P. v. Mendoza

Filed 5/9/07 P. v. Mendoza CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. OHara, Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION AND GENERAL FACTS

Appellant Daniel Lua Mendoza, Jr., was the driver in two drive-by shootings that occurred on May 22, 2004. Julian Espitia fired a handgun out the passenger window at two houses. A man was struck in the chest by a bullet, but he survived. An occupant of one of the houses admitted that he had been a member of the Original Gangsters Surenos (OGS), which is a Surenos subset. Gang expert Joe Aguilar testified that appellant is a member of the Brown Pride Catella (BPC), which is a Nortenos subset. Nortenos and Surenos are rivals. Appellant and six other BPC members had been injured in a drive-by shooting that occurred on February 28, 2004. Detective Aguilar opined that the May 22, 2204, drive-by shooting was committed to enhance and benefit the BPC. Appellant denied knowingly participating in the drive-by shootings. He testified that he was simply giving two friends a ride and Espitia unexpectedly fired a handgun out of the passenger window on two occasions.

Appellant was convicted after jury trial of three counts of attempted premeditated murder (counts 1, 4 & 5), two counts of shooting at an inhabited dwelling (counts 2 & 6), and two counts of permitting another to shoot from a vehicle (counts 3 & 7). Street gang enhancements were found true in connection with all the counts. It was found on count 1 that a principal personally and intentionally discharged a firearm proximately causing bodily injury and it was found on counts 4 and 5 that a principal personally and intentionally discharged a firearm. Appellant was sentenced to an aggregate term of 59 years to life imprisonment.

Appellant argues that the prosecutor misstated a controlling legal principle during his closing arguments and the court compounded the prosecutors error during its corrective advisement. As a result, the jury was permitted to convict him on an erroneous legal theory in violation of the rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We are not persuaded; neither the prosecutor nor the court misled the jury. Appellant also contends that he was improperly sentenced. Respondent concedes the sentencing errors and agrees that resentencing is required. We accept respondents concession as properly made. Accordingly, we will affirm the convictions and remand for resentencing.^[1]

DISCUSSION

I. Neither the prosecutor nor the court permitted the jury to convict appellant on an erroneous legal theory; appellants fifth, sixth and fourteenth amendment rights were not infringed.

A. Facts

After the parties rested, the court instructed the jury on the relevant principles of law, including the applicable mental states for the charged offenses and enhancements. (CALJIC Nos. 8.66, 8.66.1, 8.67 [attempted murder]; CALJIC No. 9.03 [shooting at an inhabited dwelling]; CALJIC No. 9.04 [permitting shooting from vehicle]; CALJIC No. 17.19.5 [intentional and personal discharge of a firearm causing great bodily injury enhancement]; CALJIC No. 17.24.2 [gang enhancement].) The court gave CALJIC Nos. 2.02 [sufficiency of circumstantial evidence to prove specific intent], 3.30 and 3.31 [concurrence of act and intent], and 3.32 [evidence of mental defect received for the purpose of determining whether appellant actually formed the required specific intent or premeditation].

During his initial closing argument, the prosecutor argued that appellants testimony conflicted with his earlier statements to the police. In relevant part, he argued:

The defendant lied [the night he was arrested]. The defendant himself admitted to you he lied.

Also undisputed is that seven months later he gave a statement to Detective King. And nine months after that, yesterday he tells you yet another story. And this is the story that he expects you, the jury, to now believe.

Also, he expects you to believe because remember, he had details of everything that happened, how he was driving around the people he picked up. Of course, remember yesterdays version of who he picked up when who was in the car during the shootings. All of a sudden was it a complete turnaround from what he said nine months before that to Detective King.

He also stated that conversations were had in that van, but for some reason he couldnt even tell you what the topics of the conversations were, let alone exactly what was talked about.

Is that reasonable? Is that really reasonable to think that? When he remembers so much detail of everything else that happened, but all of a sudden he doesnt remember the conversations?

In our law we are governed by a reasonable persons standard. What would a reasonable person do? And thats what you compare the defendant to.

In this situation, a reasonable person after the first shooting, would say hey, you just shot from my car. Get out of my van.

The court interrupted the prosecutors argument sua sponte and ordered a brief recess. During a conference with counsel, the court stated, I dont think it is right to say what would a reasonable person do. This is a specific intent crime. I think well get into trouble when you say that, so modify that and clarify that. The prosecutor replied, All Im doing is comparing what a reasonable person would do with what the defendant did, to judge what his actions were. [] Im going to get into specific intent in a moment. The court responded, Now, what Im suggesting is that you need to stay away from what a reasonable person would do to show some sort of criminal liability. It can become muddled and misconstrued and problematic. The prosecutor asked, How do I compare what he would do to what anyone else would do? Is it allowed to say is it reasonable to assume? The court answered, Sure. [] But please clarify that. The prosecutor replied, Yes. Well leave it at whats reasonable. Not a problem. The court asked, Anything else on that issue? and defense counsel replied, No.

The prosecutor resumed her closing argument, as follows:

What is reasonable in this case?

