P. v. Wilson

Filed 8/22/07 P. v. Wilson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.

_______________________________________

Frederick Wilson, Jr., appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with the following additional findings: the special circumstance that the murder was committed to further gang activities; that defendant personally and intentionally discharged a firearm, causing death; and that the offense was committed for the benefit of a criminal street gang. Defendants sentence included the term of life imprisonment without the possibility of parole. Defendant contends the trial court committed instructional errors and also erred in limiting defense counsels closing argument and by staying, rather than striking, certain enhancements. We affirm.

BACKGROUND

On the afternoon of July 25, 2000, Gerardo Fajardo drove his wife, Yanisa Fajardo (Yanisa), and his sister-in-law, Lucila Zambrano, to his mother-in-laws house on 68th Street between San Pedro and Main Streets in Los Angeles. The house was in an area claimed by the East Coast Crips gang. The East Coast Crips were engaged in a gang war with the Florencia 13 gang, with which Fajardo was affiliated.

As Fajardo and Yanisa were helping Zambrano get out of the car (Zambrano had been injured in an accident), defendant approached on foot. Defendant asked if Fajardo was a member of the Florencia gang, declared himself to be a Florencia killer, and fired five shots at Fajardo from close range. The first three hit Fajardo in the chest, abdomen, and collarbone. The next two hit Fajardo in the back as Fajardo turned away. Defendant then fled.

Fajardo died as a result of the gunshot wounds. Yanisa and Zambrano identified defendant from a photographic six-pack shown to them by the police. Zambrano also identified defendant in court during trial. Both witnesses testified that defendants appearance had changed between the time of the incident and the trial, which took place in February 2006.

Norma Hernandez lived in a second-floor apartment on San Pedro between 67th and 68th at the time of the incident. Hernandez testified that while sitting on her balcony she saw a man park a light blue station wagon in a red zone on San Pedro, get out of the car, and cross the street. The man returned to the car a few minutes later, looking back over his shoulder as he approached. The man then pulled on the door handle of the car, hesitated, and next boarded a bus that had stopped on the corner of 67th and San Pedro. At trial, Hernandez acknowledged she had selected defendants photograph from a six-pack photo card and had written on the card that she was 80 percent sure of her identification. But she further testified she could not recall making that identification, nor could she recall other statements regarding the incident attributed to her by investigating officers. Nevertheless, the events were more fresh in her mind when speaking with the officers soon after the 2000 incident than when testifying in court in 2006. (A police detective testified that Hernandez had made the identification during an interview the day after the shooting, and portions of Hernandezs statement to the detective were read into the record by the detective.)

Officers who arrived at the scene in response to a report of the shooting kept watch on the blue station wagon. A woman later identified as defendants cousin attempted to drive it away but was stopped. Inside the station wagon, officers found a clear plastic booking bag that contained defendants identification. A Redondo Beach police officer testified that the day before the shooting, he stopped defendant in the station wagon for an equipment violation. Defendant, who told the officer he had purchased the vehicle two days earlier, was taken to the station and booked on unrelated matters. Defendant was released that evening and given a plastic bag containing his personal items.

Defendant was arrested in Los Angeles on September 15, 2003. He gave a false name and date of birth to the arresting officer.

A gang expert testified as to the criminal activities of the East Coast Crips, the territory claimed by the gang, and the rivalry between the East Coast Crips and the Florencia gang at the time of the shooting. The expert had had contacts with defendant, whom he knew to be an East Coast Crips member. Fajardo had a Florencia tattoo on his back, which indicated Fajardos membership in that gang.

Defendant testified in his own behalf. He denied any knowledge of the shooting, asserting that he was with a friend in the blue station wagon the day before and was arrested in Redondo Beach. The station wagon had been stolen and did not need a key because a front ignition was busted. After defendant was released, he took his belongings, which had been placed in a plastic bag, and was picked up in the blue station wagon by the same friend. The friend next dropped him off, after which defendant realized that he had left the plastic bag in the station wagon. Defendant later received a telephone call telling him he was a suspect in a murder. Upon hearing this, he moved to Las Vegas because he did not want to get arrested. Defendants former girlfriend also testified for the defense, asserting that defendant was with her at home when the murder occurred.

