P. v. Riggins
Filed 11/12/13 P. v. Riggins CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
>
THE PEOPLE, Plaintiff and Respondent, v. JAMES LAMAR RIGGINS et al., Defendants and Appellants. | C069494 (Super. Ct. No. 08F00290) |
In a story
that is becoming all too familiar, rival gang members clashed over their perceived
territory, words quickly escalated to gunfire, two young men are now dead, and
a third was seriously wounded. Isidro
Cedillo and Rigoberto Aguirre were killed, and Isidro’s twin brother, Victor
Cedillo, was shot multiple times. The
confrontation began when the aggressor gang members hurled verbal threats
outside the Cedillos’ home. When the
three young men came out of their home to confront the aggressors, one of the
aggressors began shooting with a semiautomatic handgun, hitting all three of
their perceived rivals, and killing two of them in front of their home.
The gunman,
James Lamar Riggins, was found guilty of two counts of
murder special circumstance, and one count of attempted murder. As to each count, the jury found true allegations
that he personally and intentionally discharged a firearm causing great bodily
injury or death, and that the crime was committed for the benefit of a
also found true the allegation that he personally inflicted great bodily
injury. The trial court sentenced
Riggins to life in prison without the possibility of parole plus 145 years to
life in prison.
The jury
found the other two defendants, Christopher Anthony Hernandez and Orlando Gabino
Camacho, not guilty of the two first degree murder charges, but guilty of the
lesser offenses of voluntary manslaughter.
The jury found Hernandez and Camacho not guilty of attempted murder, but
guilty of the lesser offense of attempted voluntary manslaughter. The jury found the
Hernandez and Camacho, but found true the allegations that the crimes were
committed for the benefit of their gang.
The trial court sentenced each of them to 30 years and 8 months in
prison.
Defendants
argue the trial court committed various evidentiary, instructional, and
sentencing errors, and erred in imposing certain fees. They also argue they should have had access
to juror information for the purpose of developing a motion for new trial. We shall remand for correction of the
sentencing errors, but otherwise affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
The crimes
at issue in this case were motivated by gang animus. Aside from the fact that the victims and
defendants associated with rival gangs, defendants blamed the victims for
putting a fellow gang member behind bars.
standing outside a liquor store when they saw Frank Camacho, a Varrio Diamond
Sacra (VDS or Diamonds) gang member. Victor
and Isidro knew Frank Camacho from high school.
Frank Camacho called the brothers Scraps, which is a derogatory term for
Sureño gang members. Victor and Isidro
called Frank Camacho names as well. The brothers
returned home, and shortly thereafter saw Frank Camacho in the front passenger
seat of a car that was driving by, holding a gun and pointing it toward the
Cedillos’ house. Victor picked up a rock
and threw it at the passing vehicle.
Frank Camacho fired two shots and the car sped away. Frank Camacho was convicted of this
crime. In December 2007, Victor Cedillo
heard rumors that Frank Camacho was going to get out of jail and come kill him.
On January
11, 2008, Victor and Isidro were living in a house on 73rd Street with their
mother Carmen Rivas, her boyfriend Adolfo Blancarte, Rigoberto Aguirre,
Jonathan Ramirez, and others. They had
recently moved to 73rd Street because the house they had been living in was
being shot at in drive-by shootings.
Their mother thought the 73rd Street house was in a calmer neighborhood.
On the
night of the murders, January 11, 2008, defendants James “Stomps†Riggins and
Christopher “Fat Boy†Hernandez were driving from one party to another in
Riggins’s Crown Victoria. Also in the
car were Noemi Perez and Crystal Picasso. Riggins and Hernandez were VDS gang
members. They drove down 73rd Street and
saw three guys (the victims) outside a house.
Hernandez said that the three should not be in his “hood†and yelled at
them and threw up his index and middle fingers in the sign of the
Diamonds. Riggins drove on to a nearby
house where they picked up defendant Orlando “Silent†Camacho. Camacho was also a VDS gang member, and was
the cousin of Frank Camacho.
After
Camacho got in the car, defendants talked about wanting to fight the three guys
that were outside the house on 73rd Street.
They called them “Scraps.†Hernandez
said he wanted to go fight them. Camacho
said he did not, but that he would have their backs. They drove back and parked on the corner of
73rd Street and 14th Avenue. According
to the females in the car, there was no talk about weapons, about ambushing,
about killing, or about hurting anyone.
However, the men did indicate they were going to fight the three guys
outside the house on 73rd Street. Defendants
got out of the car and walked down 73rd Street.
Picasso and Perez stayed in the car.
Aguirre had
just come home from work and was walking up to the house when one of the three
defendants, later determined to be Riggins, stopped and talked to him. However, Aguirre did not speak English. After speaking to Aguirre, Riggins continued
on down the street with his hands in his pockets. Aguirre went inside.
Isidro and
Victor Cedillo were inside the house eating when Aguirre came inside. Everyone else in the house had gone to
bed. The Cedillos heard people yelling
outside the house when Aguirre came in.
Aguirre told the Cedillo brothers in Spanish that he did not understand
what the people were saying to him.
Victor heard people on the lawn yelling out “scrap killer†and “14th
Avenue,†and “Diamonds.†He looked
outside and saw two guys (Camacho and Hernandez) on his front lawn.
Isidro
Cedillo became angry and went outside, telling the intruders (Camacho and
Hernandez), “Fuck your hood. I don’t
care where you guys claim.†Camacho and
Hernandez started throwing up gang signs and shouting gang nonsense. Aguirre went outside also, and Victor Cedillo
followed them as soon as he put on his shoes.
Victor did not see his brother or Aguirre pick up anything before they
left the house, but he grabbed a folding chair to use to defend himself. Victor saw the two men who had been yelling
run to a car, which he recognized as the one that drove by earlier, the
occupants of which had thrown out gang signs.
One of them reached into the back seat.
