P. v. De Los Santos

Filed 8/1/07 P. v. De Los Santos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, James A. Stotler, Judge. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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A jury found defendant Rudy De Los Santos guilty of first degree murder. The jury did not find the firearm enhancement under Penal Codesection 12022.53, subdivision (d) to be true. (Unless otherwise indicated, all statutory references are to the Penal Code.) He was sentenced to 25 years to life in state prison.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)

Counsel stated defendant personally requests that the court address six issues: 1) whether there was substantial evidence defendant was the shooter; 2) whether there was substantial evidence to convict defendant under an aiding and abetting theory; 3) whether defendant was deprived of due process when court permitted in-court identification; 4) Whether it was error to grant a witness immunity; 5) whether it was error to permit a witness to invoke the right to remain silent in the presence of the jury; 6) whether the court erred in instructing the jury.

Defendant filed a hand printed supplemental brief of his own on June 8, 2007. He states in his brief: I am not sure if Im doing this right but Im trying can you please send a copy to my lawyer Im trying this is my life Im an innocent man not an angel but innocent man thank you for your time.^[1] In his brief, defendant claims he received ineffective assistance of counsel because his trial lawyer failed to request a lineup, there is a lack of substantial evidence he shot the victim and that a witness gave false testimony.

I

FACTS

Molly Mead testified she drove Eric Robertson to the market at Lampson and Harbor in Garden Grove in the afternoon of July 15, 2004 in a white Ford Explorer. She parked in front of the market. Another car parked two spots to the right. Mead recognized the passenger of the other car as Gary Woodside. Someone was in the drivers seat of the other car and another person was in the back, but Mead could not see them clearly because the windows were tinted.

The driver of the other car got out and approached the passenger side of the vehicle Mead was driving. He asked Robertson his name and then socked him in the face. Robertson tried to block the attack and told Mead to drive away. She attempted to do so, but found the vehicle was out of gas.

Two other men then approached Meads side of the vehicle. Both wore white tank tops, shorts, and white pulled up socks. Both had shaved heads, were Hispanic and appeared to be in their mid-20s. She had her head turned toward Robertson because she did not want to get hit in the face. When she turned around, she saw a gun being held across her lap. A finger was on the trigger. About the gun, Mead testified at trial, I believe it was a nine-millimeter. It had an orange tip on the end. I thought it was a fake. However, shortly after the killing, when Mead was crying and emotionally distraught, she told the police the gun was black and did not mention an orange tip. A replica or toy gun with an orange tip was found inside the Explorer.

During the investigation, Mead told the police someone was punching the victim from both the passenger and drivers sides of the vehicle. At trial, she said she remembered saying that, and added, I just remember chaos on both sides. I dont know exactly what or from who, but just chaos. She also said at trial that after she saw the gun, there was silence at first and then, He shot him. She closed her eyes waiting for a second shot. There was only one shot, and when she opened her eyes, the men were gone. During the trial, Mead identified defendant as the person who shot the victim.

Steven Jimenez testified he saw defendant approach the drivers side door of the white Explorer with a gun in his hand. It was Jimenezs brother, Javier, who was punching the victim from the passenger side of the Explorer, and Jimenez wasnt sure if defendant was there to shoot my brother or was there for another reason. Jimenez grabbed his brother and pulled him away from the passenger side.

Jimenez said that after he got his brother out of the way, I see the gun come across Mollys lap. And Mr. Robertson, Fatty, is in the passenger seat leaning back towards the drivers side of the car in this manner because they were fighting. And I see the gun about six inches from his back, and he pulls the trigger. Jimenez said he did not notice the color of the gun, but said it was a semiautomatic and that it did not have a wheel on it and was a square gun with a slide on it.

A crime scene investigator with the Orange County Sheriffs Department lifted a fingerprint from the side mirror on the drivers side of the vehicle. A fingerprint expert examined the fingerprint taken from the mirror and determined it was the same as known prints of defendant.

