P. v. Mejia

Filed 7/31/07 P. v. Mejia CA23/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Affirmed.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.

__________________________

Juan Mejia appeals from the judgment entered following his conviction by jury on one count of first degree murder with a drive-by shooting special circumstance finding and one count of shooting at an occupied vehicle. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Mejia, Julio Hernandez and Octavio Vizcaino were charged by amended information with one count of murder (Pen. Code, 187, subd. (a))[1](count 1), with a special circumstance allegation the murder was perpetrated by discharging a firearm from a motor vehicle with the intent to inflict death ( 190.2, subd. (a)(21)), and one count of shooting at an occupied motor vehicle ( 246) (count 2). Various firearm enhancements were alleged as to all three men on both counts ( 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d), (e), and, as to count 2, the amended information alleged Mejia personally inflicted great bodily harm on the victim ( 12022.7, subd. (a)).

2. Summary of Evidence Presented at Trial[2]

a. The Peoples evidence

In 2001 Heriberto Salinas, a Pozers gang member known as Puppet, was killed at the intersection of Ramsgate Avenue and West Manchester Avenue near Los Angeles International Airport, a location within the territory claimed by the Pozers gang, a rival of Westside Criminals. On October 18, 2003 Mejia, an admitted Westside Criminals member, was riding in the front passenger seat of a car driven by Hernandez when it approached the Ramsgate-West Manchester intersection; Vizcaino was sitting in the right rear seat. At the intersection Hernandezs car pulled next to a car driven by Anthony Palmer, an associate of the Pozers;[3]shots were fired into Palmers car. As Hernandezs car sped away, Palmers car crashed into a fence. According to one eyewitness, all three men in Hernandezs car were smiling as they left the scene. Palmer died from a gunshot wound to the head.

Los Angeles Police Department Officer Ezequiel Barraza stopped Hernandezs car within minutes of the shooting. A semi-automatic handgun was found in the armrest between the rear seats. Police found five spent shell casing and bullet fragments on the street where the shooting occurred; ballistics tests established they had been fired from the gun found in Hernandezs car. Eyewitness Desiree Arzene testified she saw the right front passenger extend his arm outside the car, holding a gun, but she could not identify him. No fingerprints were recovered from the gun, and gunshot residue tests performed on Mejia and Hernandez were negative.

Los Angeles Police Department Detective Matthew Snyder, a gang expert, testified Mejia had one tattoo that read Westside Criminals, 99th Street and another that read Rest in Peace Puppet, referring to the 2001 killing of Salinas. Snyder also testified Palmer was an associate of the Pozers gang and a Westside Criminals gang member generally would not be at the intersection of Ramsgate and West Manchester because it was in Pozers territory.

The officer who had booked Mejia into jail testified Mejia told him, Im going to get life.

b. The defenses evidence

Mejias theory of defense was that Vizcaino, who Mejia claimed was not a gang member, fired into Palmers car from the back seat and that the shooting was not gang retaliation for the killing of Puppet, but an expression of road rage. Eyewitnesses had testified Palmers car was driving very slowly; Palmer had marijuana and valium in his blood at the time of his death; and eyewitness Danyelle Glenn had testified at the preliminary hearing (she was unavailable at trial) that she saw the right rear passenger reach over the front passenger seat with what appeared to be a gun in his hand. In an interview with police after his arrest, Mejia stated he did not know there was a gun in the car and never touched it.

3. The Jury Instructions

Given the length and complexity of the jury instructions and the trial courts belief preinstruction helps the jury understand counsels closing arguments, the court instructed the jury prior to closing arguments. The instructions included CALJIC Nos. 3.00 and 3.01 on aider and abettor liability.[4] After the prosecutors closing argument, the trial court stated, [Y]ou just argued target offense in aiding and abetting, and you did not ask for any instructions on that . . . we have not instructed the jury on that theory of aiding and abetting. So now that youve argued it, I have to instruct on it. The trial court later instructed the jury pursuant to CALJIC No. 3.02, the natural and probable consequences doctrine, notwithstanding Mejias counsels objection the instruction was untimely.[5]

4. The Jurys Verdict and Sentencing

The jury found Mejia guilty of first degree murder and shooting at an occupied vehicle and found true the drive-by shooting special circumstance allegation. The jury found the allegations Mejia had personally discharged a firearm and personally inflicted great bodily injury to be not true, but found true the allegations a principal had used a firearm in the commission of the two crimes. The trial court sentenced Mejia to life imprisonment without the possibility of parole, plus one year for the gun enhancement, for the drive-by murder in count one; the court imposed the middle term of five years on count two, plus one year for the gun enhancement, and stayed that sentence pursuant to section 654.

