P. v. Sandoval

Filed 9/28/07 P. v. Sandoval CA2/4

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Reversed in part and remanded with directions, modified in part and remanded with directions.

Cannon & Harris and Donna L. Harris, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

PROCEDURAL BACKGROUND

On April 26, 2005, an information was filed charging appellant Aida Sandoval and Yessenia Romero[1] in count 1 with the murder of Belen Dercio (Pen. Code,[2] 187, subd. (a)); in count 2, with the murder of Rolando Rojas ( 187, subd. (a)); and in count 3, with the attempted willful, deliberate, and premeditated murder of Salvador Ramirez ( 187, subd. (a), 664). Under counts 1 and 2, the information alleged that appellant and Romero had committed the murders by lying in wait ( 190.2, subd. (a)(15)); furthermore, under each count it was alleged that a principal involved in the offense had been armed with a firearm ( 12022, subd. (a)(1)).

Appellant pleaded not guilty, and denied the special circumstances and firearm allegations. On October 19, 2005, a jury found appellant guilty of voluntary manslaughter regarding Dercio and Rojas, and guilty of attempted voluntary manslaughter regarding Ramirez. It found the firearm allegations not true.[3] The trial court imposed a total sentence of 14 years and four months in prison, composed of the high term of 11 years for count 1, a consecutive term of two years for count 2, and a consecutive term of one year and four months for count 3.

In our original opinion (People v. Sandoval (Nov. 14, 2006, B187977 ) [nonpub. opn.], review granted Feb. 7, 2007, S148917), we concluded that under People v. Black (2005) 35 Cal.4th 1238 (Black I) the trial court properly imposed the high term on count 1; we modified the sentence imposed on count 3 for reasons not relevant here and affirmed the judgment, so modified. The United States Supreme Court subsequently overruled BlackI in part in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our Supreme Court reversed our judgment with respect to the high term imposed on count 1, and remanded the case to us with directions to remand it to the trial court for resentencing in accordance with its opinion.[4]

FACTS

A. Prosecution Evidence

Early in the morning of February 4, 2003, appellant, co-defendant Romero, and Rolando Rojas were in the El Dorado bar in Los Angeles. Erica Arellano, who was Rojass niece, lived with Rojas in a building near the El Dorado. When appellant and Romero became involved in fights with women known as Green Eyes and The Tweaker, Arellano heard screaming and went to a parking lot adjoining the El Dorado, where a crowd had formed. There she saw Rojas trying to stop appellant and Romero from fighting with Green Eyes. After the fight ended, appellant asserted that the fight was Rojass fault. According to Arellano, appellant said that she was going to bring some gang over to fuck [Rojas] up, to kill him, and she referred to a gang named Florence.

After the fight, appellant and Romero decided to recruit someone to jump Rojas. The El Dorado was closed during the day on February 4, 2003, and both were too sore from the fight to do anything. The next day, appellant and Romero attended a funeral for a slain member of the Florencia gang, and also visited members of the Compton Trece (or La Tres) gang. They found several individuals willing to help them, including Juan Negrete, Miguel Del Rio, and Maria (or Mary) Gonzales.

On February 5, 2003, appellant and Romero, accompanied by these individuals, returned to the El Dorado bar in a van, which they parked near the bar. At 10:00 p.m. the same evening, Salvador Ramirez entered the El Dorado bar with his brother, Belen Dercio.[5] Both wore baseball caps.

After 11 p.m., Rojas went to the El Dorado. From a residence window, Arellano saw appellant or Romero (or possibly both), together with a man, standing near a pay phone close to the front of the El Dorado. Appellant or Romero (or possibly both) then walked toward the rear of the El Dorado. While appellant and Romero were in the El Dorado, Romero observed Rojas, and she sent Gonzales outside to tell the others that Rojas was wearing a hat. She subsequently noticed that other men were also wearing hats.

At approximately 11:30 p.m., Los Angeles Police Department officer Cesar Guitron was on motorcycle patrol near the El Dorado. As he drove past the bar, he saw appellant and Romero near the front door with some men, including Rojas. Negrete approached the group, raised a gun, and fired several shots at Rojas, thereby killing him. After Guitron turned his motorcycle, appellant, Romero, Negrete, and another male fled toward the van parked down the street.

Arellano heard gunshots, and ran to the front of the El Dorado, where she found Rojas on the ground. When Ramirez and Dercio heard the shots outside the bar, they left through the back door. As they walked through an alley behind the bar, Del Rio shot Dercio and then Ramirez with a rifle. Arellano, who had gone to a pay phone near the El Dorado to call 911, saw the shooting. Dercio died of two gunshot wounds to the head. Ramirez was hospitalized for nonfatal injuries.

