P. v. Romero

Filed 9/30/08 P. v. Romero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed as modified.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Romero.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Montiel.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendants Luis Valenzo Romero and Jose Demetrio Montiel of attempted premeditated murder (Pen. Code,  187, 664, subd. (a); all further statutory references are to the Penal Code, unless otherwise noted), three counts of assault with a deadly weapon ( 245, subd. (a)(1)), shooting at another person from a motor vehicle ( 12034, subd. (c)), two counts of shooting at an inhabited dwelling ( 246), and active participation in a criminal street gang ( 186.22, subd. (a)). Defendants contend Romeros trial attorney rendered ineffective assistance of counsel when he failed to raise a Miranda (Miranda v. Arizona (1966) 384 U.S. 436) objection to Romeros pretrial interrogation and to lodge a hearsay objection to the interrogating officers statements made during Romeros interview. Defendants also challenge the sufficiency of the evidence to support their convictions for discharging a firearm at an inhabited dwelling and complain the trial court erroneously instructed the jury on the offense of shooting at an inhabited dwelling (CALCRIM No. 965) and the defense of others doctrine (CALCRIM No. 505). As explained below, we modify Montiels sentencing credits but otherwise affirm the judgment.

I

Factual and Procedural Background

On the afternoon of June 14, 2005, 16-year-old Carlos Gonzalez rode his bicycle past five members of the Gangster Disciples (GD) street gang when one of them fired paint balls at him. Gonzalez reported the incident to Barrio Brown Revolution (BBR) gang member Benjamin Chavez Vera. GD and BBR are rival gangs and the paint ball assault occurred in an area of Tustin both gangs claimed. An angry Vera telephoned defendant Montiel, and a short time later Montiel, Romero, and others met to discuss the incident. Armed with golf clubs, the group approached the scene of the paint ball attack to confront the GD gang members.

The rivals exchanged words and a fight erupted. Although the GD members lacked weapons, they disarmed the BBR men, who fled the scene. Two GD men cornered Vera and beat him into unconsciousness. Montiel and Romero ran to Montiels car and sped the vehicle into the GD group attacking Vera, striking two of the GD assailants. After a U-turn, Montiel again drove toward the GD men. While balancing a shotgun on the windowpane, Montiel fired the weapon at least twice at the GD men. He struck the back and legs of one gang rival and the foot of another. Shotgun pellets also struck a nearby occupied apartment. Apprehended later that night, both Montiel and Romero claimed they had not been at the crime scene and denied any involvement in the crime.

A jury convicted defendants on all counts and found the allegation defendants committed the crimes for the benefit of a criminal street gang ( 186.22, subd. (b)) to be true. The court sentenced Montiel to 40 years to life in prison, and Romero to 32 years to life.

II

Discussion[1]

A. Trial Counsel Not Prejudicially Ineffective for Failing to Seek Exclusion of Defendants Pretrial Statements

The court admitted a recording of an interview between Detective Sean Whiteley and Montiel. The conversation included the following: Whiteley: Why would Shorty [defendant Romero] say that you were there? [] Montiel: I dont know. Shorty said that? [] Whiteley: Why would he make that up? [] Montiel: Shorty said that? [] Whiteley: Yeah. [] Montiel: Oh. [] Whiteley: Why would Shorty say that? And what is . . . [Vera] going to say when we talk to him? [] Montiel: I was calling him before 5:00. Come on. How hes gonna say I was there?