CONTENTIONS

Mejia contends the Peoples belated assertion of an aiding and abetting theory of liability on the murder charge violated his federal constitutional right to fair notice and due process; there was insufficient evidence of premeditation to support his conviction for first degree murder; the drive-by special circumstance is unconstitutional; and it was prejudicial error to admit his post-arrest statement, Im going to get life.

DISCUSSION

1. Mejias Contention He Did Not receive Sufficient Notice of His Potential Liability for Murder as an Aider and Abettor Does Not Warrant Reversal of His Conviction

a. Mejia forfeited his claim by failing to make a timely and specific objection in the trial court

Due process requires a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People

v. Gallego (1990) 52 Cal.3d 115, 189; People v. Bishop (1996) 44 Cal.App.4th 220, 231; People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Mejia contends his right to fair notice was violated because the prosecutor first asserted Mejia could be convicted of murder on an aiding and abetting theory in closing argument. From the outset the

prosecutors theory of the case had been that he was the shooter: In her opening statement the prosecutor insisted that Juan Mejia murdered Anthony Palmer, that this happened from the discharge of a firearm from a vehicle and that he personally discharged that firearm . . . .

Mejia has failed to preserve this issue for appeal. Without objection from Mejia the trial court preinstructed the jury on the general principles of aiding and abetting liability as set forth in CALJIC Nos. 3.00 and 3.01. The court also instructed the jury on the drive-by shooting special circumstance pursuant to CALJIC No. 8.80.1, in language that included an aiding and abetting theory: Now, if you find that the Defendant is not the actual killer of a human being, or if you are unable to decide whether the Defendant was the actual killer or an aider and abettor you cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubt that such Defendant with the intent to kill aided, abetted, counseled, induced, or assisted any actor in the commission of the murder in the first degree.

It was only when trial court informed counsel after closing argument it was obligated to add an instruction on the natural and probable consequences doctrine, one aspect of aiding and abetting liability, that Mejia objected to that specific proposed instruction as untimely. If Mejia intended to object to the giving of any instruction on aiding and abetting liability on constitutional grounds (lack of notice), his single, belated objection was insufficient to apprise the trial court of the scope of his objection; and the record does not demonstrate the court understood Mejias objection to include the due process argument he now asserts. (See People v. Scott (1978) 21 Cal.3d 284, 290 [defendants objection that lacked specificity did not constitute waiver because hearing transcript demonstrated court fully understood and considered the nature of the constitutional challenges which defendant now raises].) Moreover, even were we to construe Mejias objection to the natural and probable consequences instruction as one directed to the general theory of aiding and abetting liability, Mejia has nonetheless forfeited his constitutional argument because he failed to move to reopen the defense case to permit the introduction of additional evidence or request a continuance so he could adequately prepare a response to this theory in his closing argument.[6] (See People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132 [defendant waived any claim of insufficient notice by not moving to reopen when he learned that the court would instruct the jury on felony murder]; People v. Gurule (2002) 28 Cal.4th 557, 629-630; People v. Memro (1995) 11 Cal.4th 786, 869 [defendant forfeited claim prosecutions felony-murder theory surprised him because he failed to move to reopen evidence].)