II

DISCUSSION

Sufficiency of evidence

Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jurys verdict. [Citation.] (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Conflicting testimony whether defendant was the shooter

In the brief, counsel points to conflicting testimony about whether or not one or two persons approached the vehicle where the victim was shot, and that Mead testified the gun appeared to have an orange tip, and real guns do not have orange tips. Defendant states in his hand printed supplemental brief: Mead testified that she observed two males approach the driver side of her vehicle one of them pointed a gun through the driver side. This conflicts with witness Jimenez testimony the shooter approached alone also real guns do not have orange tips in which Mead described me having. [] Witnesses claim I used a gun to shoot the victim when no gun was found the jury found the (me) defendant guilty of 1st degree murder, without a weapon (how???) When the victim died of a gun shot wound who shot this man?? What motive did I have?? If I was found guilty of murder shouldnt I have been found guilty of use with a firearm intent to kill especially when victim died of a gun shot!!! I was found guilty with no weapon & no motive!!!

Two witnesses testified they saw defendant shoot the victim. Defendants fingerprint was found on the side mirror of the car where the witnesses say he was standing when he shot the victim. Although there was conflicting testimony about whether or not the gun used had an orange tip, there was also evidence the gun was black, and that the gun actually used was not a toy or a replica. Additionally, there was evidence a toy gun with an orange tip was found inside the vehicle.

Under the circumstances in the record before us, we conclude there is sufficient evidence to support the jurys conclusion defendant was the shooter. We also conclude there is also sufficient evidence to support a conclusion the weapon used to kill the victim was real, whether or not it had an orange tip.

Jimenezs testimony

In his hand printed supplemental brief, defendant cites: my 14th Admentment on due process & 6th Admentment Right. About this argument, he states: Steven Jimenez adds things (details) to his testimony during trial when had plenty opportunitys in the beginning of the investigations why cause he was giving ammunity for false statements you give me 2 strikes facing my 3rd Ill make up a story that will make you cry the.

We do not reassess the credibility of witnesses. The defense cross-examined Jimenez, but apparently the jury believed him nonetheless.

Enhancement

In the brief, counsel queries: Was the jurys not true finding on the gun use enhancement inconsistent with the guilty verdict under the theory that [defendant] was the shooter? (See People v. Avila(2006) 38 Cal.4th 491, 601.) Defendant states in his supplemental brief: I was found guilty of 1st degree murder w/a use of a firearm due to the victim dieing of a gun shot wound which was the cause of death but was found not to be true on the gun use since they never recovered a gun or found gun powder on me [citation] was there substantial evidence to support a finding I was the shooter.

The jury found defendant guilty of first degree murder. The prosecutor did not contend that anyone but defendant was the shooter. Yet, inexplicably, the jury found it not to be true that defendant discharged a firearm causing the death. As a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. [Citation.]. (People v. Avila(2006) 38 Cal.4th 491, 600.)

In this case, two eye witnesses identified defendant as the shooter. Defendants fingerprint was found on the Ford Explorer. Accordingly, even though the logic of the jurys not true finding on the enhancement is not apparent, we give defendant the benefit and effect of the not true finding but uphold the guilty verdict on the substantive offense in this case because it is supported by substantial evidence.

Aiding and abetting theory

Counsel merely informs us that defendant requested the court address whether or not there was substantial evidence to convict defendant under an aiding and abetting theory. He provides a citation to People v. Durham (1969) 70 Cal.2d 171, 180-181, but makes no argument to support the issue. In that case, Durham contended the evidence was insufficient to convict him under an aiding and abetting theory because of a lack of evidence to support the theory. But the court rejected his argument because it did not comport with the prosecutions theory of the case. (Id. at pp. 179-180.)

We can find no indication there is any applicability of such a contentionhere either. In his argument, the prosecutor did tell the jury that various people conspired and aided and abetted in this homicide, but he never contended anyone but defendant was the actual shooter.

Ineffective assistance of counsel

For this ineffective assistance of counsel proposition, defendant cites People v. Blomdahl (1993) 16 Cal.App.4th 1242, a case in which defense counsel did not seek a live lineup. (Id. at pp. 1248-1249.) His argument hereis there were inconsistencies in the witnesses descriptions. He writes in his brief: Miss Molly Mead described me as being a male Mexican having a white tank top on, shorts, white socks shaved head with a goatee a typical gang member you see on T.V. sterotype if you will. Now Miss Molly Mead was the driver of the victims vehicle one of the main witness who said she looked into the shooters face (A) why did witness make a statement of not identifying me in one statement shown a sixpack by detectives then wants to I.D. me in open court. Attorney failed to push the issue on identification.

