P. v. Bursiaga

Filed 10/26/07 P. v. Bursiaga CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Thomas Cesar Bursiaga of first degree murder (Pen. Code, 187, subd. (a); 189)^[1]and found true the special circumstance allegation that he discharged a firearm from a motor vehicle with intent to inflict death ( 190.2, subd. (a)(21)). The jury also found true allegations that defendant intentionally and personally discharged a firearm and killed the victim ( 12022.53, subd. (d)), and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)). Defendant was sentenced to state prison for life without possibility of parole plus a consecutive term of 25 years to life for the firearm discharge enhancement. The gang enhancement was stayed. Among the fines and fees imposed was a $10,000 restitution fine suspended unless parole is revoked.

On appeal, defendant contends (1) his mistrial motions were erroneously denied, (2) the firearm discharge enhancement must be stricken because it is effectively a lesser included offense of the special circumstance of murder by discharging a firearm from a motor vehicle with intent to inflict death, and (3) the suspended restitution fine must be stricken; the Attorney General concedes this last point. We modify the judgment as to the latter point and otherwise affirm.

FACTS

Prosecution case-in-chief

On May 1, 2005, at around 1:25 a.m., victim Victor Mares stopped for gasoline at a mini-market in Sacramento County. He was traveling with two other men and two women. At least one of the mens clothing and appearance suggested his affiliation with a south area street gang.

While Mares and his companions were stopped at gas pumps, defendant drove into the parking area in a white Jeep Cherokee with a black fender. He passed the Mares group, made a U-turn, and pulled up alongside them. Defendant stared at Mares and one of his companions. Defendant nodded, and the companion nodded back. Shortly thereafter, defendant fired a gun and hit Mares. Mares walked toward the drivers seat of his car and then collapsed with a mortal bullet wound in his chest.

As defendant drove out of the parking lot, he passed surveillance cameras at the mini-market. The cameras recorded a white two-door Jeep. A customer of the mini-market noticed the black fender and observed that one wheel rim was a different color than the others.

A spent .380 caliber bullet casing was recovered near Maress car. The words WIN 380 auto were stamped on the casing. It was the right size to fit the projectile recovered from Maress chest.

The image of the Jeep from the surveillance video was disseminated in a press release. On the night of the shooting, officers were directed to the residence of defendant and his mother, about 10 miles from the murder scene. On two occasions during the night, the officers drove past the residence and observed the back end of a pickup truck parked in the driveway. Early the next morning, the officers drove by in daylight and saw a Jeep Cherokee parked deeper in the driveway in front of the pickup truck. The black fender described by the witness and seen in the surveillance video had been spray painted white, but the black showed through and, in some places, had not been covered. There was white over-spray on the tire and hood and the paint smelled fresh. The paint on the rest of the Jeep was conventional and in good shape. There was an overpowering odor of bleach inside the Jeep and wipe marks on the interior.

The Jeep was later processed for gunshot residue at several places in the drivers area. It was determined that a firearm had been fired from inside the Jeep or immediately adjacent to it, or that a person with gunshot residue on his or her hand had transferred the residue to the Jeeps interior. Wiping down the interior of a vehicle with bleach would be a good way to remove any possible gunshot residue.

A search of defendants residence yielded the Jeeps front license plate, a traffic citation issued to defendant while driving a 1999 Jeep Cherokee, red clothing and shoes, and various written references to northern gang affiliation, the letter N, the number 14 (N being the 14th letter of the alphabet), and killing Sureos. There were also red shirts of the type sold to pay for the funeral of defendants Norteo cousin, Anthony Espinosa, who had been killed in a drive-by shooting, possibly by a member of the Sureos gang. Shirts in a closet bore captions such as Oak Park Thugs.

A trash can in the laundry room contained a piece of plastic with white spray paint on it and the smell of fresh paint. A rag and spray bottle smelling of bleach were found under the kitchen sink. A live .380 caliber bullet with the designation WIN .380 auto was found on top of the refrigerator.

Between May and November 2005, officers searched unsuccessfully for defendant by following various supposed leads provided by his girlfriend, Alina Azios. She never indicated that he was residing with her. One afternoon in late November, several officers came to Azioss home unannounced. The home was equipped with video surveillance of the front porch. Azios answered the door and told officers that defendant was not there. Officers at the rear of the house saw defendant, shirtless and shoeless, running across a neighboring yard. A police dog located defendant hiding in a neighbors trash can.