Romero and Montiel contend their trial counsel rendered ineffective assistance by failing to object to Whiteleys statements on the hearsay grounds.[2] The officers statement, Why would Shorty say you were there? is a statement of a nontestifying declarant offered for the truth of the matter stated, i.e., Montiel had been present at the crime scene. The Attorney General suggests the prosecution offered the statements for a limited purpose other than the truth of the matter asserted. But the Attorney General failed to cite a record reference to show the prosecution or the trial court limited the evidence in this fashion, and our review of the record shows neither the prosecution nor the trial court placed any limitation on the officers statements that Romero said Montiel had been at the crime scene. (People v. Turner (1994) 8 Cal.4th 137, 189-190, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [out-of-court statement properly admitted if nonhearsay purpose identified]; People v. Armendariz (1984) 37 Cal.3d 573, 585 [evidence inadmissible unless trial court identifies nonhearsay purpose and also finds it is relevant], disapproved on another point in People v. Cottle (2006) 39 Cal.4th 246, 255.) It is axiomatic that evidence of an out-of-court statement is received for all purposes, including the truth of the matter asserted, unless counsel objects. (See 3 Witkin, Cal. Evid. 4th (2000) Presentation,  394, p. 485.) Here, trial counsel failed to object or seek to limit the evidence for a nonhearsay purpose.

To establish a claim of ineffective assistance of counsel, defendants must show the representation they received fell below an objective standard of reasonableness and that defendants suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216.) Prejudice arises only if there is a reasonable probability of a more favorable result, i.e., a probability sufficient to undermine confidence in the outcome. (Ledesma, supra, at pp. 217-218.)

Here, the jury knew Romero had been arrested and interviewed five or six hours before officers interrogated Montiel. Jurors heard Romeros interview and knew he had not implicated Montiel. Whiteley testified he employed falsehoods as part of [his interviewing] technique to gain information and test the suspects credibility. As a ruse, Whiteley told Montiel he had evidence linking him with a matching shotgun shell, and that investigators discovered Monteils DNA and fingerprints at the crime scene. The officer explained he did this to try to get [defendants] side of the story . . . . Whiteley admitted his statement to Montiel there were about five people who point you out as the shooter formed part of the ruse, as was his statement that family members claimed Montiel had not been at work. Given this testimony, it is evident the jury would have recognized Whiteleys questions and statements concerning Romero were untrue and uttered solely to test Montiel, who claimed he had been at work at the time of the incident. Moreover, the trial court instructed the jury to base their decision on the evidence presented and not on conjecture, thereby eliminating the remote possibility the jury would speculate the officers statement could have referred to an unrecorded statement.

Overwhelming evidence apart from Whiteleys statements implicated defendants in the crimes. Montiels 13-year-old brother-in-law Roman Baltazar told officers[3] that on the day of the shooting he was walking home when he saw his cousin Vera, Montiel, and Romero (Montiels sisters boyfriend) walking together. Vera and Romero carried golf clubs. Baltazar kept walking home but moments later Montiel and Romero ran past him and jumped into Montiels white Ford Probe, which was parked in front of Baltazars house and sped off. According to Baltazar, they looked like they were . . . mad . . . . Although Vera was unconscious when the shooting occurred, he testified he accompanied defendants to confront the GD men. Gonzalez told officers he saw Montiel and Romero leave together carrying golf clubs. One of the victims, Joshua Pilgrim, selected Romero from a photographic lineup. Criminalists located a particle of gunshot residue on Romeros shirt. Given the evidence against the defendants, there is no reasonable probability the result would have been more favorable had counsel acted to exclude the hearsay.[4]

The second issue raised by defendants relates to Whiteleys interview with Romero. Whiteley prefaced the interview with the following: I want to find out what happened tonight because I know there are always two sides to the story. Im going to what Id like to do is read you your rights, tell you what I know and see what you can tell me. As Whiteley read Romero his Miranda rights, Romero acknowledged he understood each right, and then answered the officers questions about the crime. Romero denied being at the scene, claiming he had been home with his wife.

Romero contends his counsel rendered ineffective assistance by failing to raise a Miranda objection because Whiteley neglected to obtain an express waiver of rights. We need not dwell on the issue for the matter is settled under the law. Simply put, a defendant impliedly waives Miranda rights when, after receiving an admonishment of those rights, he responds affirmatively that he understands those rights and then answers the officers questions. (People v. Whitson (1998) 17 Cal.4th 229, 247-248.) Counsel therefore did not provide ineffective assistance for failing to lodge a meritless Miranda objection.

