Filed 3/28/18 P. v. Ruiz CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN JORDAN RUIZ,

Defendant and Appellant.

F073686

(Super. Ct. No. CRM022497B)


OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant, John Jordan Ruiz, was born in 1996. In 2011, at the age of 14 years, eight months, Ruiz participated in the shootings of multiple individuals during two separate incidents. He was prosecuted as an adult and convicted on three counts of attempted premeditated murder, two counts of active participation in a criminal street gang, and one count of conspiracy to commit murder. The trial court imposed an aggregate prison sentence of 120 years to life, but Ruiz will be eligible for parole during his 25th year of incarceration under the provisions of Penal Code section 3051 (all further statutory references are to the Penal Code).
The trial evidence firmly established that Ruiz was responsible for both shootings. His only evidentiary challenge on appeal pertains to the conspiracy conviction, which, incidentally, had no meaningful impact on his prison sentence. The conspiracy charge was indeed the weakest aspect of the People’s case, but we conclude the verdict was supported by substantial evidence.
Ruiz makes additional claims concerning presentence conduct credits and the need to document information that may be relevant to future youth offender parole hearings under section 3051. Both of those issues are conceded by the People. Ruiz also argues for retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57). The recent decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) resolves the Proposition 57 issue in his favor. Pursuant to Lara, we conditionally reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Ruiz was charged by information with attempted premeditated murder (§§ 187, 189, 664; counts 1, 2, & 4); active participation in a criminal street gang (§ 186.22, subd. (a); counts 3 & 5); and conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 6). There were enhancement allegations of gang-related conduct (§ 186.22, subd. (b)(1)(C); counts 1, 2, & 4) and personal use of a firearm with proximate causation of great bodily injury (§ 12022.53, subds. (d); counts 1, 2, 4, & 6). The case was tried before a jury. Viewed in the light most favorable to the judgment, the trial evidence established the following facts.
There is a criminal street gang known as the Nortenos that is active in Merced County and other regions of California. The gang identifies with the color red, and its primary activities include illegal narcotics trafficking and gun violence. The Nortenos are enemies of a gang called the Surenos, which identifies with the color blue. Members of these rival groups frequently commit acts of violence against each other.
In early 2011, the California Department of Justice (DOJ) conducted an investigation into the activities of Norteno gang members in Los Banos and other parts of Merced County. “Operation Red Zone,” as it was dubbed by participating agents, involved undercover surveillance and the wiretapping of phones used by certain individuals, including Gonzalo Esquivel, Kenneth Hernandez, and appellant Ruiz. Esquivel, then age 30, was a “high-ranking member” of the Nortenos and controlled the gang’s distribution of narcotics in and through the cities of Livingston, Los Banos, and Merced. Hernandez was one of Esquivel’s top lieutenants. As explained by one of the DOJ agents, Hernandez, then age 28, “was Gonzalo Esquivel’s number two in Los Banos. He was in charge of – he was pretty much Gonzalo’s main narcotics distributor in Los Banos, and then he also had a bunch of younger [Nortenos] that reported to him and would go out and do shootings.” Ruiz was “a lower-level gang member” who sold cocaine and other drugs in and around Los Banos.
On April 9, 2011, A.E. (victim #1) and P.P. (victim #2) were shot while walking along D Street in Los Banos. Victim #1 was a Norteno associate with extensive family connections to the gang, but she happened to be wearing a blue windbreaker that evening. Apparently mistaken for a Sureno, she was struck by two bullets in the hip and stomach. Victim #2 was a former Sureno, i.e., a “dropout,” who still had a penchant for blue clothing. He wore a blue shirt on the night in question, and consequently suffered a gunshot wound to the hand.
Although the victims were acquainted, their physical proximity to one another at the time of the shooting was coincidental. Victim #1 had just parted ways with her mother to go visit someone in a nearby apartment, and victim #2 lived in that apartment complex. They were shot while heading toward the building at the same time.