Victor panicked because he did not know what the person was reaching
for, and screamed at the other two to go back to the house. They all turned around and ran back toward
the house.
Victor was
still holding the chair. He did not see
his brother or Aguirre throw anything at the other two men, or hit them with
anything. As they ran toward their
house, Victor saw a guy come out from behind a car and approach them from the
opposite direction. The guy reached
toward his waist and pulled out a gun.
He immediately started shooting. The
gunman shot both Isidro and Aguirre as they ran away. He shot at Isidro six or seven times before
turning the gun on Aguirre. Victor ran
and hid behind a car, but not before the gunman (Riggins) shot him in the hand,
the leg, the thigh, the lower back and the buttocks, for a total of eight
bullet wounds. Victor heard Riggins run
back toward where his car was parked on 14th Avenue.
Crystal
Picasso, who was waiting in the front seat of Riggins’s car, testified that
when Camacho and Hernandez ran back to the car she saw two or three men chasing
them with chairs in their hands. Picasso
asked where Riggins was, and without answering, Camacho and Hernandez turned
around to go back. Then Picasso heard a
lot of gunshots. She thought the shooter
probably emptied the gun. She guessed
there were 10 shots, and it sounded like it was from the same gun. All three guys then came running back. Riggins said, “I know I got one, I know I got
one.†Hernandez said, “You should have
let me do it. I would’ve got all of
them.†Then they laughed. Hernandez said he had “kept telling†Riggins
to give the gun to him.
A witness
on 14th Avenue, where Riggins’s car was parked, saw the three defendants
running from 73rd Street. They had their
hands in the air, appeared boastful, and shouted something about “stone
killers.â€
Riggins
drove away fast. They headed for West
Sacramento. At 12:15 a.m. a West
Sacramento Police officer pulled Riggins over for speeding. Noemi Perez saw Riggins pass the gun to
Camacho, who was in the back seat, and tell Camacho to run, but Camacho did not
want to run. Because the officer was
needed on another call, could not detect the odor of alcohol in the car, and
did not see any signs of driver impairment, he let Riggins go at approximately
12:20 a.m. At approximately 12:30 a.m. he
received a notification that the vehicle he had stopped was being sought in
connection with a murder in Sacramento.
After being
stopped by the police, Riggins drove the group to a house in West Sacramento,
where a party was going on. Riggins took
a shower. Noemi Perez saw Camacho and
Hernandez passing the gun around at the party.
Stevie
Ramirez testified that he was a former VDS gang member. Two days after the shooting, he told a
detective investigating the case that Riggins told him that he (Riggins) had
thrown his gun over the West Capitol Bridge.
Ramirez told the detective that he did not want to talk because if he
did, his life and his family’s lives would be in jeopardy. He told the detective that he needed
protection. On the stand, Ramirez claimed
everything he told the detective was a lie.
Several
witnesses to the murders testified they heard multiple gunshots. Some thought the shots all came from one
weapon, but others thought they heard two different weapons. A total of 16 shell casings were collected at
the scene. They were found in a
half-circle pattern. All casings
contained the same marking -- 9mm Win Luger.
Six expended bullets were recovered, including one bullet fragment. All of the bullets collected were the same
color. Five of the expended bullets were
9mm Luger jacketed soft-nosed bullets.
The damaged bullet fragment could have been a 9mm Luger, but the
fragment was too damaged to make a definite determination. All of the cartridge casings came from the
same gun -- a semiautomatic or fully automatic firearm. It was possible, though not definitively
determined, that the firearm which fired all of the cartridge casings fired all
the bullets as well.
Only one
chair, a metal folding chair, was found and collected from the scene. No guns were recovered from the scene, but a
neighbor testified she saw a man take something from the vicinity of one of the
victims.
Isidro
Cedillo was shot in the left thigh, right thigh, and right knee. The fatal gunshot was to his left back over
the shoulder blade, which damaged his lungs and aorta, and exited his
chest. Isidro was not facing his shooter
when he was shot. Aguirre died of a
single gunshot wound to his back that exited his front and damaged his
pulmonary artery.
Riggins
testified at trial. He admitted to being
a VDS gang member. He admitted he was
angry at the Cedillo brothers for sending Frank Camacho to jail for shooting at
their house, and for calling the police and setting Riggins up. He admitted that he agreed to go fight the
Cedillos and that he had a gun with him, but claimed he did not intend to use
it. His defense was that when the
Cedillos and Aguirre noticed him, they started yelling aggressively, then one
pulled out a gun and shot at him twice.
He was scared for his life, so he pulled out his gun and started
shooting.
Hernandez
also testified at trial. He never saw
anyone with a gun. When he heard the
gunshots, he ducked down and ran back to the car. He admitted Riggins had said that he thought
he got one, and that he responded Riggins should have given him the gun because
he would have got them all, but that was only because he did not want everyone
to think he was a coward. He had not
known anyone was going to shoot.
DISCUSSION
I
Exclusion of Perez’s Double Hearsay Statement
Riggins and
Hernandez argue their rights to present a
defense, to confront the witnesses against them, and to due process were
violated when the trial court excluded the hearsay statements of Hernandez and
Camacho that the victims had thrown chairs at them. Camacho generally joins in the argument.
A. Underlying Facts
During
cross-examination by Camacho’s defense counsel, Noemi Perez was asked about a
statement she had made to a defense investigator. She was asked whether she told the
investigator that when Camacho and Hernandez returned to the car the first
time, they said the other guys were throwing chairs and had bats. She said she did not remember. Camacho’s defense counsel asked to approach.
Later,
during cross-examination by Hernandez’s counsel Perez was asked about the
demeanor of Hernandez and Camacho when they first returned to the car. Counsel asked if they had appeared scared, to
which Perez replied they had. Counsel
then asked if they were excited or upset about what had happened. The trial court sustained the prosecutor’s
objection that the question was leading.