Investigating officers later found a .22 caliber handgun on the tire of a car parked near the van, and a rifle inside the van. Due to a clerical error, the recovered handgun and the bullets found in Rojass and Dercios bodies were destroyed before they could be tested.

After appellant and Romero were arrested, they made statements during interviews by investigating officers. These interviews, which had been recorded, were played to the jury. Both admitted that they wanted to have Rojas beaten up. Appellant stated that there was an agreement that no guns were to be used except in self-defense.

It was stipulated that Negrete and Del Rio had previously been convicted of the murders of Rojas and Dercio, and the attempted murder of Ramirez.

B. Defense Evidence

Romero, who testified on her own behalf, stated that she and appellant worked at the El Dorado, where they were paid to talk to customers, dance with them, and encourage them to buy drinks. According to Romero, during the fight between appellant and The Tweaker, Arellano intervened against appellant, and Rojas played some role in the fight. The next morning, appellant and Romero decided to return to the El Dorado to recover money that the owner owed Romero, and to fight with The Tweaker and Arellano if they encountered them.

Romero testified that several individuals -- some affiliated with gangs -- offered to accompany them, and they all drove to the El Dorado together. Romero was not familiar with all these individuals. She knew that there were guns in the vehicle, but she and appellant made it clear that no one was to use a gun. According to Romero, she hoped that she could recover the money owed to her and leave the El Dorado without any trouble. She also denied that appellant said anything about jumping Rojas.

Romero testified that the El Dorados owner declined to pay the money owed her, and tried to persuade her and appellant to stay. Later, appellant and Rojas talked at the front of the El Dorado while Romero stood nearby. One of the men accompanying Romero and appellant then approached Rojas and told him not to move. When Rojas reached for his pocket, the man shot him.

Blanca Ramos, who is Romeros mother, testified that Romero had been working in Los Angeles to earn money so that she could move to Las Vegas, where three of Romeros children lived with Ramos.

Daniel Mendoza, a private investigator, testified on behalf of appellant. He had taken measurements and photos of the area surrounding the El Dorado, and indicated that the pay phone in front of the El Dorado was not visible from the windows in Arellanos residential building.

DISCUSSION

Appellant contends that (1) the trial court improperly admitted photographs of Dercios wounds, (2) an improper sentence was imposed on count 3, and (3) there was sentencing error under Blakely v. Washington (2004) 542 U.S. 296.

A. Admission Of Photographs

Appellant contends that the trial court abused its discretion under Evidence Code section 352 by admitting two photographs of Dercios wounds. The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The courts exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)

The two photographs depict Dercios head wounds at the crime scene: One displays a large entrance wound at the rear of Dercios head, and the other shows a coroners investigator pointing into Dercios mouth at an exit wound. Appellants counsel objected to their admission under Evidence Code section 352, contending that their prejudicial nature clearly outweighed their relevance. He argued that they merely confirmed the coroners testimony, which was not in dispute, but were absolutely gruesome. The prosecutor responded that they were circumstantial evidence of intent, and that he had advised the jury during voir dire that graphic photographs would be introduced, not to arouse disgust or sympathy, but to demonstrate the viciousness of the attack.

The trial court overruled the objection. Noting that the photographs, while graphic, were not anywhere close to the worse homicide photographs [he had] ever seen, the trial judge carefully articulated his reasons for denying the motion: The issue is, does the prejudicial value outweigh the probative value in this case. There is circumstantial probative value from these photographs. It does tell the manner in which this man was executed. . . .  The fact that this gun was put to this mans head and essentially had his head blown off goes to the nature of the case. The prosecution has the obligation to prove the malice aforethought. Thats one of the elements of murder. And the manner in which the death is inflicted goes to whether or not there is malice aforethought. . . .  So it clearly is substantial and I think for the prosecutions case, it is essential for probative value.

We discern no abuse of discretion. The trial court may properly admit photographs displaying a victims wounds to establish malice or intent, even though oral evidence describing these wounds has also been admitted. Thus, in People v. Crittenden, supra, 9 Cal.4th at pages 131-135, the defendant unsuccessfully objected to the admission of several photographs depicting a victims partially clad body with a knife protruding from it, another victims body in blood soaked clothes, and the victims traumatic head injuries. The court concluded that these photographs, though unpleasant, were properly admitted because they were highly probative of intent, planning, and deliberation, notwithstanding the undisputed testimony from the coroner about the victims wounds. (Ibid.; see also People v. Allen (1986) 42 Cal.3d 1222, 1255-1258 [no clear abuse of discretion in admitting close-up photographs of victims head wounds, given their relevance to the prosecutions theory that the killings were done in an execution-style fashion.])