b. Mejias claim of insufficient notice lacks merit

A general charge of murder satisfies the due process requirement of adequate notice with respect to first and second degree murder, voluntary and involuntary manslaughter and felony murder. (People v. Thomas (1987) 43 Cal.3d 818, 824; People v. Lucas (1997) 55 Cal.App.4th 721, 737.) Likewise, since direct perpetrators and accomplices have long been treated by statute as principals equally liable under the law ( 31-32) and since a statute specifies that allegations of principal status suffice to proceed on accomplice theories ( 971), case law has long held due process notice satisfied as to defendants prosecuted as aiders and abettors [citation], accessories after the fact [citation] or conspirators [citation]. (Lucas, at p. 737.) Not only was Mejia charged with murder, sufficient in and of itself to apprise him of the possibility he might be convicted as an aider and abettor, but also the information alleged, pursuant to section 12022.53, subdivisions (d) and (e), that Mejia was liable for the personal and intentional discharge of a firearm causing death or great bodily injury under the alternative theories that he fired the gun or was a principal in the offense and another principal fired the gun. Although the People ultimately elected not to proceed under subdivision (e), which would have required proof that the murder of Palmer was intended to benefit a criminal street gang ( 186.22, subd. (b)(1)), Mejia was given notice in the amended information of the possibility an aider and abettor theory of liability would be pursued. Thus, People v. Hernandez (1988) 46 Cal.3d 194, which held the trial court could not impose an additional term for an enhancement that was neither pleaded nor proved and was mentioned for the first time in the probation report, upon which Mejia relies, is clearly distinguishable.

Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 (Sheppard), also cited by Mejia, does not compel a different conclusion. In Sheppard the defendant was charged with murder and tried on the theory the murder was premeditated and deliberate. The morning after jury instructions had been settled, just before closing arguments, the prosecutor requested for the first time instructions on robbery and the felony-murder rule. A felony-murder instruction was given over defense counsels objection. The defendant was convicted of murder without any indication of the legal theory the jury adopted. (Id. at pp. 1235-1236.) On appeal the Attorney General conceded the prosecutors conduct affirmatively misled the defendant, denying him an effective opportunity to prepare a defense, but argued its murder pleading practice provided the defendant with adequate notice. (Id. at p. 1236.) The Ninth Circuit disagreed and reversed the conviction. (Id. at pp. 1237-1238.)

Numerous court of appeal decisions, including one by this division, have found the reasoning in Sheppard, supra, 909 F.2d 1234, inconsistent with People v. Murtishaw (1981) 29 Cal.3d 733, controlling California Supreme Court authority, in which the Court explained, [I]t has long been settled that under an accusatory pleading charging murder in the short form prescribed by Penal Code sections 951 and 952 the accused may be convicted of first degree murder on the theory that the murder was committed in the perpetration of a felony. [Citation.] Thus a defendant, charged with murder, is on notice that the prosecution may seek to prove that charge by showing that the homicide occurred during the commission of an enumerated felony. (Id. at p. 751, fn. 11; see, e.g., People v. Scott (1991) 229 Cal.App.3d 707, 716-717 [Sheppard decision is inconsistent with Murtishaw]; People v. Crawford (1990) 224 Cal.App.3d 1, 8 [same].) Other California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and limited it to its facts (People v. Lucas, supra, 55 Cal.App.4th at p. 738), facts that differ in significant respect from the case at bar, including the concession by the Attorney General in Sheppard of a pattern of government conduct [that] affirmatively misled the defendant. (Sheppard, supra, 909 F.2d at p. 1236, italics omitted.) Sheppard also involved a belated instruction on a felony-murder theory of liability, not aider-and-abettor liability, which the Legislature has expressly stated need not be alleged in an accusatory pleading ( 971).[7] Moreover, as we explained in People v. Bishop, supra, 44 Cal.App.4th at page 232, in which we rejected a claim by a defendant he had not received adequate notice he could be found guilty of a special circumstance allegation on a theory of aiding and abetting, in Sheppard the defendant was not even charged with the crime of which he was possibly found guilty[, that is, robbery]. In this case by contrast, there is no allegation appellant lacked notice of the substantive crimes with which he was charged. Nor is there any allegation the prosecutor attempted to alter or add to these charges in any way. Here, too, Mejia does not contend he lacked notice of the substantive crime (murder and shooting at an occupied vehicle) that provided the bases for aiding and abetting liability, including the natural and probable consequences theory.

