appellant told Rojas about other crimes as well including attempting to steal a car, shooting a member of another gang, attempting to rob a pizza delivery man and shooting someone at a park on Saviers Road.

Two neighbors testified that they heard the shots fired and saw a man run from Marceleno's apartment to a waiting vehicle. One witness testified that man was carrying a shotgun and ran toward a vehicle that was partially hidden by a wall, but looked like a Suburban or Expedition. The other witness did not see a weapon and said the man ran to a green van. Appellant's employer testified that appellant worked until 5:30 p.m. on the day of the murder, contradicting Vazquez's testimony that appellant was "hanging out" and drinking that day. Appellant's girlfriend testified they were at a party with appellant's friends between 7:00 and about 10:00. Appellant was in a bad mood because he could not find his cell phone. They left at about 10:00, dropping off one of appellant's friends, Hugo Sanchez, on the way home. Sanchez left for Wal-Mart with his mother and sister about five minutes after arriving home. On the way there, they saw an ambulance and police cars outside the victim's apartment building. Appellant testified that he thought Vaquerano was the killer, because Vaquerano lived in the same apartment building as the victim and had been bragging about the shooting.

Discussion

Gang Enhancement

Appellant contends the trial court erred in imposing the 10-year gang enhancement pursuant to section 186.22, subdivision (b). Respondent correctly concedes the error. Our Supreme Court held in People v. Lopez (2005) 34 Cal.4th 1002, that the 10-year gang enhancement does not apply where the defendant is sentenced to a life term. (Id. at p. 1005.) We will order the enhancement stricken from the abstract of judgment.

Firearm Use Enhancements

The trial court imposed both a 20-year firearm use enhancement under section 12022.53, subdivision (c) and a 25-year firearm use enhancement under section 12022.53, subdivision (d). Appellant contends the 20-year enhancement should have been stayed pursuant to section 654. Alternatively, he contends the 20-year enhancement should be stayed pursuant to section 12022.53, subdivision (f). We need not decide the question of whether section 654 applies to the enhancements. That question is pending before our Supreme Court. (People v. Palacios (S132144).) As respondent correctly concedes, subdivision (f) of section 12022.53 mandated that the 20-year enhancement be stayed.

Section 12022.53, subdivision (c) requires a 20-year enhancement be imposed on any person "who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm . . . ." If the firearm is discharged "personally and intentionally" and it causes great bodily injury or death, the enhancement is 25 years. (§ 12022.53, subdivision (d).) Subdivision (f) of the same statute provides, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment." Subdivision (h) prohibits the trial court from striking any enhancement allegation made pursuant to this section.

Because appellant committed only one crime -- murder --he is eligible for only one enhancement under section 12022.53. Subdivision (f) mandates that the enhancement imposed be the longer of the two alleged, the 25-year enhancement under subdivision (d). The remaining 20-year term cannot be stricken due to subdivision (h), so it must be stayed. We will order the abstract of judgment modified accordingly.

Appellant next contends the trial court erred in imposing the 25-year firearm use enhancement pursuant to section 12022.53 subdivision (d) because that term is "subsumed" by his base term sentence of life without the possibility of parole. Our Supreme Court recently resolved this issue in People v. Shabazz (2006) 38 Cal.4th 55, where it held that "the enhancement may be imposed notwithstanding the circumstance that defendant's sentence for the underlying felony is life imprisonment without the possibility of parole. To hold otherwise would contravene both the plain language and the legislative intent underlying section 12022.53 as a whole and would exempt more serious offenders from a punishment imposed upon less serious offenders." (Id. at p. 59.)

CALJIC No. 2.01

The trial court instructed the jury on the use of circumstantial evidence with CALJIC No. 2.01. Among other things, this instruction informs the jury that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt." Appellant contends the instruction is misleading and reduces the prosecution's burden of proof because it refers only to circumstantial evidence even though the very same standards apply to the jury's consideration of direct evidence. A juror might, appellant theorizes, conclude that the requirement of proof beyond a reasonable doubt applies only to facts established through circumstantial evidence and not to those established by direct evidence.

We are not persuaded. First, CALJIC No. 2.01 is not improperly limited in scope. It refers to the standard of proof for facts or circumstances upon which an inference rests. By definition, the evidence of such facts is circumstantial, rather than direct. (See, e.g., CALJIC No. 2.00.) Second, the jury was instructed with CALJIC No. 2.90 that it was the People's burden to prove appellant guilty beyond a reasonable doubt. There is no reasonable probability a juror would interpret CALJIC No. 2.01 to require proof beyond a reasonable doubt only of facts established by circumstantial evidence. (People v. Welch (1999) 20 Cal.4th 701, 766.)

Appellant next contends the instruction is defective because it distinguishes between guilt and innocence, rather than the failure to prove guilt beyond a reasonable doubt. As appellant concedes, our Supreme Court rejected this contention in People v. Jennings (1991) 53 Cal.3d 334, 385-386.

