P. v. Oden

Filed 5/1/06 P. v. Oden CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of the County of Los Angeles. Joan Comparet-Cassani, Judge. Affirmed in part, reversed in part, and remanded.

Edward J. Haggerty, 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, Marc E. Turchin, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.

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An amended information filed by the Los Angeles County District Attorney charged defendant and appellant Terrell C. Oden (defendant) with three counts of murder (count 1 for the murder of Rene Gamora; count 3 for the murder of Sherry Canales, and count 4 for the murder of Canales' unborn fetus); one count of conspiracy to commit the Gamora murder (count 2), and two counts of attempted murder (count 5 for the attempted murder of Juan Baltazar and count 6 for attempted murder of Joel Herrera). As to counts 1 and 3 through 6, it was alleged that the crimes were committed for the benefit of a criminal street gang (Penal Code, § 186.22, subd. (b)(1)),[1] and that a principal used a firearm (§12022.53, subd. (b), (e)(1)). The information further alleged that defendant had as a prior strike a juvenile adjudication for second degree robbery. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).)

A jury deadlocked on all counts and a mistrial was declared. A second jury found defendant guilty of first degree murder for the killing of Rene Gamora (count 1) and of conspiracy to commit the Gamora murder (count 2). The jury found that a principal intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)), and that the crimes were committed for the benefit of a criminal street gang. With regard to the conspiracy charge, the jury found that defendant had waited while another gang member shot Gamora and then drove that gang member home from the scene of the murder. The jury deadlocked as to counts 3 through 6, and a mistrial was declared as to those counts. Defendant waived his right to a jury trial on the prior conviction allegation, and following a separate court trial, the trial court found that allegation to be true.

The trial court sentenced defendant to 75 years to life, consisting of a 25-year to life sentence for the murder conviction, doubled as a second strike, plus a 25-year to life enhancement for use of a firearm pursuant to section 12022.53, subdivision (d). The trial court also imposed and stayed a sentence of 25 years to life for the conspiracy conviction, and imposed and stayed an enhancement pursuant to section 186.22, subdivision (b)(1). Defendant was accorded 1,484 days of actual presentence custody.

In this appeal, defendant makes the following arguments: (1) The trial court erred by denying defendant's motion to dismiss as a strike his prior juvenile adjudication for second degree robbery, on the ground that robbery was not a listed offense under Welfare and Institutions Code section 707, subdivision (b) at the time of the juvenile adjudication; (2) under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), use of defendant's prior juvenile adjudication as a strike violated defendant's federal constitutional rights to due process and a jury trial; (3) independent of Tighe, supra, 266 F.3d 1187, the California and United States Constitutions prohibit the use of a prior juvenile adjudication as a strike for sentencing purposes; (4) the trial court's refusal to give the jury a requested pinpoint instruction concerning gang membership and aiding and abetting violated defendant's due process rights; (5) the admission into evidence of testimony regarding the substance of a police dispatch call violated defendant's Sixth Amendment right to confront adverse witnesses; (6) the trial court erred by denying defendant's motion to sever counts 1 and 2 (relating to the Gamora murder) from counts 3 through 6 (relating to the Canales murder); (7) the additional penalties imposed by Section 12022.53, subdivision (e)(1) on gang aiders and abettors violates the equal protection clause; (8) the evidence was insufficient to support defendant's conviction as an aider and abettor of murder; (9) there was insufficient evidence of the corpus delecti for conspiracy to support defendant's conviction of conspiracy to commit murder; (10) there was insufficient evidence to support the jury's finding that defendant participated in the Gamora murder with the specific intent to promote, further or assist in criminal conduct by a gang member; (11) the trial court committed prejudicial error by failing to give a jury instruction on the natural and probable consequences doctrine; (12) the trial court deprived defendant of due process by imposing a 25-year to life enhancement pursuant to section 12022.53, subdivision (d); and (13) the trial court erred by imposing and staying an enhancement pursuant to section 186.22, subdivision (b).

We reject all defendant's arguments except that we hold the trial court erred by imposing and staying an enhancement pursuant to section 186.22, subdivision (b). (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) The abstract of judgment should be amended to delete the section 186.22 enhancement, and to impose in its place a minimum parole term of 15 years pursuant to section 186.22, subdivision (b).

BACKGROUND

1. The September 10, 2000 Canales Murder

On the night of September 10, 2000, Sherry Canales, who was five months pregnant, was walking down Gaviota Street in Long Beach with Joel Herrera and Juan Baltazar, when shots were fired from a passing car. Canales was shot in the back, and she and her unborn fetus were killed. Baltazar and Herrera were both shot in the leg. Defendant told police he was the driver of the car from which the shots were fired, but that he did not fire any of the shots. He said that Damarian Halcomb was the shooter, and that Halcomb had used a 9 millimeter gun defendant had seen at his grandmother's house at 2161 Locust Street. A live bullet recovered from defendant's car was determined to have come from the weapon used to kill Sherry Canales.

2. The September 13, 2000 Gamora Murder

On September 13, 2000, Rene Gamora was shot and killed while inside a house at 5565 Chestnut Street in Long Beach, California. Although there was no evidence that Mr. Gamora was a member of a gang, the house where he was killed was located in an area claimed by a Hispanic gang called the North Side Longos. Long Beach Police Officer Alex Lawrence was dispatched to the crime scene and found the front door open and the victim lying on the floor. He saw large quantities of blood and what appeared to be brain material strewn around the entrance to the house. Eleven people were in the house, all casually dressed Hispanic men and women in their twenties and thirties, none of whom spoke English.

On September 13, 2000, Maria Valle was at her aunt's house on 55th Street in Long Beach, approximately one block away from where Gamora was murdered. At approximately 11:30 p.m., she heard three gunshots. She looked out the front window, saw a car stopped in front of the house, and heard its engine running. She saw a person run towards the car from Chestnut Street and enter the back seat of the car, which then sped away. As the car was leaving, Ms. Valle and her aunt, Maria Gonzalez, wrote down its license plate number as 4MD415. Maria Gonzalez also heard gunshots that night, looked out the window, and saw a car with tinted windows stopped outside her house. She saw two people enter the car, one of them from the driver's side, and heard them say, â€