Victim #1 saw Ruiz shoot at her and later identified him in court as the perpetrator. She recognized him from having “hung out with the same circle of people,” i.e., mutual Norteno acquaintances. She further testified that Ruiz fled the scene in a red Jeep Wrangler driven by Kenneth Hernandez. Hernandez was a former classmate whom she had known for many years.
Victim #1 and her mother both saw the red Jeep circling through the area immediately prior to the shooting. The mother described how it had driven “around the corner … three to four times” at a normal speed and then rapidly accelerated after the shots were fired. There were four people inside of the vehicle, but she could not identify them. A third eyewitness also testified to having seen the shooter flee in a red Jeep.
Undercover officers had seen Hernandez driving a red Jeep during the week of the shooting and had written down the license plate number. The vehicle was traced back to a rental car company. Business records and testimony from a company employee confirmed that Hernandez was a frequent customer and had rented a white sedan in Los Banos on April 4, 2011. He later exchanged the sedan for a red Jeep Wrangler, which he returned to the company’s branch location in Madera on April 10, 2011, the day after the shooting. The Jeep was impounded and searched for evidence, which led to the discovery of Hernandez’s and Ruiz’s fingerprints on the interior and exterior of the vehicle.
As documented on the DOJ wiretap recordings, Hernandez later talked to Esquivel and others about what happened on D Street and confirmed that Ruiz was the shooter. The incident caused internal discord among various gang members after the relatives of victim #1 learned of what he had done. Hernandez lamented to Esquivel that Ruiz had been bragging about it and acting like a “macho man.”
The charges in counts 1, 2, 3, and 6 were based on the facts summarized above. On April 10, 2011, a third victim was shot in the face while socializing with relatives outside of a residence in Los Banos. Ruiz claimed responsibility for that shooting during a recorded telephone call with Esquivel. This incident formed the basis for counts 4 and 5, and it is not relevant to the issues raised on appeal.
Ruiz was convicted on all counts and the enhancement allegations were found to be true. He was sentenced to consecutive prison terms of 40 years to life for the attempted murder convictions, i.e., 15 to life for each offense plus 25 to life for each firearm enhancement, resulting in a total term of 120 years to life. Punishment for active participation in a criminal street gang, conspiracy to commit murder, and the gang enhancements was stayed pursuant to section 654.
DISCUSSION
Sufficiency of the Evidence (Count 6)
Ruiz seeks reversal of the conspiracy conviction on grounds that there was no evidence of an unlawful agreement between him, Kenneth Hernandez, and/or any other unidentified co-conspirators. He further complains that two of the three “overt acts” upon which the People relied to prove the charge were immaterial. For the reasons that follow, we reject the claim.
Standard of Review
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
Law and Analysis
“The crime of conspiracy is defined … as ‘two or more persons conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance thereof.” (People v. Swain (1996) 12 Cal.4th 593, 600, quoting §§ 182, subd. (a)(1), 184.) “The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole.” (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 57-58.) Put differently, “direct evidence is not required to prove a common unlawful design and agreement to work toward a common purpose; the existence of a conspiracy may be inferred as well from circumstantial evidence.” (People v. Buckman (1960) 186 Cal.App.2d 38, 46-47.) Moreover, “[c]ircumstantial evidence often is the only means to prove conspiracy.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999.)
Ruiz submits that there is “no evidence that [he] ever talked with anyone before the incident about murdering anyone or that any such agreement was ever reached.” In essence, he argues the trial evidence was open to interpretation. For example, it is possible that Ruiz asked to be let out of the car without making Hernandez aware of his intentions to shoot at victims #1 and #2, and that Hernandez was merely an accessory after the fact. However, “ ‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The People’s gang expert testified that Nortenos oftentimes use stolen or rented cars when engaging in gun violence to minimize the risk of being identified in connection with such crimes. Witness testimony and the wiretap recordings showed that Hernandez rented and drove the vehicle that was used in the subject incident, and that he had also facilitated the transfer of firearms between different gang members during the relevant time period. It was apparent from various recordings that Ruiz, then age 14, did not personally own a firearm. Therefore, he would have needed someone else to provide him with a gun and transportation in order to carry out the attack on victims #1 and #2. The fact that Hernandez drove the Jeep around the block several times before the shooting occurred can reasonably be interpreted as reconnoitering, thus indicating his advance knowledge of, and complicity in, Ruiz’s plan to shoot and kill rival gang members.