Then counsel asked Perez to describe the demeanor of Camacho and
Hernandez when they returned to the car.
Perez replied that she did not remember.
Counsel
refreshed Perez’s memory of a prior statement she had made to the defense
investigator. When asked the question
again, she indicated Camacho and Hernandez had appeared tired and scared. Counsel asked if they had said anything, and
she replied, “No.†Counsel then asked,
“At some point, did Christopher or Orlando say to you that the other guys
--[.]†The prosecutor objected on
hearsay grounds, and the objection was sustained following an unreported
discussion.
B. Trial
Court’s Ruling
In a later
discussion on the record, the trial court indicated counsel for Hernandez had
tried to use Perez’s earlier statement to investigators, that Camacho and
Hernandez said the victims had thrown chairs at them and that they had bats, to
impeach her statement that she could not now remember them saying
anything. The trial court stated:
“There
are two points of analysis. One was that
because she doesn’t remember making that statement, it is hearsay inconsisten[cy]
and therefore it comes in through the rule on inconsistency.
“But
in this case the underlying statement itself is offered for the truth of the
matter asserted and for that second leg they were offering excited utterance.â€
The trial
court then noted that the evidence in support of the defense’s claim that the
statement constituted an excited utterance was that the defendants were tired
and scared when they returned to the car.
The trial court agreed that Perez’s failure to remember on the stand was
inconsistent with her earlier statement.
However, as to the excited utterance, the court found that it could
consider whether the declarants had a true suspension of their ability to
filter their statements, or whether there was some motivation for the
statement. The court concluded: “when I look at [the] quite candidly thin
description of their excitement or fear when they entered the car, and also
consider the motivation to provide a justification for subsequent conduct, it doesn’t
have the kind of suspension of filtering process such that it is appropriately
an exception to the hearsay rule.â€
The request
to admit the statement was renewed after some evidence was admitted that Victor
Cedillo had been armed with a chair.
Specifically, Victor testified he had taken a chair with him when he
went outside and Crystal Picasso’s interview with police was admitted in which
she stated “It looked like they had like a chair or bat or something like
that.†During the renewed request, it
was asserted that Hernandez was the one who stated they had been chased with
bats.
The trial
court confirmed its earlier ruling, stating it had taken into account
Hernandez’s gang involvement and prior involvement in a couple of
confrontations when evaluating Hernandez’s state of mind when he made the
statement. The court also considered
Noemi Perez’s testimony that the three defendants went to the house to fight,
and the evidence from which an inference could be made that Hernandez knew that
Riggins had a gun. The court also noted
that Noemi Perez was asked whether Hernandez made any statement while he was in
a state of fright, and she answered, “no.â€
In
confirming its earlier ruling, the trial court stated:
“This
is a statement that would be exculpatory for subsequent conduct, indeed, virtually
immediately thereafter, these two gentlemen, both of them Mr. Hernandez and Mr.
Camacho join in the effort again or rejoin the incident knowing of course that
Mr. Riggins is armed and knowing that they went there to fight.
“Consistent
with the cases I’ve cited, it’s a factor that you can consider in evaluating
whether or not this is truly a spontaneous exclamation or something that is
said to explain or justify past conduct or subsequent conduct, an exculpatory
statement that a reasonable person would make.
“When
I look at the totality of these factors and the case law that I referenced, I
don’t see the kind of spontaneous exclamation from unexpected, untoward, exciting
event that occurs that is made without reflection or without the reasonable
likelihood or possibility certainly that’s being made for other
purpose[s]. So I confirm my earlier
ruling.â€
C. Analysis
A
spontaneous declaration or excited utterance is an exception to the hearsay
rule. It is a statement that “(a)
Purports to narrate, describe, or explain an act, condition, or event perceived
by the declarant; and [¶] (b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.†(Evid. Code, § 1240.)
The
requirements for an admissible spontaneous declaration are: “(1) there must be some occurrence startling
enough to produce this nervous excitement and render the utterance spontaneous
and unreflecting; (2) the utterance must have been before there has been time
to contrive and misrepresent, i. e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in abeyance; and
(3) the utterance must relate to the circumstance of the occurrence preceding
it.†(Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460,
468.)
“The
crucial element in determining whether an out-of-court statement is admissible
as a spontaneous declaration is the mental state of the speaker.†(People
v. Gutierrez (2009) 45 Cal.4th 789, 811.) The speaker’s mental state must be such that
the speaker is dominated by nervous excitement and speaks without reflecting,
contriving, or misrepresenting. (
abrogated in part on other grounds as stated in People v. McKinnon (2011) 52 Cal.4th 610, 637-638.) A defendant’s self-serving statements are
inherently suspicious. (
745-746.)
We review
the trial court’s decision whether to admit a spontaneous statement for abuse
of discretion. (People v. Stanphill (2009) 170 Cal.App.4th 61, 73.) “[T]he discretion of the trial court is at
its broadest†when it determines whether an utterance was made while the
declarant was still in a state of nervous excitement. (People v. Poggi (1988) 45 Cal.3d 306, 319.)
The trial
court focused on whether Hernandez’s statement was a spontaneous declaration
because it agreed with the defense that Perez’s failure to remember his comment
was inconsistent with her prior statement.
The trial court reasoned that while an incident involving chair throwing
might create some excitement, it was not of the same character as the nervous
excitement that Hernandez might be expected to experience had the victims been
shooting. The court found the evidence of
any nervous excitement “thin.†Additionally,
Hernandez was a gang member who had been involved in confrontations before, and
understood that he and his codefendants were going to the house to fight. There was also evidence from which the trial
court could reasonably conclude that Hernandez knew Riggins had taken a weapon
to the fight.
All of
these factors weighed against a determination that Hernandez was so excited by
being chased by two people with chairs or bats that his reflective powers were
in abeyance when he made the statement.