In rebuttal, an officer testified that the blue station wagon did not have a punched ignition.

DISCUSSION

1. CALJIC No. 2.02

During a discussion of jury instructions, defendant requested that the court give CALJIC No. 2.01 (Sufficiency of Circumstantial EvidenceGenerally) instead of CALJIC No. 2.02 (Sufficiency of Circumstantial Evidence to Prove Specific Intent or Mental State). As stated in the Use Notes to both instructions, they are alternatives to each other and should not be given in the same case. If the only circumstantial evidence relates to specific intent or mental state, CALJIC No. 2.02 should be given. If the circumstantial evidence relates to other matters, or relates to other matters as well as specific intent or mental state, CALJIC No. 2.01 should be given and not CALJIC No. 2.02. [Citations.] And as stated in the Use Note to CALJIC No. 2.02, When the prosecution does not substantially rely on circumstantial evidence to prove guilt, neither instruction is required. [Citation.]

Defense counsel argued that CALJIC No. 2.01 was appropriate because of the Peoples reliance on circumstantial evidence derived from Hernandezs testimony that she saw defendant emerge from and later return to the blue station wagon and defendants identification papers later being found in the station wagon. The court responded that the People are relying substantially upon direct evidence in this case. There is circumstantial evidence, and certainly that issue of the connection between [defendant] and the car is of circumstantial evidence nature. But I see it as being corroborative type evidence to the substantial and significant direct evidence in this case. Accordingly, the court stated that it would instruct with CALJIC No. 2.02. The court reaffirmed its ruling when, after the prosecutors opening statement, defendant renewed his request for CALJIC No. 2.01. The court denied the request, the prosecutor noting that although evidence regarding the car was corroborative, the prosecutor was substantially relying on the direct evidence of my two eyewitness identifications and the prior identification by the third.

On appeal, defendant renews his argument that CALJIC No. 2.01 should have been given because great reliance was placed on circumstantial evidence to prove defendants guilt. We read the record otherwise, agreeing with the prosecutor that the case for guilt was primarily based on the two eyewitness identifications (by Yanisa and Zambrano), with the circumstantial evidence of Hernandezs identification being used to corroborate the eyewitnesses. On the other hand, circumstantial evidence was used to establish the degree of murder committed by defendant and whether the murder was committed for the benefit of a criminal street gang, thus supporting instruction under CALJIC No. 2.02. (See People v. Anderson (2001) 25 Cal.4th 543, 582.)

As noted in People v. Honig (1996) 48 Cal.App.4th 289, 341, CALJIC No. 2.02 was designed to be used in place of CALJIC No. 2.01 when the defendants specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. That was the situation here. Indeed, where circumstantial inference is not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct, the [CALJIC No. 2.01] instruction may confuse and mislead, and thus should not be given. [Citations.] (People v. Anderson, supra, 25 Cal.4th at p. 582.) Accordingly, the trial court did not err in instructing under CALJIC No. 2.02.

2. CALJIC No. 2.13

Also discussed during the conference on instructions was witness Hernandezs inability to recall observations and statements she had made six years earlier when the crime took place. The prosecutor stated that she did not want to have to argue that Hernandez was being untruthful in her testimony in order to use Hernandezs statements to the police detective the day after the shooting. To this end, the prosecutor submitted a modified version of CALJIC No. 2.13 that contained an additional third paragraph, which is set forth in italics, below.^[1] Defendant objected to the modified instruction. The objection was overruled, the trial court concluding that Hernandezs statement to the detective was trustworthy and the proposed modification was a correct statement of Evidence Code section 1237.^[2]

We reject defendants contention that modification of the instruction constituted prejudicial error. (Defendant did not object to the admission of Hernandezs prior statements, and any argument he now makes to admissibility has been waived.) Hernandezs statements to the detective were admitted under Evidence Code section 1237 (People v. Cummings (1993) 4 Cal.4th 1233, 12931294), and the trial courts modification of CALJIC No. 2.13 was a correct statement of law. In addition, given the minor role that Hernandezs testimony played in the prosecution of the case, any error in granting the prosecutors request to modify the instruction was harmless.