Defendant had admitted to a probation officer in 2000, and to a Sacramento police officer in 2003, that he was an Oak Park Norteo. A gang expert opined that defendant was an active gang member at the time of Maress murder. The expert opined that Maress murder was a profile killing intended as revenge for the drive-by murder of defendants cousin, Anthony Espinosa, in Sureo territory approximately six weeks previous. Maress murder was committed to benefit the Norteos because it would restore respect to the gang.

Defense

The defense presented the testimony of an eyewitness identification expert who testified about factors that could diminish eyewitness accuracy, such as stressful situations, discussion of the event by multiple witnesses prior to arrival of police and the presence of a gun. The expert opined that if a witness identifies a person in a photo display, he or she would be more likely to later identify the same person in court.

DISCUSSION

I

Defendant contends the trial court erred prejudicially by denying his motions for mistrial. He argues that two witnesses made references that prejudiced him, and that the explanation and instruction given to the jury were insufficient to ameliorate the potential prejudice. We are not persuaded.

Background: C-CAT

The prosecutor questioned a homicide detective about efforts to locate defendant during the almost seven months between the May 1, 2005, murder and his November 28, 2005, arrest. The detective indicated they talked to defendants girlfriend on several occasions and followed up without success on information she had given them. This exchange followed:

Q [BY THE PROSECUTOR:] Aside from you, are you personally aware of other officers or other units within your department making efforts to locate [defendant]?

A Yes.

Q And what other units were there?

A The C-CAT unit, which is the career criminal apprehension team.

Q They call it -- that team is tasked to find people who are wanted for offenses like murder, correct?

A Correct.

After defense counsel asked to approach and a bench conference was held, the prosecutor further clarified:

Q [BY THE PROSECUTOR:] Detective, I want to be clear. Task force that searches for people wanted for offenses such as homicide, thats just what its called, correct?

A Yes, thats the name. [] . . . []

Q Its not some sort of designation that has anything to do with the person they are looking for?

A Doesnt have to do with the offense. Just a unit. Its a multi-jurisdictional unit tasked with finding people.

Defendants trial counsel later asked for a mistrial based on the detectives testimony, on the ground that career criminal connotes a life of crime, certainly more than just one offense. The trial court denied the motion, explaining that the two rounds of follow-up questions made it crystal clear that there is no requirement that the person [the team is] chasing fit into a certain status. The court noted there was no evidence at all before this jury that suggests that [defendant] has a career criminal record or any record of any sort.

When another detective later testified, the prosecutor avoided any use of the objectionable term by asking whether he had been assigned to essentially a fugitive location team. When asked the names of persons who had accompanied him to Azioss house on the date of the arrest, the detective responded with both the names and agencies of the men who accompanied him. The agencies included the Sacramento Police Department, the United States Marshals Office, the Department of Corrections and the FBI. The prosecutor asked, and the detective confirmed, that [a]ll these people are just assigned to this task force from different agencies and that [i]t has nothing to do with the person you are looking for, thats just who is on the task force . . . .

When a Department of Corrections special agent later testified, the prosecutor asked if he had been assigned to a multi-agency task force that was assigned to locate fugitives that were wanted. It was clarified that he worked with agents from the Sacramento Police Department and the FBI. The prosecutor asked a Sacramento police officer if he was assigned to a warrant fugitive task force.

Background: Probation Officer

Sacramento Police Detective Christopher Mouzis testified as an expert on criminal street gangs. He explained that he got together monthly with officers from a number of surrounding agencies to discuss things that were going on in the various jurisdictions and trends that they saw developing. He also testified that he had talked to hundreds of gang members, both in custodial settings and on the streets.

Toward the end of the court day, Mouzis testified that he was aware of two instances in which defendant admitted his gang membership to police officers. This exchange followed:

Q [BY THE PROSECUTOR:] When in time was the first incident?

A 2000.

Q And that was to whom?

A To a probation officer.

Q Okay. Probation officer. And what gang did he admit?

[BY DEFENSE COUNSEL:] Your Honor, I will make some remarks at the break.

THE COURT: All right.

Q [BY THE PROSECUTOR:] What gang did he admit being a member of at that point in time?

A Oak Park Norteos.

Q And he had a later police contact?

A Yes.

Q That was in 2003?

A Yes.

Q And he admitted to being a Norteo to a Sacramento Police officer, correct?

A Yes.

Shortly after this exchange, the jury was sent home for the evening. Thereafter defense counsel objected to the reference of probation officer because it presupposes the idea [defendant has] been convicted of something and under some type of court supervision. Arguing the statement was unduly inflammatory and prejudicial, defense counsel made another request for a mistrial.