It is reasonable that when someone shoots from your car you pull over and you tell them to get out. It is reasonable that after a second shooting occurs from your car, in that same trip you pull over at least at that point and tell them to get out. It is reasonable to get them out of your vehicle. [] It is also reasonable that when you finally do drop them off --

Defense counsel objected and asked to approach the bench. During a sidebar conference, the court stated, On the same issue, whats reasonable. This is a little bit difficult because you talk about whats governed by the reasonable standard. The prosecutor replied, Thats why we are talking about reasonable doubt. I understand the reasonable -- whats reasonable governs every single thing. It is reasonable doubt. We are trying to show what the defendant claims happened is not true, therefore, his claims do not count as a reasonable doubt. Defense counsel stated, The Court made a comment earlier because we have a specific intent crime, the reasonable person standard does not apply. The court directed the prosecutor to clarify that reasonable person standard, and say we are not really talking a reasonable person in these cases. The prosecutor replied, Let me tell you where Im going. Im going to finish with whats reasonable, then Im going to talk about what the defendant did. What the defendant did, that is not reasonable. Therefore, his claims do not make a reasonable doubt in this case. Defense counsel objected, Thats the problem with that whole issue. You pointed out specific intent. Shes put before the jury already the statement a reasonable person, and then the Court stopped it or wanted it out, specific intent. You asked her to clarify that, and she continues to use the word reasonable. So the jurors [have] been given that word. Its still not clear. The court concluded the matter by stating that it was going to make a brief statement to the jury.

The court gave the jurors the following admonishment:

One of the things were talking about here is statements by counsel. We are governed by a reasonable person standard. Generally thats used if you are in a civil case and you cause somebody harm and say what a reasonable person would do. And in no way is counsel trying to mislead you.

But you have to understand what we are here for, the defendant must have had a criminal intent, either general criminal intent in allowing somebody to shoot out of his car, or specific intent to aid and abet a wrongdoer in the other counts.

So, remember, we are talking about specific intent or general intent. The defendant must have an intent.

The prosecutor resumed her argument, as follows:

Just to finish that thought, the reason that this information is being given to you, which Ill just give to you in advance, is you are governed in the criminal law by what is a reasonable doubt. It is only if you have a doubt thats reasonable that you dont convict. Were talking about whats reasonable to do. We left off with defendant drops off the shooter and some of the other people that he now claims were in the car with him. He continues to drive home.

Whats reasonable? You go to the police if you just witnessed a crime like that. You go tell them what you know.

What else is reasonable? That when you are finally even contacted by the police, that you then tell them what happened.

What do we have the defendant doing in this case? What are his claims and are those claims reasonable?

The prosecutor continued, arguing that appellants conduct was unreasonable.

Immediately thereafter, the prosecutor turned to the issue of appellants intent. She argued, The intent. Weve been talking about crimes that require a specific intent. What shows the defendants intent in this case? You have several key pieces of information. Later, she argued:

Were left in this case with the main issue of being intent. What did the defendant intend to do? We just talked about the different ways and the different things that point to the defendants specific intent in these crimes.

Ladies and gentlemen, if it walks like a duck, it talks like a duck, it looks like a duck, it is not a horse. Call it what it is. This defendant knew what was going on. He intended to help in what was going on. He had a motive and he continued to drive so that that shooter could commit these crimes, and that he, being the defendant, could help.

During the prosecutors rebuttal, she argued that the evidence demonstrated that appellant formed the specific intent to participate in the drive-by shooting. She then argued:

Now, theres an instruction that was read to you about the sufficiency of circumstantial evidence when you are trying to prove a specific intent. Dont forget one theory, it must be consistent with the theory that the defendant had the required specific intent, but two, dont forget this, it cannot be reconciled with any other rational conclusion. It has to be a reasonable interpretation. This is why it is important to consider what is reasonable in this case. This is what was discussed before.

What is reasonable in these situations? The People submit to you that the claims the defendant made were not reasonable in light of the circumstances and in light of what the law requires. Because they are not reasonable. They can be totally discredited and not used by you if you so choose.

You are [] also read an instruction about a mental defect. And this is to be used by you to determine if the defendant actually formed a specific intent to commit these crimes.

B. Neither the prosecutor nor the court misstated the law.

Appellant argues that the prosecutor and the court both misstated the law, allowing the jury to convict him on an erroneous legal theory in violation of his fifth, sixth and fourteenth amendment rights. He contends that as a result of the prosecutors impermissible argument and the courts erroneous clarifying admonishment the jury was permitted to apply a reasonable person standard to the charged offenses, rather than requiring it to find that the defendant possessed the required knowledge and intent for each of the offenses and enhancements. We are not convinced.

Appellant bears the burden of proving the existence of prejudicial prosecutorial misconduct. (People v. Van Houten (1980) 113 Cal.App.3d 280, 292.) [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutors remarks must be considered in the context of the argument as a whole; words and phrases should not be singled out and analyzed without reference to the entirety of the prosecutors argument. (People v. Dennis (1988) 17 Cal.4th 468, 522.) The court should not lightly infer that the jury drew the most damaging, rather than the least damaging, meaning from the prosecutors statements. (People v. Guerra (2006) 37 Cal.4th 1067, 1153.)