2. No Evidence of Premeditation Was Required To Support a Verdict of First Degree Murder

Section 189 establishes three categories of first degree murder: It first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill. [8] (People v. Rodriguez  (1998) 66 Cal.App.4th 157, 163-164 (Rodriguez).)

Mejia contends there is insufficient evidence of premeditation to support his conviction for first degree murder. However, as Mejia essentially concedes in his challenge to the constitutionality of the drive-by special circumstance, [p]remeditation is not required to establish first degree murder by shooting out of a vehicle with intent to kill. (People v. Chavez (2004) 118 Cal.App.4th 379, 386.) Nor can there by any question Mejias murder conviction for first degree murder was fully supported by evidence he shot from a vehicle with intent to kill. Indeed, the jury specifically found true the special circumstance that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death, within the meaning of Penal Code section 190.2(a)(21).[9]

3. The Drive-By Special Circumstance Is Constitutional

Although not himself sentenced to death, Mejia argues the drive-by shooting special circumstance set forth in section 190.2, subdivision (a)(21),[10]violates the Eighth and Fourteenth Amendments to the United States Constitution on its face and as applied because, among other reasons, it conditions death eligibility on a benign fact ‑‑ simply being in a car at the time of the offense ‑‑ that does not have any necessary connection to culpability.

Mejia does not offer any compelling arguments warranting departure from Rodriguez, supra, 66 Cal.App.4th 157, a more plausible case of road rage (id. at p. 176) in which his same arguments were thoroughly analyzed and rejected.Mejia contends the Rodriguez court decided only that the criminalization of drive-by activity serves a rational legislative purpose of deterrence; it did not address whether the provision is sufficient to confer death-eligibility. The Rodriguez court properly confined its analysis, as do we, to issues presented by the defendants sentence of life imprisonment without the possibility of parole.

Mejia also faults the Rodriguez court for relying on Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [108 S.Ct. 546, 98 L.Ed.2d 568] for the proposition a finding of a special circumstance may be based on elements also necessary to convict the defendant of murder. Mejia argues the Lowenfield Court held only that the same factual detail of the crime may be relied upon both to confer death eligibility and as an aggravating factor in the penalty phase, not that the same fact, incidental to the offense, can be used to transform a second degree murder into a capital case. However, in People v. Catlin, supra, 26 Cal.4th at page 158, the California Supreme Court, citing Lowenfield, determined that first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment. (See People v. Marshall (1990) 50 Cal.3d 907, 945-947 [the triple use of the same facts ‑‑ i.e., to support (1) the conviction of first degree murder on a theory of felony murder, (2) the finding of the felony-murder special circumstance, and (3) the imposition of the penalty of death does not violate due process or cruel and unusual punishment clauses of United States Constitution].)

4. Admission of Mejias Post-arrest Statement Im Going to Get Life Was Not Prejudicial Error

At trial Mejia objected his post-arrest statement to the booking officer Im going to get life was not relevant because he was merely repeating what detectives had told him during his interview.[11] The trial court did not abuse its discretion in determining Mejias statement was relevant. (See People v. Brown (2003) 31 Cal.4th 518, 534-535 [trial court ruling on relevance reviewed for abuse of discretion]; People v. Sanders (1995) 11 Cal.4th 475, 512 [trial court is vested with wide discretion in determining relevance]; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [abuse of discretion will not be found unless trial court has exceeded bounds of reason by exercising discretion in arbitrary, capricious or patently absurd manner resulting in manifest miscarriage of justice].)

Mejia made the challenged statement spontaneously to the booking officer while he was being asked routine medical questions, suggesting Mejia had been reflecting on his own culpability. However, the jury also heard that Mejia had previously been told by one of the detectives, So youre looking at probably spend[ing] the rest of your life in prison. Although the jury was thus free to accept Mejias explanation and disregard the statement, it was not arbitrary or capricious for the trial court to conclude the statement had some tendency in reason to prove his guilt. (See Evid. Code, 210.)[12]