The trial court denied the request, ruling the comment was not so inflammatory or prejudicial as to prevent the jurors from evaluating the evidence fairly. The court explained, [t]he fact that the statement was made to a probation officer does not necessarily imply that this particular defendant had a probation officer. There was no reference to his probation officer. (Italics added.) The court agreed to give an admonishment to be agreed upon by the parties.

Upon returning to court the next morning, defense counsel decided against an admonition. He told the court the natural flow of events that happened at the end of the day has produced enough of a break so the admonishment which might happen during -- as testimony arose will now at this point have the effect of excessively emphasizing the use of the one sentence. Counsel added, I do note that we took a break at a natural time. I dont feel that anything was done to cause the situation to be what it is, but at this point I think admonishment would only reraise the issue in the jurys eyes.

Defense counsel then renewed his request for a mistrial, based upon the cumulative effect of the references to the probation officer and the career criminal apprehension team. The motion was again denied. The court offered to add a line to a jury instruction, reminding the jurors there was no evidence that defendant had a criminal history.

At defense counsels request, the trial court instructed the jurors: During the trial of this case you may have heard testimony that different law enforcement agencies were involved. It is common for law enforcement agencies to work together. You have heard no evidence as to any reason why a certain law enforcement agency was or was not involved in this case. Do not attach any significance to any testimony regarding which particular agency or agencies may or may not have been involved in this case.

Analysis

A motion for mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. [Citation.] We review a ruling denying a motion for mistrial for abuse of discretion. [Citation.] (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1029.)

Defendant claims the references to the career criminal apprehension team and a probation officer both strongly impl[ied] that he had a criminal history.

The Attorney General counters that the care that was taken to clarify the nature of the multi-agency task force and to refer to it with a neutral descriptive title to several subsequent witnesses completely cured any possible prejudice from the C-CAT incident. We agree.

Defendant had successfully evaded apprehension on a charge of murder, and the jurors were advised that C-CAT was a multi-agency task force used to apprehend fugitives suspected of serious crimes like murder. The evidence made plain that the name of the task force had nothing to do with particular persons the task force pursues. The evidence did not imply that defendant himself had a criminal history.^[2] The evidence did not damage defendants chances of receiving a fair trial; a fortiori, it did not do so irreparably. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1029.)

The information that defendant had revealed his gang membership to a probation officer followed testimony about multi-agency teams and information-sharing among jurisdictions. The jury could only speculate whether the probation officer to whom defendant had spoken was acting as part of such a multi-agency team or as defendants own supervising probation officer. Thus, no reasonable juror could conclude from the brief and isolated reference that defendant had suffered a prior conviction and had been supervised on probation. (Compare People v. Valdez (2004) 32 Cal.4th 73, 128; People v. Bolden (2002) 29 Cal.4th 515, 554-555.)

Finally, we reject defendants claim that the C-CAT and probation officer testimony created cumulative prejudice. (Citing People v. Hill (1998) 17 Cal.4th 800, 844-845.) As noted, the reference to career criminal was effectively neutralized and the adverse inference feared by defendant was improbable at best. The reference to a probation officer was fleeting and the adverse inference feared by defendant was entirely speculative. Whether viewed separately or in combination, the references did not irreparably damage defendants chances of receiving a fair trial. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1029.) His mistrial motions were properly denied.

II

Defendant contends the 25-years-to-life term for the firearm enhancement ( 12022.53, subd. (d)) must be stricken because it is effectively a lesser included offense of the special circumstance of murder by discharging a firearm from a motor vehicle with intent to inflict death ( 190.2, subd. (a)(21)).

After briefing in this case was completed, the California Supreme Court decided People v. Sloan (2007) 42 Cal.4th 110 and People v. Izaguirre (2007) 42 Cal.4th 126.) Following the lead case of Sloan, Izaguirre rejected the specific contention that defendant makes here. (People v. Izaguirre, supra, at pp. 130, 132-134.) For the reasons stated in those cases, we reject defendants argument.

III

Defendant contends, and the Attorney General concedes, the suspended section 1202.45 restitution fine must be stricken because the fine cannot be imposed where, as here, the underlying sentence does not include the possibility of parole. We accept the Attorney Generals concession. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)

DISPOSITION

The judgment is modified by striking the section 1202.45 restitution fine. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of

judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] Further statutory references are to the Penal Code.

^[2] It is not reasonably probable that the jurors misused the
C-CAT evidence to deduce that defendant had a criminal history. Such a deduction would have required the jurors to indulge an absurdity: that if defendant had been at large and suspected of murder, but had no criminal history, the law enforcement task force would not have wanted or pursued him.