This coupled with the fact that the statement was exculpatory and
self-serving was enough for the trial court to correctly determine that
Hernandez did not have the mental state to make a spontaneous declaration. The trial court did not abuse its broad
discretion in excluding Hernandez’s hearsay statement.
Turning to
the defendants’ constitutional arguments, they claim with little explanation
that the exclusion of Perez’s statement to an investigator violated their
federal Fifth and Sixth Amendment rights to present a defense, their Sixth
Amendment right to confront and cross-examine the witnesses against them, and
their Fourteenth Amendment right to due process. The arguments have no merit because defendants
forfeited the constitutional claims by failing to raise them below, because
there was no error on which to base the constitutional claims, and because the
exclusion of evidence pursuant to state law did not violate the defendants’
right to present a defense.
The trial
court specifically informed the parties that it would federalize all hearsay
objections, but “[a]ny other objections that raise constitutional issues,
you’ll have to state it, what it is so I know if you are asserting some due
process issue or something else.†The
parties stated they had no objection to proceeding in that fashion. Defendants failed to raise below any
objections on the federal constitutional grounds they now claim. The constitutional objections were not
preserved for appeal. (
892.) Hernandez’s reply brief argues
does not preclude the argument on appeal.
Had we determined the trial court’s ruling on the objection actually
raised at trial was erroneous, we could consider the consequences of that
error, including whether the error was so serious as to violate due
process. (Id. at p. 437.) However, as
we conclude that the trial court did not abuse its discretion in excluding
Perez’s statement, there is no error on which to base defendants’
constitutional claims. (
506, fn. 2.)
Finally,
the exclusion of Perez’s statement did not violate the defendants’ rights under
the Fifth, Sixth, and Fourteenth Amendments.
“ ‘As a general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s [constitutional] right to present a
defense. . . .’ [Citation.] [¶] It
follows, for the most part, that the mere erroneous exercise of discretion
under such ‘normal’ rules does not implicate the federal Constitution.†(People
v. Cudjo (1993) 6 Cal.4th 585, 611.)
Furthermore,
evidence in support of defendants’ self-defense theory was not completely
excluded. Victor Cedillo testified he
armed himself with a chair before going outside. Crystal Picasso testified she saw two or
three of the victims holding chairs and chasing the defendants. Her prior interview statement was admitted
into evidence, wherein she stated she thought the victims had chairs or bats in
their hands. She testified that
Hernandez and Camacho had appeared scared when they came running back to the
car. Hernandez testified that he saw
Victor come rushing out with a chair and figured they were going to get hit, so
he and Camacho ran away. A witness heard
a folding chair hit the ground. Riggins
testified the victims had “chairs and stuff†in their hands and were yelling at
him. A chair was found at the scene.
Because
evidence the victims were armed with at least one chair and possibly with bats
was not completely excluded, the exclusion of Perez’s statement did not
interfere with defendants’ right to present a defense. (People
v. Cunningham (2001) 25 Cal.4th 926, 999.)
Defendants’ constitutional arguments regarding the exclusion of Perez’s
statement fail.
II
Evidence of Uncharged Act (Camacho)
The
prosecutor brought a motion in limine
to admit evidence of defendants’ gang involvement. The prosecutor proposed to admit the evidence
both in support of expert opinion and for the truth of the matter for purposes
of motivation and for the gang enhancement (Pen. Code, § 186.22, subd.
(b)). The particular incident to which
Camacho’s argument is directed occurred in July 2007, approximately six months
prior to the crimes at issue in this case.
The
prosecutor initially stated that she would call the officer who responded to a
shooting, and who found defendant Camacho with his cousin Frank Camacho and two
other validated gang members in a bedroom.
Frank Camacho was hiding under the bed, defendant Camacho was sitting on
the bed, and the gun was also found in the bed.
Defendant Camacho’s hands were bleeding.
The trial
court initially ruled that it would preclude evidence of the shooting and of
defendant Camacho’s hands bleeding.
However, it overruled the objection to admission of the incident because
it was recent in time, the probative value was significant for intent and
motivation (both general motivation and the intent to assist a criminal street
gang), and because the prejudicial effect was comparatively minor.
Camacho’s
counsel requested the following instruction, which the trial court gave with
respect to evidence of alleged prior incidents of misconduct:
“This
evidence can be considered by you consistent with instructions I’ll give you
later in evaluating whether or not the defendants intended to promote or
further criminal street gang activity, or whether or not that intent serves as
a motivation to engage in conduct that was engaged in as alleged by the People.
“You
cannot consider this evidence to show that any one of these defendants have a
propensity for violence or a character trait of criminal activity, that would
be improper and [an] incorrect use of this evidence.
“I’ll
give more instructions on this issue. You can consider it as it goes to intent to
participate for motive in a criminal street gang, or as that intent relates to
motivation to engage in conduct that was alleged, but you can’t consider it to
show that [they have a] propensity for violence or character trait of being
criminal in nature, that’s inappropriate.â€
Camacho
then filed a motion in limine objecting to the admission of the incident
pursuant to Evidence Code sections 352 and 1101. The trial court ruled on the matter after
reviewing the police report of the prior incident. The court recounted the facts from the police
report for the record. A group of
Hispanic men had been “hanging out†on a car when another vehicle drove
by. One of the Hispanic men shouted
“gang war†and shooting commenced.
Officers were nearby and responded almost immediately. Inside the vehicle located in front of the
residence was a bloody handprint. Officers
followed a trail of blood from the seat of the car to the front door of the
house. The homeowner consented to a
search of the house. A number of people
were found in a bedroom, including defendant Camacho who was bleeding profusely
from a significant injury to his hand.
He denied any knowledge of the shooting.
Defendant’s cousin Frank Camacho was found hiding under the bed. In the bed was a firearm that had recently
been discharged. No arrests were made
and no prosecution was undertaken. The
police could not determine what had occurred.