B. Substantial Evidence Supports the Convictions for Discharging a Firearm at an Inhabited Dwelling House

Section 246 provides, Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, [etc.] is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. [] As used in this section, inhabited means currently being used for dwelling purposes, whether occupied or not.

Defendants argue there was insufficient evidence the apartment was being used for dwelling purposes. In reviewing the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence (People v. Rayford (1994) 9 Cal.4th 1, 23) and draw all reasonable inferences in support of the judgment. A defendant may not gain a reversal on this ground unless it appears that under no hypothesis is there sufficient substantial evidence to support the conviction. (People v. Sanchez (2003) 113 Cal.App.4th 325, 329.) Consequently, a defendant bears an enormous burden when challenging the sufficiency of the evidence. (Id. at p. 330.)

Police found shotgun pellet impact holes spread over an area of about 10 feet on and near the front door of an apartment building on Newport Avenue. Detective Luis Garcia testified he conducted interviews in this area on the day of the shooting. According to Garcia, the area that is marked here on Peoples [exhibit] 1, 14791 Newport Avenue, Apartment A, [were] occupied apartments. Garcia explained the apartments were inhabited, and the area up along and on Kenyon Drive was densely populated. This constituted substantial evidence the building was being used for dwelling purposes on the day of the shooting.

Defendants also assert there was no evidence they discharged their weapon more than once at the building. But witnesses testified Montiel fired the shotgun at least twice in the same general direction and that both victims were close together. Given this evidence and the pellet spray on the apartment door, the jury could reasonably conclude Montiel discharged the shotgun twice at the dwelling.

Defendants also complain there was insufficient evidence they shot at the building. They base their argument on the assumption section 246 is a specific intent crime. Because section 246 prohibits discharging a weapon at a building, defendants reason the statute requires evidence the shooter specifically intended to hit the building. We disagree.

Section 246 is a general intent crime, and therefore it does not require a specific intent to accomplish a further act or achieve a future consequence beyond shooting at an occupied building or other proscribed target. (People v. Overman (2005) 126 Cal.App.4th 1344, 1357 (Overman).) As interpreted, the statute does not require the defendant shoot directly at an occupied building or harbor a specific intent to strike it. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) It also prohibits shooting in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in and around it. (Overman, at p. 1356.) Conscious disregard may be inferred from the nature and circumstances of the act. (Id. at pp. 1356-1357.) Defendants acknowledge case law is squarely against them.

Similarly, the trial court did not err in responding to the jurys request for clarification . . . [whether] the house need[ed] to be the intended target or can it be the unintended result of another target? The trial court, cognizant of Overman, provided the identical answer approved in that case: An act done with reckless disregard of probable consequences is an act done with intent to cause such result within the meaning of the words used in the instruction related to Count[s 8 and 9]. If you conclude that the defendant was aware of the probability that some shots would hit the building and that he was consciously indifferent to that result, that is . . . a sufficient intent to satisfy the statutory requirement. (Overman, supra, 126 Cal.App.4th at p. 1355.) We discern no error.

C. CALCRIM No. 505 (Defense of Others)

Based on evidence defendants intervened in Veras defense, the court instructed the jury with CALCRIM No. 505, which provides in part: The defendant acted in lawful defense of another if: [] 1. The defendant reasonably believed [Vera] was in imminent danger of being killed or suffering great bodily injury; [] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and [] 3. The defendant used no more force than was reasonably necessary to defend against that danger.[5]

Defendants contend the third element misstates the law: In California, the doctrine of self-defense turns entirely on the nature of defendants belief in the need to use the force he actually used. [Citation.] Defendant must subjectively hold a belief that the force was required and that belief must be objectively reasonable. [Citation.] [] If those subjective and objective requirements are met or, more correctly, if the prosecution fails to prove that defendant did not harbor the specified beliefs then the amount of force defendant actually used is irrelevant. (Original italics.) We do not find the contention persuasive.

The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules . . . . First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury; thus [a] misdemeanor assault must be suffered without the privilege of retaliating with deadly force. [Citations.] Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack. (People v. Clark (1982) 130 Cal.App.3d 371, 380 (Clark), disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92; People v. Pinholster (1992) 1 Cal.4th 865, 966 [any right of self-defense is limited to the use of such force as is reasonable under the circumstances].)