3. CALJIC No. 2.03

Defendant contends that the trial court erred in instructing under CALJIC No. 2.03 that if the jury found defendant had made a willfully false or deliberately misleading statement about his identity, the statement could be considered as a circumstance tending to prove consciousness of guilt. But as defendant acknowledges, his position that the instruction is justified only where, unlike here, the defendant makes an explanation of his behavior to the police which is consistent with his self-serving testimony at trial but inconsistent with the prosecutions evidence has been repeatedly rejected. (People v. Edwards (1992) 8 Cal.App.4th 1092, 11011104; People v. Williams (1995) 33 Cal.App.4th 467, 477479.) And as stated in People v. Turner (1994) 8 Cal.4th 137, 202 (overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5), the contention that the [CALJIC No. 2.03] instruction improperly highlights credibility problems revealed in [the defendants] trial testimony is unfounded.

4. Defense Counsels Closing Argument

In closing argument, defense counsel argued that Yanisas and Zambranos eyewitness identifications were unreliable because the two were so upset over what they had seen. Counsel continued: I dont know if any of you have ever been in stressful situations, but I think it is appropriate to point out to you that many people in stressful situations have difficulty in remembering and identifying people. [] I want to tell you something. Many years ago, I was a young man. I was a law student. I was a night watchman. At that point, the prosecutor objected to counsels argument. The court immediately sustained the objection, stating that [p]ersonal stories are not appropriate for argument. You can argue general principles, if you like . . . .

Defense counsel asked for a sidebar. There, counsel urged that argument based on his personal experiences was proper. The court replied that bringing in anecdotal personal stories is not appropriate.

We reject defendants contention that the trial courts ruling constituted prejudicial error. Although fiction, anecdotes, jokes and Bible stories are commonly regarded as acceptable in closing argument (People v. Harrison (2005) 35 Cal.4th 208, 248, italics omitted), defendant has cited no authority that an anecdotal personal story such as the one counsel was starting to tell here is similarly acceptable. Rather, [t]rial judges have the duty to responsibly and fairly control the proceedings to prohibit argument which is not supported by substantial evidence. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1390.) And [i]t is axiomatic that counsel may not state or assume facts in argument that are not in evidence. (People v. Stankewitz (1990) 51 Cal.3d 72, 102.) Accordingly, the trial court did not abuse its discretion in sustaining the prosecutors objection to defense counsels closing argument in this case. (See People v. Marshall (1996) 13 Cal.4th 799, 854855.)

5. Sentence on Enhancements

The jury found firearm use enhancements against defendant under Penal Code section 12022.53, subdivisions (b), (c), and (d). At sentencing, a term of 25 years to life was imposed under subdivision (d), and imposition of the lesser sentences under subdivisions (b) and (c) was stayed. Defendant contends that the latter two enhancements should have been stricken rather than stayed. We disagree.

As stated in People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061, each section 12022.53 enhancement should be imposed with a stay of execution for all but the enhancement with the greatest term of imprisonment. [Citation.] (Citing People v. Bracamonte (2003) 106 Cal.App.4th 704, 713.) Under Carrasco, defendants sentence was proper.^[3]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1]The CALJIC No. 2.13 instruction, with the modified portion in italics, provided as follows: Evidence that at some other time a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion. [] If you disbelieve a witnesss testimony that he or she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him or her describing that event. [] If you believe a witnesss testimony that he or she no longer remembers a certain event, you may consider evidence regarding a prior statement made by that witness as evidence of the truth of the facts as stated by that witness on that former occasion.

^[2]Evidence Code section 1237 provides: (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: []  (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness memory; []  (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness statement at the time it was made; []  (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and []  (4) Is offered after the writing is authenticated as an accurate record of the statement. []  (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

^[3]The issue of whether lesser enhancements under Penal Code section 12022.53 should be stayed or stricken is pending before the Supreme Court in People v. Gonzalez (2006) 146 Cal.App.4th 327, review granted March 14, 2007, S149898.