The trial
court expressed that the prejudicial effect of admission would be that the jury
might speculate that defendant Camacho was the instigator of the shooting, that
he fired the gun unlawfully, or that he engaged in substantive
version of the facts would actually mitigate any prejudice, because it would
raise an inference that Camacho was not the aggressor.
The court
found that the evidence had probative value as to defendant Camacho’s
cooperation and collaboration with members of a gang, and that any prejudicial
effect because of speculation that he did something criminal in nature did not
outweigh the probative value. The court
ordered that the prosecution not argue or present to the jury any claim that Camacho
had committed some illegal act relating to the prior shooting incident, and
that the expert not give any such opinion.
Thereafter,
Detective Don Schumacher gave his expert opinion that defendant Camacho was a
member of the Diamonds gang. The opinion
was based in part on the incident in July 2007.
Immediately after Detective Schumacher’s testimony regarding the July
2007 incident, the trial court gave the following limiting instruction:
“All
of this evidence however cannot be considered as evidence that these gentlemen
have propensity for violence or a bad character such that they are more likely
have committed the crimes which are charged here.
“It
can only be considered as to whether or not they have intent or motivation to
engage in conduct on behalf of a criminal street gang.â€
Another
responding officer also testified regarding the July 2007 incident, after the
trial court ruled that any references to “male Hispanic subjects†be
deleted. He also testified about the car
with a bloody handprint, following the blood trail to the house, locating a
bleeding defendant Camacho inside a bedroom of the house, finding a recently
fired weapon in the bedroom, finding defendant Camacho’s cousin Frank Camacho
hiding under the bed, and hearing defendant Camacho claim to have hurt his hand
when he punched a fence.
Camacho
argues the trial court erred in admitting evidence of the July 2007 incident
because it was not relevant to the murder charge or to the gang enhancement,
and even if it were relevant to the gang enhancement, it was unnecessary in
light of “the plethora of evidence presented on appellant’s gang affiliation
and association with other gang members.â€
Camacho further argues that assuming the evidence was properly admitted
under Evidence Code section 1101, subdivision (b), which permits the admission
of prior acts evidence if it is relevant to prove a fact such as motive or
intent, it should have been excluded under Evidence Code section 352, which
gives the trial court discretion to exclude evidence if its probative value is
substantially outweighed by the danger of undue prejudice.
Rulings
regarding relevancy and the determination whether the probative value of the
evidence is substantially outweighed by the probability of undue prejudice are
reviewed under an abuse of discretion standard.
(People v. Lee (2011) 51
Cal.4th 620, 643.) That standard
requires this court to uphold the admission of evidence unless we find the
trial court acted arbitrarily, capriciously, or in a patently absurd manner,
and the admission of the evidence resulted in a manifest
v. Foss (2007) 155 Cal.App.4th 113, 125.)
Evidence of
the July 2007 incident was relevant both to the murder and attempted murder
charges and the gang enhancements. The
prosecution presented the case as a gang crime motivated by the desire to
eliminate competing gang members from the neighborhood. Camacho’s attorney, on the other hand,
defended him by claiming Camacho had not lived in the neighborhood for years,
did not know the victims had moved into the neighborhood, was not aware until
he got into Riggins’s car that Riggins and Hernandez intended to go fight with
“some Mexicans over on 73rd Street,†and had no idea Riggins was armed,
believing they were going to have a fistfight only.
Evidence of
Camacho’s gang affiliation as evidenced by his previous gang interactions was
material to the prosecution’s case because it showed the nature of Camacho’s
commitment to the gang, tended to refute Camacho’s claim that he did not know
Riggins had a gun, and that he had no motive to fight the victims. The July 2007 incident was particularly
probative because, like the present case, it involved a territorial dispute
between rival gangs. Because the prior
act involved a shooting, and because after the shooting defendant Camacho was
found in a room with other gang members and a recently fired gun, the incident
was material to the prosecution’s position that Camacho participated in a gang
territorial dispute knowing that Riggins was armed.
The
prejudicial effect of the evidence was not significant. Evidence is considered unduly prejudicial “if
it tends to evoke an emotional bias against the defendant as an individual and
has a negligible bearing on the issues.â€
(People v. Mendoza (2011) 52
Cal.4th 1056, 1091.) Prejudicial
evidence is evidence that inflames the emotions of the jury, motivating them to
reward or punish one side because of the jury’s emotional reaction to the evidence,
rather than evaluating the evidence for the point on which it was
relevant. (Ibid.) Evidence of the July
2007 incident was unlikely to inflame the passions of the jury because unlike
the present case, the July 2007 case did not result in any deaths. Furthermore, as the trial court indicated
Camacho may have been the victim in the prior incident.
The trial
court repeatedly instructed the jury on the limited purpose for which it could
use the evidence. We presume that the
jury followed these instructions. (
331.) For all of these reasons, the
trial court did not abuse its considerable discretion when it allowed admission
of the July 2007 incident.
III
CALCRIM No. 362
Riggins,
joined by Hernandez, claims the trial court erred when it gave the following
instruction:
“If
defendant James Riggins or defendant Christopher Hernandez made a false or
misleading statement before this trial relating to the charged crime, knowing
the statement was false or intending to mislead, that conduct may show that
they were aware of their guilt of the crime and you may consider it in
determining their guilt.
“You
may not consider the statement in deciding any other defendant’s guilt. If you conclude the defendant James Riggins
or defendant Christopher Hernandez made the statement, it’s up to you to decide
its meaning and importance.
“However,
evidence that the defendant made such a statement cannot prove guilt by
itself.â€
The
substance of their argument is that the instruction established a “permissive
presumption†of guilt. They claim that
the predecessor instruction on consciousness of guilt, CALJIC No. 2.03,
“contained judicially approved language that did not create a presumption of
guilt as to mental state, but CALCRIM No. 362 no longer contains that
language.â€
CALJIC No.
