P. v. Torres

Filed 1/31/07  P. v. Torres CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

            APPEALS from a judgment of the Superior Court of Los Angeles County.  Ronald  S. Coen, Judge.  Affirmed (as to Ortiz); reversed in part with directions and affirmed in part (as to Torres and Coreas).

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            Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Torres.

            Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Juan P. Ortiz.

            David D. Carico, under appointment by the Court of Appeal, for Defendant and Appellant German Y. Coreas.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

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            Antonio Torres, Juan Ortiz, and German Coreas (collectively, defendants) were charged with several counts of murder, attempted murder, and firearm and drug possession, although not every count was alleged against all defendants.  Before trial, the court denied Torres' and Ortiz' motions to suppress evidence.  (Pen. Code, § 1538.5; all further undesignated section references are to the Penal Code.)  Thereafter, also before trial, as part of a plea bargain, Ortiz pleaded no contest to one second-degree murder and admitted that he personally used a handgun during the murder.  (§§ 187, subd. (a), 189; 12022.53, subd. (b).)  After trial, pursuant to the plea bargain, the court imposed an aggregate 25 years-to-life sentence on Ortiz and dismissed the other 8 charges pending against him.

            After Ortiz' no contest plea, the prosecution filed a third amended information charging Torres with nine crimes:  3 murders (counts 1, 4, and 6), 3 attempted murders (counts 2, 5, and 7), and 2 gun and 1 drug possession charges (counts 8-10), all but the drug possession charge including various gun use and gang allegations.^[1]  Coreas was charged as a codefendant in four crimes:  2 murders (counts 1 and 6) and 2 attempted murders (counts 2 and 7).

            The jury convicted Coreas of all 4 counts with which he was charged (counts 1, 2, 6, and 7), finding both murders to be first-degree and both attempted murders to be premeditated (§ 664).  The jury also found that in all four crimes, a principal personally used and discharged a firearm causing death or great bodily injury; Coreas intentionally committed the crimes as a gang member to benefit the gang; and he committed multiple murders.  (§§ 12022.53, subds. (b)-(e)(1); 190.2, subd. (a)(22), 186.22, subd. (b)(1)(A); 190.2, subd. (a)(3).)  The jury convicted Torres of the same four crimes with the same findings.  In addition, the jury convicted Torres of first-degree murder in count 5 and premeditated attempted murder in count 6 with the same findings as in counts 1, 2, 6, and 7, and of possessing drugs (Health & Saf. Code, § 11377, subd. (a), count 10).  The jury acquitted Torres of both gun possession charges (counts 8 and 9).

            The court sentenced Coreas to 2 life-without-parole terms for the 2 murders, 2 life terms for the attempted murders, and four 25 years-to-life terms for the gun enhancements, all consecutive to each other.  The court sentenced Torres to 3 life-without-parole terms for the 3 murders, 3 life terms for the 3 attempted murders, four 25 years-to-life terms for the gun enhancements, 30 years for the gang enhancements, and 2 years for drug possession, all consecutive to each other. 

            Defendants appeal.  Torres and Ortiz contend that (I) the court erred in denying their motion to suppress evidence (§ 1538.5) obtained at the time of their arrest.  Torres and Coreas contend that (II) insufficient evidence supports some of the gang enhancements; they also contend that the court erred in (III) instructing the jury regarding motive pursuant to CALJIC No. 2.51 (Fall 2006 ed.; all further CALJIC references are to the Fall 2006 ed.) because doing so lowered the burden of proof regarding the gang allegations; and (IV) failing to instruct the jury sua sponte regarding accomplice testimony because prosecution witnesses Monica Quelex and Manolo Alvarado (as to count 1) and Olivia Ruelas (as to counts 6 and 7) may have been accomplices.  Coreas contends that (V) the court erred in excluding Ortiz' pretrial statement that Coreas was not present during the count 6 murder, depriving him of due process under Chambers v. Mississippi (1973) 410 U.S. 284, and (VI) after that ruling, Coreas' counsel was incompetent for failing to seek immunity for Ortiz to testify, or to continue the trial until after Ortiz was sentenced.  Coreas also contends that the court erred in failing to (VII) instruct the jury sua sponte pursuant to CALJIC No. 2.71.7 regarding his pre-offense statements, and (VIII) define robbery, one of the listed predicate crimes in its instructions regarding the gang allegations.  Coreas also contends that the court erred by (IX) staying rather than striking some terms for the gang enhancements, and (X) imposing consecutive terms for firearm use on the murder counts for which he was sentenced to life without parole.  Finally, Coreas contends that cumulative error entitles him to reversal.

            We reject all defendants' contentions except (IV) and affirm the judgment as to Ortiz in its entirety.  Regarding issue (IV), we reject the contention as to Quelex and Alvarado regarding count 1 and as to Ruelas on count 6.  We agree, however, that Ruelas may have been an accomplice in count 7 and that the court prejudicially erred in failing to so instruct the jury.  We reverse Torres' and Coreas' convictions on count 7, vacate their sentences, and remand for a retrial on that count only and resentencing.  Because we have vacated Coreas' sentence pending his retrial on count 7, we need not address his sentencing issues (IX and X), which may be raised at resentencing.  In all other respects we affirm the judgment as to Torres and Coreas.  Because we hold that the only error involved issue (IV), we reject without further discussion Coreas' cumulative error claim.

FACTS

            Torres and Coreas were active members of the Fulton Street Locos sub-gang of the larger Mara Salvatrucha (MS) street gang, a violent street gang that committed crimes ranging from murder to drug sales.^[2]  The MS gang considered itself rivals with all other street gangs, and had a reputation as one of the most violent and vicious gangs, a reputation earned by attacks against members or perceived members of other gangs.  The crimes in this case occurred during a three-month period:  on November 11, 2002, Ruben Rizo was killed (count 1); on January 27, 2003, Jose Tlamasico was shot but survived (count 2); on February 10, 2003, Pablo Arreguin was killed (count 4)^[3] and Filiberto Perez was shot but survived (count 5); on February 14, 2003, Gustavo Chavez was killed (count 6) and Gino Ayala was shot but survived (count 7); and on February 17, 2003, police arrested Torres and Ortiz after a vehicle stop and searches of the car, Ortiz, and Torres disclosed guns and drugs (counts 8-10).^[4]

A.  The November 11, 2002 Murder of Rizo (Count 1).

            On the afternoon of November 11, Coreas, Torres, and Coreas' then-girlfriend Monica Quelex left a cemetery where they had been mourning one of Coreas' friends.  Coreas was driving the trio in Quelex' car.  They picked up Manolo Alvarado, another friend of Coreas.  According to Quelex but not Alvarado, when Coreas stopped in front of an apartment building, Torres got out and fired shots at a group of people standing outside the building, then returned to the car, whereupon Coreas drove off.  Later, the group stopped at the home of Melvin Bonilla, an MS â€