When the challenged remarks are properly considered in context, it is readily apparent that the prosecutor did not confuse or mislead the jury; it is not reasonably likely that the jury would have construed or applied the challenged remarks in such a way that they would disregard their instructions concerning the applicable intent and knowledge elements of the charged offenses and enhancements. The remarks challenged by appellant were part of an argument in which she contended that appellants testimony was unreasonable and not credible. After she demonstrated the unreasonableness of appellants defenses, she then discussed the intent requirements of the charged crimes. She set forth the evidence and argued that inferences drawn from such evidence proved appellants knowledge and malicious intent. At no time did the prosecutor argue, either directly or inferentially, that the jurors should substitute a reasonable person standard in lieu of determining whether defendant acted with the required intent and knowledge.

We also reject appellants contention that the courts clarifying admonishment actually confused and misled the jury. In assessing this claim, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 957.) Appellant improperly isolates one sentence to provide a skewed interpretation of the courts admonishment. When the challenged sentence is read in context, it is clear that the court did not direct the jury to apply a reasonable person standard. Rather, it explained that while the reasonable person standard generally is used in civil cases, in this matter the jury must determine whether appellant committed the prohibited acts with the required intent. It is not reasonably likely that the jury applied the courts clarifying admonishment in an impermissible manner.

Appellants comparison of the prosecutors remarks in this instance to those at issue in People v. Najera (2006) 138 Cal.App.4th 212 (Najera) is not convincing. There, the prosecutor incorrectly informed the jury on two occasions that a determination of heat of passion should be based on the defendants conduct in response to the provocation rather than whether the provocation itself was such that it would cause an ordinary person of average disposition to act rashly. The Court of Appeal explained, How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion. (Id. at p. 223.) In contrast here, the prosecutor did not incorrectly explain a principle of law. Rather, she urged the jury to reject defendants testimony because it was unreasonable and, therefore, not credible. The prosecutors subsequent discussion of the applicable intent and knowledge elements of the charged offenses and enhancements was legally correct. Thus, the comparison fails.^[2]

Accordingly, we conclude that neither the prosecutor nor the court misstated the law and the jury was not permitted to convict appellant on an erroneous legal theory. Neither the prosecutor nor the court created conflicting or inadequate instructions relating to intent that removed the elements of intent and knowledge from the jurys consideration.

II. Appellant must be resentenced.

Appellant was sentenced on count 1 to seven years to life plus a consecutive term of 25 years to life plus a consecutive term of 10 years that is stayed pursuant to section 654. He was sentenced on count 2 to 15 years to life concurrent to count 1. He was sentenced on count 4 to seven years to life consecutive to count 1 plus 20 years consecutive to count 1 plus 10 years stayed pursuant to section 654. He was sentenced on count 5 to seven years to life concurrent to count 4 plus 20 years concurrent to count 4 plus 10 years stayed pursuant to section 654. He was sentenced on count 6 to 15 years to life concurrent to count 4 plus five years to life stayed pursuant to section 654.^[3] No terms were set for counts 3 and 7; the court set forth the sentencing range for these terms and then stated, Thats stayed pursuant to [section] 654.

Appellant contends that he was improperly sentenced. Respondent concedes the sentencing errors and we accept this concession as properly made. First, appellant did not personally use or discharge a firearm in the commission of the attempted murders. Therefore, a criminal street gang enhancement should not have been imposed in addition to the firearm discharge enhancements for counts 1, 4, and 5. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.) Second, the court erred in failing to specify the terms imposed on counts 3 and 7. The correct procedure is to impose a sentence for the count and then to stay its execution pursuant to section 654. (People v. Thompson (1989) 209 Cal.App.3d 1075, 1079.) Finally, the proper sentence on count 1 is 25 years to life. ( 664, subd. (a); cf. People v. Jefferson (1999) 21 Cal.4th 86, 90, 99-102.)

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Gomes, J.

_______________________________

Kane, J.

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^[1] Appellant did not directly challenge the sufficiency of the evidence supporting the convictions and resolution of the issues raised on appeal does not require extended recitation of trial testimony or a prejudice analysis. Therefore, a detailed recounting of the factual circumstances of the offenses is unnecessary.

^[2] In any event, the judgment in Najera was affirmed because the court cured the prosecutors error by responding to a question by the jury on this point and directing them to the instruction correctly setting forth the applicable legal principle. (Najera, supra, 138 Cal.App.4th at pp. 224, 229.) Similarly here, the court correctly explained to the jury that the reasonable person standard is generally applicable in civil cases and that, in this instance, the jury must determine whether appellant possessed the requisite intent before convicting him of the charged offenses.

^[3] The minutes incorrectly reflect the courts oral pronouncement of sentence on count 6 by reciting that appellant was sentenced on this count to 15 years to life concurrent to count 4 plus 15 years to life stayed pursuant to section 654. Where there is a conflict between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)