2.03 stated:
“ ‘If you find that before
this trial the defendant made a willfully false or deliberately misleading
statement concerning the crimes for which he is now being tried, you may
consider such statements as a circumstance tending to prove a consciousness of
guilt. However, such conduct is not
sufficient by itself to prove guilt, and its weight and significance, if any,
are matters for your determination.’ â€
(People v. Page (2008) 44
Cal.4th 1, 49, fn. 23.)
The
defendant in People v. Crandell
(1988) 46 Cal.3d 833 (Crandell) (overruled
on other grounds in People v. Crayton
(2002) 28 Cal.4th 346, 364-365), like the defendants here, argued that the
instruction erroneously permitted the jury to draw an impermissible inference
without foundation concerning his mental state.
(Crandell, supra, at p.
871.) The defendant in
defendant’s guilt is the ultimate determination of the truth or falsity of the
criminal charges, the jury might “view ‘consciousness of guilt’ as equivalent
to a confession, establishing all elements of the charged murder offenses,
including premeditation and deliberation, though defendant might be conscious
only of having committed some form of unlawful homicide.†(Id.
at p. 871.)
The Supreme
Court’s response was that Crandell’s “fear that the jury might have confused
the psychological and legal meanings of ‘guilt’ is unwarranted. A reasonable juror would understand
‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than
‘consciousness of having committed the specific offense charged.’ †(Crandell,
supra, 46 Cal.3d at p. 871.) The
court concluded that the instruction did not address the defendant’s mental
state at the time of the offense and did not compel the jury to draw any
impermissible inferences with regard to the defendant’s mental state. (Ibid.)
CALCRIM No.
362 has replaced the phrase, “consciousness of guilt†with the phrase,
“aware[ness] of [their] guilt of the crime . . . .†Defendants argue this means that under the
new instruction the jury is effectively being told that it may consider the
defendants’ awareness of their guilt of the crime as consciousness of their
legal guilt as to the specific offense. We
disagree.
As we
stated in People v. McGowan (2008)
160 Cal.App.4th 1099, 1104, the differences between CALJIC No. 2.03 and CALCRIM
No. 362 are “minor†and none of the differences “is sufficient to undermine our
Supreme Court’s approval of the language of these instructions.†As with the instruction given in
psychological and legal meanings of “guilt†of the crime. The jury would have understood that false
statements were not the equivalent of a confession, and were not themselves
sufficient to prove guilt. No error
appears in the giving of CALCRIM No. 362.
IV
Natural and Probable Consequences Instruction
Hernandez
and Camacho claim their convictions for voluntary manslaughter and attempted
voluntary manslaughter must be reversed because the instruction on natural and
probable consequences was not supported by sufficient evidence. We disagree.
The trial
court instructed the jury that it could find Camacho and Hernandez guilty of
murder or manslaughter either because they aided and abetted the murder
committed by Riggins with the intent that Riggins commit murder or
manslaughter, or because they intended to commit the offense of disturbing the
peace or simple assault, and under the circumstances murder or manslaughter was
a natural and probable consequence of the intended offense.
After the
jury began deliberations, the jurors sent several questions to the trial court
regarding aiding and abetting liability.
First, they asked whether, if they found Camacho and Hernandez guilty of
aiding and abetting, they could find them guilty of a lesser charge. The trial court responded with the following
instruction:
“Yes,
an aider and abettor may be found guilty of a lesser included crime than that
committed by the perpetrator.
“However,
if you find that those aiding and abetting had the same intent as the
perpetrator when the greater crime was committed, then they are guilty of the
same greater crime.
“If,
you find, however, that the crime committed by the perpetrator was not a
reasonably foreseeable (natural and probable) consequence of the criminal act
originally aided and abetted, but that a lesser included offense, committed by
the perpetrator during the commission of the greater included crime, was a
reasonably foreseeable consequence, you may find the aider and abettor guilty
of that lesser included crime.
“The
Court cannot accept a verdict of guilty for any individual Defendant on a
lesser included crime unless the jury has found that Defendant not guilty of
the greater crime or crimes.â€
Later, in
response to the above instruction, the jury asked if manslaughter was a lesser
included offense to first degree murder.
This question came after the jury had returned the verdict against
Riggins. The trial court gave the
following response:
“Are you asking me, if an aider and
abettor, under the natural and probable consequences theory, can be convicted
of a lesser offense such as manslaughter, when the perpetrator commits 1st Degree
Murder?
“If
so, the answer is yes, as long as the lesser included offense committed by the
perpetrator, during the commission of the greater offense, was a reasonably
foreseeable consequence.
“Please
refer to CALCRIM 403 and specifically the elements numbered 1, 2, and 3. Also, please refer to CALCRIM 640 and 3517.[
“If
not, please re-ask your question.â€
The jury
then asked, referencing their initial question, the following two questions:
“If you go to a fight not knowing
that a murder is going to occur [and] one does, can you be held accountable for
the crime?
“. . . Can you get to aiding [and] abetting by 401
and/or 403?â€
CALCRIM No.
401, referenced in the jury’s question, was the instruction on aiding and
abetting based on the knowledge and intent to aid and abet the
perpetrator. CALCRIM No. 403 was the
instruction on natural and probable consequences.
The trial
court answered by telling the jury that it seemed to be confused as to the
different theories of aiding and abetting.
The court re-read portions of CALCRIM Nos. 401 and 403. The court then explained that under CALCRIM
No. 401 the perpetrator and aider and abettor share the same intent, but under
CALCRIM No. 403, the perpetrator and aider and abettor do not share the same intent. The court instructed that the jury could get
to aiding and abetting by CALCRIM Nos. 401 and 403 because they set out
different legal theories.
The
complained-of instruction is CALCRIM No. 403, the natural and probable
consequences theory. Defendants claim the
trial court should not have given this instruction because there was
insufficient evidence to support this theory of guilt, as the shooting did not
result directly from the intended
crimes of disturbing the peace or simple assault, but from the victims’
their house armed with chairs, and because there was no evidence to establish
that defendants knew prior to the shooting that Riggins had a gun.