It is a close issue, but we are satisfied that a reasonable juror, considering the evidence as a whole, could have been convinced beyond a reasonable doubt that Hernandez and Ruiz entered into an unlawful agreement to commit the target offense of attempted murder. The jury also permissibly found that two overt acts were committed in furtherance of their agreement: Hernandez drove Ruiz to the scene of the crime and Ruiz shot at the victims. Therefore, all elements of the offense were satisfied.
Sentencing Issues
Denial of Presentence Conduct Credits
A defendant is entitled to credit against his or her sentence for all days spent in custody while awaiting trial and sentencing, up to and including the date when his or her sentence is imposed. (§ 2900.5, subd. (a); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Section 4019 provides for additional presentence credits based on worktime and good behavior, collectively referred to as “conduct credit,” and specifies the rate at which such credit can be earned. (§ 4019, subds. (a), (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Section 2933.1 limits the availability of conduct credit to 15 percent of the actual period of confinement if the defendant is convicted of a violent felony, e.g., attempted murder. (§§ 2933.1, subds. (a) & (c); 667.5, subds. (c)(12).)
The trial court below did not award any presentence conduct credits. Ruiz contends that he is entitled to 214 days of conduct credit, which translates to 15 percent of his 1,429 days in custody while awaiting trial and sentencing. The People concede that Ruiz may be entitled to conduct credits, but argue that such entitlement is a factual issue, which cannot be determined from the record on appeal. We agree and will therefore remand for further proceedings.
Findings Relevant to Section 3051
Section 3051 provides, in pertinent part, that a defendant convicted of a felony committed before his or her 25th birthday, when the sentence for the offense is a life term of 25 years to life, will become eligible for parole during their 25th year of incarceration. (§ 3051, subd. (b)(3).) The legislative intent behind section 3051 “ ‘is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity ….’ ” (In re Trejo (2017) 10 Cal.App.5th 972, 980.) Accordingly, section 3051 requires the Board of Parole Hearings (Board) to conduct a “youth offender parole hearing” that provides “a meaningful opportunity to obtain release” and, among other things, assesses the offender’s “growth and maturity.” (§ 3051, subds. (d), (e), (f)(1).) The Board must “give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)
In People v. Franklin (2016) 63 Cal.4th 261 (Franklin), the California Supreme Court noted that sections 3051 and 4801 “contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration.” (Franklin, supra, 63 Cal.4th at p. 283.) The high court further observed that documenting such information “is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.” (Id. at pp. 283-284.)
Ruiz contends that the trial court erred by failing to make a complete record of all potentially applicable facts and circumstances relevant to future youth offender parole proceedings. The People point out that in Franklin it was “not clear whether [the defendant] had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) The same is true here. Therefore, the appropriate remedy is to “remand the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Ibid.)
If, on remand, the trial court determines that Ruiz did not have a sufficient opportunity to memorialize all relevant youth-related factors, “then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Ruiz] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates [Ruiz’s] culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Franklin, supra, 63 Cal.4th at p. 284.)
Proposition 57