We view the evidence in the light most favorable to the judgment. Mead made an in-court identification of defendant as the shooter, as did another eye witness. Under such circumstances, we cannot conclude that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Defense counsel conducted thorough cross-examinations of the witnesses. [W]e accord great deference to counsels tacticaldecisions [citation], and we have explained that courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] [Citation.] (People v. Stanley(2006) 39 Cal.4th 913, 954.)

Immunity

In his brief, counsel questions whether or not it was error under section 1324 for the trial court to verbally grant immunity to witness Rebecca Mercado rather than require the prosecutor to file a written motion.

Defendants position is not apparent. Mercado was called as a witness. However, she refused to take the oath and never testified. When she refused to take the oath or to affirm or otherwise tell the truth, the court held her in contempt. The next day she was called again and once more refused to be sworn, this time in the presence of the jury. The court stated: Okay. Then as of yesterday, in light of your refusal to take the oath, you were found in contempt. I just simply find theres no purging of that contempt as of today. And I think we then need to proceed with getting the jury in here, swearing the witness, and then well go through this procedure that I just outlined again in front of the jury. In the presence of the jury, Mercado once again refused to take the oath, and the court refused to permit the prosecutor to question her.

Thus, whether or not Mercado was granted immunity is of no import since she did not testify. In fact, the court explicitly refused the prosecutors request to question her.

Invoking Fifth Amendment rights in the presence of jury

At the request of defendant, counsel asks in the brief: Was it error to have the witness Mercado invoke her Fifth Amendment rights on the stand in front of the jury?

In fact, the record does not show that Mercado invoked any rights at all. The court ordered her to take the oath and she refused. At that point, the court told her to step down and told the prosecutor to call his next witness.

Due Process

In the brief, counsel raises the question whether or not it was error for the trial court to overrule a due process objection by defense counsel and permit Mead to identify defendant. During the trial, but out of the presence of the jury, counsel and court discussed that Mead had been unable to identify defendant from a photo lineup prior to trial. Defense counsel apparently feared Mead would make an in-court identification of his client merely because he was the person sitting at the defendants side of counsel table.

[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. (Evans v. Superior Court (1979) 11 Cal.3d 617, 625, fn. omitted.)

We see no indication in the record before us that defendant ever made a request for a live lineup. Without such a request, there is no due process violation here. In fact, a decision not to request a live lineup is sometimes a reasonable tactical decision. (People v. Blomdahl, supra, 16 Cal.App.4th at p. 1249.) In the present case,that defense counsel did not request a live lineup may well have simply been good lawyering because Mead might have identified defendantjust as she did at trial.

Jury Instructions

Counsel asks in the brief whether or not it was error not to instruct the jury on a theory of self-defense and whether or not it was error not to instruct the jury on aiding and abetting as to assault only. There were two people at the drivers side of the vehicle in which the victim was shot, and defendant was the second person, not the shooter, according to defendants argument. The brief states: Under this theory, defendant was aiding and abetting an assault upon the victim and the shooting may not have been the natural and probable consequence of that assault. Was it error not to instruct the jury on this theory? (People v. Koontz (2002) 27 Cal.4th 1041, 1084; People v. Breverman (1998) 19 Cal.4th 142, 154.)

Trial courts only have a sua sponte duty to instruct on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense [citation], and on recognized defenses . . . and on the relationship of these defenses to the elements of the charged offense. [Citations.] (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)

There is no error in a trial courts failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)

Here, there is no indication at all defendant was defending himself. At the time of the shooting, the victim was defending himself from an attack on the passenger side of the vehicle while defendant reached through the drivers side and shot him. Thus, we cannot conclude the court erred when it did not instruct the jury on the law as it pertains to self-defense. Nor,as discussed above, is there any indication the court erred in not limiting the instructions with regard to aiding and abetting.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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^[1] As requested by defendant, this court did forward a copy of his brief to his lawyer.