“The test
for determining whether instructions on a particular theory of guilt are
appropriate is whether there is substantial evidence which would support
conviction on that theory.
[Citation.] To determine whether
there is substantial evidence to support a conviction we must view the record
in a light most favorable to conviction, resolving all conflicts in the
evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial
evidence in support of conviction only if it can be said
on the evidence presented no reasonable fact finder could find the defendant to
be guilty on the theory presented. [Citation.]â€
(People v. Nguyen (1993)
21 Cal.App.4th 518, 528-529.) On this
record we find ample evidence for defendants’ manslaughter conviction as a
natural and probable consequence of the crimes of disturbing the peace or
simple assault, motivated as they were in this case by a gang turf war.
Defendants’
claim that the shooting was the result of the victims’ own conduct, and that
they could not have anticipated the victims would rush out of their home armed
with a chair or chairs when confronted by defendants is not worthy of serious
consideration. As previously stated,
there was evidence that the defendants were VDS gang members, and that the
victims were associated with a rival gang.
There was expert testimony that in Sacramento the Diamonds are
territorial and want to control the neighborhoods they live in. One of the past Diamond gang crimes occurred
when Frank Camacho, defendant Camacho’s cousin, drove by the Cedillo brothers’
(the victims in this case) house and pointed a gun at them. Victor responded by throwing a rock at the
passing car, and Frank Camacho fired two shots at him.
Another
past occurrence involved defendant Hernandez, who confronted the victim outside
the house where the victim was staying, and demanded to know what gang the
victim was from. The victim responded by
starting a fistfight, and Hernandez flashed a gun at the victim. In the earlier referenced incident involving
defendant Camacho, there was an exchange of gunfire when a car carrying gang
members drove by a house.
Past
experience alone would have informed defendants that the likely result of
confronting members of a rival gang at their home would result in an aggressive
response by the rival gang members, and they should have anticipated such a
response.
Defendants’
argument that the evidence did not establish that they knew prior to the
shooting that Riggins had a gun is contrary to the record. As stated, we draw all reasonable inferences
in favor of conviction. In this case
there was evidence Crystal Picasso told police she heard Hernandez say that he
“kept telling†Riggins to give him the gun.
It is reasonable to infer from this that Hernandez knew about the gun at
least during the incident. Hernandez’s
statement, also relayed by Picasso to police, that he “would’ve got all of
them†is evidence from which we may infer his intent.
Furthermore,
the gang expert testified that when members intended to confront rival gang members,
a gang that had access to firearms would take a firearm to the
confrontation. VDS had access to
firearms. If one person had a gun, the others
were likely to know it.
The issue
is whether under all of the circumstances “a reasonable person in the defendant’s
position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted by the
defendant.†(People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Defendants’ position in this equation
includes the fact that they are affiliated with a street gang and steeped in
gang culture. “When rival gangs clash .
. . verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is
unaware of these realities, and we see no reason the courts should turn a blind
eye to them.†(People v. Montes (1999) 74 Cal.App.4th 1050, 1056.)
The trial
court did not err in giving the natural and probable consequences
instruction.
V
Denial of Access to Juror Information
All
defendants argue the trial court abused its discretion in refusing a request to
release juror information in an attempt to support a motion for new trial based
on juror misconduct.
Camacho’s
attorney made his closing argument on
August 18, 2011. The jury returned its
verdict on August 31, 2011. On October
3, 2011, approximately one and one-half months after the fact, and a full month
after the verdict was rendered, one of Camacho’s cousins filed the declaration
that was the basis of the request to release juror information. The declaration stated that on the day
Camacho’s attorney delivered his closing argument, the cousin was having lunch
at the same restaurant as three of the jurors in the case. The declaration named the jurors by juror
number. The cousin stated that she
overheard the jurors talking about Camacho’s lawyer’s closing argument. They said, “The look on number 1’s face was
priceless.†They talked about Camacho’s
lawyer’s speech, saying that it was “flowing nicely†but was “frustrating
because he stuttered at times.†The
cousin stated that she did not know to whom the jurors were referring as
“number 1,†but she assumed it was her cousin.
On the basis of this declaration, Camacho claimed the jurors were
engaged in misconduct because they discussed the case outside the jury room.
In denying
the request, the trial court made the following comments:
“[T]here was a period here of seven
weeks or more between the heard conversation and the signing of the
declaration.
“There
was also a period of roughly two weeks after the conversation was heard before
and during which the Court was in session.
The jury was deliberating during which there was no disclosure of what
was heard.
“And
then the declaration pops up three days before the time set for judgment and
sentence. The timing sequence in the
connection there of the declarant as a family member causes the Court pause
with regard to accuracy and completeness.
“But
assuming that it is accurate, it’s just not the kind of conduct that
constitutes a reasonable basis to proceed here.
“It
is arguably a technical violation not to talk about any subject matter or
aspect of the trial, but that part which is clearly related to the trial
concerns the manner of presentation. It
is speaking style of the attorney, flowing nicely, stuttering at times without
any substantive reference to content or issues or subject matter really about
the case itself.
“That
part of the statement, ‘the look on number one’s face was priceless’, is
extremely difficult, indeed, impossible to understand. The dominant inference because we refer to
our jurors as juror number 1 and juror number 2 based on the seat of occupancy
is that that’s a referenced juror, but it could reference anyone including me.
“You
just don’t know. But when you look at it
as a whole, there is just not the kind of inference you can draw that there’s
misconduct of a character that would improperly influence a jury verdict. [¶] . . . [¶]
“I
would note in this case because the Court has a balancing obligation under the
case involving serious gang activity, gang tension, instances where the
witnesses were speaking in some instances with what would appear to be fear.