Mejia also contends for the first time on appeal the statement should have been excluded under Evidence Code section 352 because its probative value was substantially outweighed by the undue prejudice its admission created. Mejia has forfeited this argument: His relevance objection was insufficient to apprise the trial court he was also objecting on prejudice grounds. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130 [argument evidence should have been excluded under Evidence Code 352 forfeited; counsel objected only on relevancy grounds and made no objection to the perceived prejudicial effect of the evidence].) Nor does characterizing the prejudice as a violation of the due process clause of the Fourteenth Amendment to the United States Constitution cure his forfeiture. (See People v. Partida (2005) 37 Cal.4th 428, 435-436 [defendant may make a very narrow due process argument on appeal notwithstanding failure to object on that ground when argument is that asserted error in admitting the evidence over [defendants] Evidence Code section 352 objection had the additional legal consequence of violating due process].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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[1] Statutory references are to the Penal Code.

[2] Mejia and Hernandez were tried simultaneously before separate juries.

[3] An associate is a person who associates with gang members but is not necessarily a gang member.

[4] As given to the jury, CALIC No. 3.00 provides, Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [] 1.  Those who directly and actively commit the act constituting the crime; or, [] 2.  Those who aid and abet the commission of the crime. CALJIC No. 3.01 provides, A person aids and abets the commission of a crime when he or she: [] 1. With knowledge of the unlawful purpose of the perpetrator; and, [] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime; and, [] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime. [] Now, mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

[5] As given to the jury, CALJIC No. 3.02 provides, One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime and those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [] In order to find the defendant guilty of the crime of murder, as charged in count 1, you must be satisfied beyond a reasonable doubt that: [] 1. The crime of shooting into an occupied motor vehicle was committed; [] 2. That the defendant aided and abetted that crime; [] 3.  That a coprincipal in that crime committed the crime of murder; and, [] 4. The crime of murder was a natural and probable consequence of the commission of the crime of shooting into an occupied motor vehicle. [] In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen.

[6] In fact, defense counsel addressed the aiding and abetting theory in his closing argument: There is no evidence that Mr. Mejia knew in advance that Mr. Vizcaino in the backseat was going to do the shooting. Theres no evidence Mr. Mejia aided the shooting beforehand or after. Mejia fails to indicate what more he would or could have argued to supplement his road-rage theory of defense, or what new evidence he would have offered, had he understood earlier he could be held liable on the murder charge as an aider and abettor. (See People v. Kipp (2001) 26 Cal.4th 1100, 1131 [defendants claim of constitutionally inadequate notice failed, in part, because he did not persuasively explain[ ] how the defense strategy was significantly affected by the addition of the felony-murder rape theory].)

[7] Section 971 states, The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.

[8] Section 189 states, All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

[9] The jurys finding of both first degree murder and a special circumstance based on common elements is permissible. (People v. Catlin (2001) 26 Cal.4th 81, 158; People v. Rodriguez, supra, 66 Cal.App.4th at p. 164, citing Lowenfield v. Phelps (1988) 484 U.S. 231 [108 S.Ct. 546, 98 L.Ed.2d 568] [special circumstance of multiple murder may duplicate elements defining defendants crime as first degree murder].)

[10] Section 190.2, subdivision (a)(21), mandates a penalty of death or life imprisonment without the possibility of parole for a defendant found guilty of murder in the first degree when [t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.

[11] In the trial court Mejia also objected the statement was obtained in violation of his constitutional rights to remain silent and to the presence of counsel at a custodial interrogation (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), but concedes on appeal no Miranda violation occurred.

[12]In People v. Varona (1983) 143 Cal.App.3d 566, 570 the court held the prosecutor had committed gross misconduct requiring reversal of a rape conviction by arguing there was no evidence the victim was a prostitute after successfully excluding evidence of her prior prostitution. Citing Varona, Mejia argues similar misconduct occurred here because the trial court had excluded from evidence the portion of Mejias pre-booking interview with Detective Mark Morgan in which Morgan told Mejia he was going to get life. Varona is plainly distinguishable because it was Mejia who moved for the exclusion of this portion of his police interview, not the People. Moreover, as discussed, a similar statement made by Detective Joe Lumbreras was admitted at trial and reiterated by defense counsel during his closing argument.