Defendants agree CALCRIM No. 505 is supported by language from Clark, supra, 130 Cal.App.3d 371, but argue Clark was incorrect in divorcing the amount of force used from defendants belief, and that Clarks reliance on People v. Young (1963) 214 Cal.App.2d 641 was misplaced because Young noted justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary. (Young, supra, at p. 646, italics added.) Defendants use a hypothetical to illustrate their point: [U]nder CALCRIM No. [505], if someone points a stick at defendant in a dark alley and defendant responds with deadly force reasonably thinking the stick was a gun, then self-defense would not obtain because the actual force used was, quite plainly, more than was reasonably necessary.

Defendants confuse reasonably necessary with actually necessary. As CALCRIM No. 505 explains: The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the killing was not justified. (Italics added.) The defense would therefore apply in defendants hypothetical if a person reasonably believed the stick was a gun and deadly force was necessary under the circumstances.

Defendants contend [t]he authors of CALJIC correctly expressed the concept in CALJIC Nos. 5.10 and 5.30 which list[] only the first two elements in CALCRIM No. 505 and thereby focus[] on defendants subjective belief and the objective reasonableness of that belief. Not so. CALJIC No. 5.10 provides, Homicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime. CALJIC No. 5.30 provides, It is lawful for a person who is being assaulted to defend [himself] from attack if, as a reasonable person, [he] has grounds for believing and does believe that bodily injury is about to be inflicted upon [him]. In doing so, that person may use all force and means which [he] believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent. (Italics added.) The italicized language of CALJIC No. 5.30 is nearly identical to the language used in CALCRIM No. 505. The trial court did not err in giving CALCRIM No. 505.

D. Abstract of Judgment

The parties agree the abstract of judgment for defendant Montiels sentence must be corrected to credit him with 865 days (752 actual, 113 conduct) for time served before sentencing.

III

Disposition

The judgment is modified ( 1260) to credit defendant Montiel with 865 days (752 actual, 113 conduct) of custody credit. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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[1] Each defendant joined in the arguments made by the other. (Cal. Rules of Court, rule 8.200(a)(5).)

[2] Montiel withdrew before trial an objection the questioning violated his Miranda rights. At trial, he made a motion to strike the video after it was played on the grounds it contained improper character evidence. Montiel moved to exclude the tape of the Romero interview for the same reason, and Romero joined the motion, arguing it lacked relevance, presented improper character evidence, and was more prejudicial than probative. The court admitted the evidence because it tended to show defendants made untruthful statements when considered with other evidence, and Romeros tape-recorded statements also tended to show he actively associated with a criminal gang.

[3] Baltazar testified and the court admitted a tape recording of his February 23, 2006, interview with Whiteley.

[4] Montiel does not raise the issue independently and simply joins in Romeros arguments. Romero characterizes the record as containing a strong body of evidence that Montiel drove the car and fired the shotgun. The record confirms that assessment. The white Ford used in the shooting belonged to Montiel and several witnesses identified Montiel as the driver and shooter.

[5] The complete version of CALCRIM No. 505 provided: The defendant is not guilty of attempted murder/or attempted voluntary manslaughter if he was justified in attempting to kill someone in defense of another. The defendant acted in lawful defense of another if: [] 1. The defendant reasonably believed that [Vera] was in imminent danger of being killed or suffering great bodily injury; [] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [] AND [] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to someone else. Defendants belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the attempted killing was not justified. [] When deciding whether the defendants beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendants beliefs were reasonable, the danger does not need to have actually existed. [] The defendants belief that someone else was threatened may be reasonable even if he relied on information that was not true. . . . [] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of great bodily injury has passed. This is so even if safety could have been achieved by retreating. [] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [] The People have the burden of proving beyond a reasonable doubt that the attempted killing was not justified. If the People have not met this burden, you must find the defendant not guilty of attempted murder/or attempted voluntary manslaughter.