“This
is the type of case that the public policy of preserving the privacy and
confidentiality of jurors and not exposing them to the possible future
questioning or disturbance becomes a public policy matter that’s extremely
important.â€
Defendants
claim the trial court abused its discretion when it denied access to juror
information, and that such abuse of discretion deprived them of their federal Sixth
and Fourteenth Amendment right to trial
by an impartial jury free of misconduct.
The claim has no merit.
Following
the verdict in a criminal case, the defendant or his counsel may petition the
court for access to sealed personal juror identifying information, including
names, addresses, and telephone numbers, for the purpose of developing a motion
for new trial or for any other lawful purpose.
(Code Civ. Proc., §§ 206, subd. (g), 237, subd. (a)(2).) The petition must be supported by a
declaration establishing good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) If the petition and declaration establish a
prima facie showing of good cause and there is no compelling interest against
disclosure, including protecting jurors from threats or danger of physical
harm, the trial court must set the matter for a hearing to determine whether to
disclose the information. (
A prima
facie showing of good cause is “a sufficient showing to support a reasonable
belief that jury misconduct occurred, that diligent efforts were made to contact
the jurors through other means, and that further investigation is necessary to
provide the court with adequate information to rule on a motion for new
trial.†(People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552,
superseded by statute, but still setting forth the applicable test, as stated
in People v. Carrasco (2008) 163
Cal.App.4th 978, 990.) Even if the
petition sets forth a prima facie showing of good cause, the trial court may
not set the matter for a hearing if it finds a compelling interest against
disclosure. (Code Civ. Proc., § 237,
subd. (b).)
We review
the denial of a petition under the deferential abuse of discretion
standard. (People v. Carrasco, supra, 163 Cal.App.4th 978, 991.) We find no abuse of discretion in this case
because we conclude the trial court reasonably found good cause had not been
established. As the trial court noted,
assuming Camacho’s cousin’s declaration was accurate and truthful, the
violation was a technical one only. The
jurors did not discuss anything substantive about the case. The jurors’ conduct was not “ ‘of such a
character as is likely to have influenced the verdict improperly’
. . . .†(
Cal.App.4th 1314, 1322, citing Evid. Code, § 1150, subd. (a).) Defendants’ argument that if the jurors
talked about something nonsubstantive, they might have had a more substantive
discussion that was not overheard, is mere speculation and does not rise to the
level of prima facie evidence of good cause.
Additionally,
even if Camacho had made a prima facie showing of good cause, the court acted
well within its discretion in determining that there was a compelling interest
against disclosure. Code of Civil
Procedure, section 237, subdivision (b) provides that the trial court, “shall
not set the matter for hearing if there is a showing on the record of facts
that establish a compelling interest against disclosure. A compelling interest includes, but is not
limited to, protecting jurors from threats or danger of physical harm.â€
As the trial
court noted, the case involved serious gang activity, and the witnesses
appeared to be testifying with fear. There
is evidence in the record regarding the violence of gang culture, how gang
culture permeates the community, and how gangs intimidate non-gang members into
defying the criminal justice system. In
this particular case the gang defendants went to the home of their victims and
shot and killed two members of the household.
As this court stated in Rhodes,
“Few would quarrel with the proposition that the willingness of people to serve
on a jury would be chilled by the knowledge that, once deliberations are
complete, a party to the action may have unlimited access to the home address
and telephone number of each juror.†(
at p. 548.) Thus, the release of juror
information in cases such as this could jeopardize the ability of the criminal
justice system to prosecute cases involving criminal gangs.
Because of
the failure of defendants to establish good cause, and the compelling interest
against disclosure of juror identifying information in this case, the trial
court did not abuse its discretion in refusing to set the matter for hearing.
VI
Sentencing Issues
A. Riggins’s Sentence for Attempted Deliberate
and Premeditated Murder
The trial
court sentenced Riggins to 25 years to life on count three (attempted
deliberate and premeditated murder). He
argues the trial court should have imposed life in prison with the possibility
of parole. The People concede and we
agree.
Penal Code,
section 664, subdivision (a) provides that the punishment for attempted
willful, deliberate, and premeditated murder is imprisonment for life with the
possibility of parole. An unauthorized
sentence is subject to correction on appeal, and we shall direct the trial
court to modify the sentence on count three to life in prison with the
possibility of parole.
B. Riggins’s
Sentence Under the Gang-Enhancement Statute
The trial court
sentenced Riggins to three 15-year-to-life terms pursuant to Penal Code,
section 186.22, subdivision (b)(5). He
argues the correct sentence for the enhancement where the substantive offense
carries a life sentence is a minimum parole eligibility period of 15 years, not
a separate indeterminate term. The
People concede and we agree.
Penal Code section
186.22, subdivision (b)(5) provides that where the enhancement is to a felony
“punishable by imprisonment in the state prison for life [the defendant] shall
not be paroled until a minimum of 15 calendar years have been served.†People
v. Ortiz (1997) 57 Cal.App.4th 480, 485-486, held that this language was
“clear and unambiguous†and that the “enhancement is not an additional
determinate term, but an extended parole eligibility date.â€
We shall
order the sentence modified accordingly.
C. Sentence
for Count Three Gang Enhancement
Hernandez
and Camacho argue the trial court erred when it imposed a three-year four-month
sentence on the gang enhancement to count three, attempted voluntary
manslaughter. The People concede and we
agree. The trial court imposed sentence
on the gang enhancement for count three as if the underlying crime, attempted
voluntary manslaughter, were a violent felony, but it is merely a serious
felony for purposes of the gang enhancement.
Penal Code
section 186.22, subdivisions (b)(1)(B) and (b)(1)(C) provide that the
additional term for a serious felony is five years and the additional term for
a violent felony is 10 years. The trial
court imposed an additional term of three years and four months (one-third of
10 years) on the gang enhancement to count three.
Attempted
voluntary manslaughter is not a violent felony as defined in subd