Here, the photographs tend to show that Del Rio executed Dercio in a deliberate fashion, and thus gave substantial support to the prosecutions theory that appellant and Romero returned to the El Dorado with a premeditated plan to kill Rojas. Furthermore, our independent review of the photographs convinces us that they are unpleasant, but not unduly shocking or inflammatory. Accordingly, the trial court did not err under Evidence Code section 352 in admitting them.

Appellant argues that Dercios wounds are irrelevant to appellants intent because (1) Del Rio -- and not appellant -- shot Dercio, and (2) there is no evidence that appellant knew of Dercios presence in the El Dorado or that she acted with any intent that he be killed. We disagree. The manner in which Del Rio shot Dercio was probative of appellants premeditated intent to kill Rojas. On this matter, the prosecutor advanced the theory that appellant recruited several individuals to surround the El Dorado with directions to kill Rojas, who was identified to them as a man wearing a hat. Given that Dercio also wore a hat, the wounds to his head suggesting an execution-style killing corroborated this theory.[6]

In sum, the photographs were properly admitted.

B. Improper Sentence On Count 3

Appellant contends that (1) the trial court erred in determining the term of imprisonment for her conviction for attempted voluntary manslaughter under count 3, and (2) the abstract of judgment incorrectly states that her conviction under count 3 was for attempted murder. We agree with both contentions.

Under section 1170.1, which governs the imposition of consecutive sentences for multiple convictions, the trial court was obliged to impose a consecutive term of one-third the middle term for attempted voluntary manslaughter. ( 1170.1, subd. (a).) Because the middle term for attempted voluntary manslaughter is three years ( 193, subd. (a), 664, subd. (a)), the correct term for count 3 is one year.

The reporters transcript of the sentencing hearing discloses that the trial court imposed a consecutive sentence of 18 months on count 3. However, the minute order from this hearing states that a consecutive term of one year and four months was imposed on count 3. The abstract of judgment also recites a term of one year and four months, and incorrectly identifies count 3 as a conviction for attempted murder. Respondent concedes that the trial court imposed an improper term on count 3, and that the abstract of judgment contains errors regarding this count.

C. Blakely Error

Appellant contends that there was sentencing error under Blakely v. Washington, supra, 542 U.S. 296, arguing that the trial court improperly imposed the high term on count 1 and consecutive sentences on counts 2 and 3 in the absence of suitable jury findings. In Sandoval, supra, 41 Cal.4th 825, our Supreme Court concluded that the high term was imposed on count 1 in contravention of appellants right to a jury trial under the Sixth Amendment of the United States Constitution.

Appellants contention regarding the consecutive sentences fails under Black I and People v. Black (2007) 41 Cal.4th 799 (Black II). As the court explained in Black II, Cunningham did not address the holding in Black I that Blakely is inapplicable to Californias statutory scheme regarding consecutive sentencing, and nothing in Cunningham otherwise disturbs that holding. (Black II, supra, 41 Cal.4th at pp. 820-823.) We follow our Supreme Court on this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).

DISPOSITION

The judgment is reversed with respect to the sentence imposed on count 1 for murder, and the matter is remanded to the trial court with directions to resentence appellant on count 1 in accordance with Sandoval, supra, 41 Cal.4th 825. The judgment is also modified to reflect that appellants consecutive term of imprisonment on count 3 for attempted voluntary manslaughter ( 192, subd. (a), 664) is one year. In all other respects, the judgment is affirmed. Upon remand, the superior court is directed to prepare an amended abstract of judgment that reflects the modification regarding count 3, and that identifies the conviction under count 3 as one for attempted voluntary manslaughter.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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[1] Romero and appellant were tried together. Romero is not a party to this appeal.

[2] All further statutory citations are to the Penal Code, unless otherwise indicated.

[3] The jury found Romero guilty of involuntary manslaughter regarding Dercio and

Rojas, and found the firearm allegations not true.

[4] Our conclusions regarding appellants contentions on issues other than those subject to Sandoval remain as stated in our original opinion(People v. Sandoval (Nov. 14, 2006, B187977) [nonpub. opn.], review granted Feb. 7, 2007, S148917).

[5] Belens last name is sometimes spelled, Dircio, in the record. Salvador Ramirez testified that his own last name was Dircio Ramirez, or alternatively, Dircio. For simplicity, we use Dercio as Belens last name and Ramirez as Salvadors last name.

[6] Appellant also contends that admission of these photographs violated her rights to due process under the California and United States Constitutions. However, she failed to raise an objection on these grounds before the trial court. Accordingly, as our Supreme Court recently explained in People v. Partida (2005) 37 Cal.4th 428, 434-439, appellant may raise only a very narrow due process contention on appeal, namely, that the erroneous admission of the photographs under Evidence Code section 352 rendered her trial fundamentally unfair. Because the trial court made no such error, appellants due process contention fails.