CALJIC No. 3.18

Appellant contends the trial court erred in instructing the jury on its consideration of accomplice testimony in terms of CALJIC No. 3.18. He contends the instruction is inadequate to advise the jury of the dangers of relying on accomplice testimony where that testimony is the only evidence connecting him to the crime. There is authority that the contention has been waived because appellant did not object. (People v. Guiuan (1998) 18 Cal.4th 558, 570, compare Pen. Code § 1259 .) Nevertheless, we reject the contention on the merits. The instruction correctly advises the jury to view accomplice testimony with caution. Moreover, there was other evidence connecting appellant to the crime, including his incriminating statements to Rojas. An instruction indicating that Vazquez's testimony was the only evidence tying appellant to the crime would have been inaccurate and would, therefore, have properly been rejected.

Transcript of Conversation with Rojas

Appellant contends the trial court erred when it admitted into evidence the tape recording and English-language transcript of his conversation with Rojas. Although he concedes the admissibility of the statements in which he admits to shooting Marceleno, he contends the remainder of the conversation should have been excluded pursuant to Evidence Code sections 352 and 1101 as cumulative and irrelevant.

In a pre-trial ruling on this issue, the trial court determined that only the first 17 pages of the 30-page transcript were admissible. It excluded the final 13 pages pursuant to Evidence Code section 352, on the grounds that the probative value of that portion of the transcript was outweighed by its potential for unfair prejudice and juror confusion. In the first portion of the transcript, appellant talks about his fellow gang members and describes shooting Marceleno. In the portion that was initially excluded from evidence, appellant describes other gang-related crimes in which he participated.

Appellant testified at trial that he was not an active member of Sur Town and had never committed a crime for the gang. He testified that the statements he made to Rojas were lies. In that conversation, he took credit for shootings, robberies and assaults committed by other gang members to build credibility so that Rojas would sell him a gun. He also testified that the transcript was inaccurate in places because his comments did not track with Rojas'.

The trial court found, "one of the specific things that the defendant testified about was the tape itself and saying that 'If you listen to the tape itself and listen to the original and listen to the responses to what I was saying and what Mr. Rojas was saying that those two things don't track together.' I think that those statements clearly have made the transcript and the balance of the tape admissible, and so that is my ruling. The tape will be -- they'll be able to play the tape and the transcript of the entire tape recording."

We review the trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.) None appears. Appellant's statements about his fellow gang members and other gang-related crimes were relevant to the allegations that appellant murdered Marceleno while an active participate in a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that he acted for the benefit or at the direction of the gang. (§ 190.2, subd. (a)(22).) The complete tape recording and transcript were non-cumulative and relevant to rebut appellant's testimony that the transcript was inaccurate, that his statements to Rojas were lies, and that he was never an active gang member. (People v. Jordan (2003) 108 Cal.App.4th 349, 365-366.)

Active Participation in a Criminal Street Gang

The jury found true the special circumstance that appellant "intentionally killed [Marceleno] while [appellant] was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Appellant contends there is no substantial evidence of his "active participation" in a criminal street gang. We disagree.

In People v. Castenada (2000) 23 Cal.4th 743, our Supreme Court construed section 186.22, which increases the punishment for some gang-related offenses committed by a "person who actively participates in any criminal street gang . . . ." Our Supreme Court held, "one 'actively participates' in some enterprise or activity by taking part in it in a manner that is not passive. Thus, giving these words their usual and ordinary meaning, we construe the statutory language 'actively participates in any criminal street gang' (§ 186.22(a)), as meaning involvement with a criminal street gang that is more than nominal or passive."

There was substantial evidence here that appellant was an active participant in a criminal street gang. He testified that he is a member of the Sur Town gang. Vazquez testified that he was "jumped in" to membership in Sur Town in August or September 2002 by appellant, Vaquerano and another member known as "Bogeyman." Respondent's expert witness on criminal street gangs described other evidence of appellant's active participation in the gang. In February 2002, appellant was arrested and provided the nickname "Psycho" to the arresting officer. In March 2003, he was arrested while in a car with two known Sur Town gang members. While in custody, appellant was involved in a fight and identified himself as a Sur Town member. His opponents in the fight also recognized him as a member of Sur Town. The gang expert further opined that the most significant evidence of appellant's active involvement in the gang is his participation in the Marceleno murder. The expert described this as "a classic gang mission against a rival gang member."

A rational finder of fact could determine from this evidence that appellant considered himself a member of Sur Town, that he associated with other gang members and assisted in initiating a new member of the gang, and that he murdered Marceleno for the gang. (See e.g., People v. Lewis (2001) 26 Cal.4th 334, 366.) This constitutes substantial evidence that appellant "actively participate[d]" in a criminal street gang within the meaning of section 190.2, subdivision (a)(22).

Conclusion

The clerk of the superior court is directed to prepare and forward to the department of corrections an amended abstract of judgment striking the 10-year enhancement imposed pursuant to section 186.22, subdivision (b) and staying the 20-year enhancement imposed pursuant to section 12022.53, subdivision (c). In all other respects the judgment is affirmed.

NOT FOR PUBLICATION.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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