As noted, Ruiz was 14 years old when he committed the underlying offenses. He was prosecuted as an adult pursuant to former Welfare and Institutions Code section 707, subdivision (d), which gave prosecutors discretion under specified circumstances to file charges against a minor directly in a court of criminal jurisdiction, “a practice known as ‘direct filing’ or ‘discretionary direct filing.’ ” (People v. Cervantes (2017) 9 Cal.App.5th 569, 596, partially disapproved of in Lara, supra, 4 Cal.5th at pp. 314-315 (Cervantes).) Proposition 57, enacted by the electorate in November 2016, abolished the direct filing procedure.
“While prosecuting attorneys may move to transfer certain categories of cases to criminal court (Welf. & Inst. Code, § 707, subd. (a)(1)), they [no longer have] authority to directly and independently file a criminal complaint against someone who broke the law as a juvenile, even by committing the crimes that previously qualified for mandatory direct filing. In cases where transfer to adult court is authorized …, the juvenile court now has sole authority to determine whether the minor should be transferred. [Citations.] Thus, Proposition 57 effectively guarantees a juvenile accused felon a right to a fitness hearing before he or she may be sent to the criminal division for prosecution as an adult.” (Cervantes, supra, 9 Cal.App.5th at pp. 596-597, fn. omitted.)
In supplemental briefing, the parties raise the issue of whether the provisions of Proposition 57 that prohibit direct filing of criminal charges against juveniles can be applied retroactively. The California Supreme Court’s recent decision in Lara, supra, answers that question in the affirmative. Citing the reasoning articulated in In re Estrada (1965) 63 Cal.2d 740, the Lara opinion holds that while Proposition 57 does not mitigate punishment for any particular crime, it does confer potential benefits to a class of persons, i.e., juveniles, and constitutes an “ ‘ameliorative change[] to the criminal law’ that … the legislative body intended ‘to extend as broadly as possible.’ ” (Lara, supra, 4 Cal.5th at pp. 303-304, 308-309.) In short, Proposition 57 applies retroactively “to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Id. at p. 304.)
Since Ruiz’s judgment of conviction is not yet final, his Proposition 57 claim is well taken. In terms of the relief to which he is entitled, the Lara opinion tacitly endorses a remand procedure described by the Fourth District Court of Appeal in People v. Vela (2017) 11 Cal.App.5th 68 (Vela). (Lara, supra, 4 Cal.5th at pp. 310, 313 [“we believe remedies like those provided in Vela … are readily understandable, and the courts involved can implement them without undue difficulty.”].) Accordingly, Ruiz’s convictions and sentence will be conditionally reversed, and the matter will be remanded for the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, supra, 4 Cal.5th at p. 310.)
“ ‘When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [the] cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [the defendant] to a court of criminal jurisdiction because he is “not a fit and proper subject to be dealt with under the juvenile court law,” then [his] convictions … are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [him] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate “disposition” within its discretion.’ ” (Lara, supra, 4 Cal.5th at p. 310, quoting Vela, supra, 11 Cal.App.5th at p. 82.)
DISPOSITION
The judgment is conditionally reversed pending further proceedings in accordance with Proposition 57. We remand the cause to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare & Institutions Code section 707, as discussed in this opinion. If, at the transfer hearing, the juvenile court determines that it would not have transferred Ruiz to a court of criminal jurisdiction, then Ruiz’s criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing.
If, at the transfer hearing, the juvenile court determines that it would have transferred Ruiz to a court of criminal jurisdiction, then the judgment shall be reinstated as of that date. The criminal court is then to conduct additional hearings. As discussed herein, the criminal court must determine whether Ruiz is entitled to presentence conduct credits and should state the basis for its conclusion on the record. If the court finds he is entitled to such credits, his sentence shall be modified accordingly; an amended abstract of judgment shall be prepared to reflect the modification; and a certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. In addition, the criminal court must determine whether Ruiz was afforded an adequate opportunity to make a record of information that will be relevant to any future youth
 
offender parole hearings under Penal Code sections 3051 and 4801. If the court determines that Ruiz did not have a sufficient opportunity to document all relevant youth-related factors, it shall conduct further proceedings consistent with this opinion.



HILL, P.J.
WE CONCUR:



PEÑA, J.



SMITH, J.