Opinion
G052423
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. JORDY ROMAN MARTINEZ, JUAN CARLOS COVARRUBIAS, and ANDREW GOMEZ SANCHEZ, Defendants and Appellants.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant Jordy Roman Martinez. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Covarrubias. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Andrew Gomez Sanchez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher P. Beesley and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF1746) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed as modified and with directions. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant Jordy Roman Martinez. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Covarrubias. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Andrew Gomez Sanchez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher P. Beesley and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendants Jordy Roman Martinez, Juan Carlos Covarrubias, and Andrew Gomez Sanchez of shooting at an occupied motor vehicle (Pen. Code, § 246; count 4), and of being active participants in a criminal street gang (§ 186.22, subd. (a); count 5). The jury found defendants committed the shooting for the benefit of a criminal street gang (§ 186.22, subd. (b)), and that a firearm was discharged during the commission of that offense (§ 12022.53, subds. (c), (e)(l)). The court sentenced each defendant to prison for 15 years to life.
All statutory references are to the Penal Code unless otherwise stated.
For brevity, we refer to conduct committed "for the benefit of, at the direction of, or in association with any criminal street gang," within the meaning of section 186.22, subdivision (b), as conduct for the benefit of a criminal street gang.
The jury acquitted defendants of conspiracy to commit murder. The jury could not reach agreement on two charges of attempted murder of a police officer, as to which the court declared a mistrial.
On appeal defendants contend the court erred by staying (instead of striking) the firearm enhancement and by miscalculating their presentence custody credits. They further contend that clerical errors in the abstract of judgment must be corrected. Martinez and Covarrubias contend the court deprived them of their constitutional right to present a complete defense by precluding defense counsel from cross-examining the prosecution's gang expert about a rival gang's rumored car. We agree the court miscalculated defendants' presentence custody credits and that their abstracts of judgment must be corrected. In all other respects, we affirm the judgment.
FACTS
Around 3:30 a.m., on June 1, 2012, two uniformed officers in an unmarked dark blue Chevy Impala were patrolling an area claimed by the Anaheim Vatos Locos (AVLS), a criminal street gang. The Impala had tinted windows and red and blue police lights attached to the passenger visor. The officers had been alerted that gang members in the neighborhood might be armed due to heightened tension between AVLS and its rival, Barrio Small Town (BST).
Officer Jared Dewald was driving the Impala at a speed of five to 10 miles per hour. Officer Yesenia Escobar was in the front passenger seat. They circled the neighborhood twice and headed north on Palm Street.
Suddenly, a black Toyota Corolla drove rapidly around a corner, crossed into the Impala's lane, and stopped in front of the Impala, about 30 feet away. The Corolla's headlights were on, making it difficult to see how many people were in the Corolla. Dewald slowly drove five to 10 feet forward.
The Corolla's front passenger door opened and a male Hispanic in a gray shirt got out. He ran toward the Impala, pointing a black semiautomatic handgun at Dewald. Dewald quickly put the car in reverse and accelerated away from the gunman. Both officers heard gunshots. Dewald backed onto another street, which exposed the passenger side of the Impala to the gunman who was still shooting. Dewald turned south on Palm and drove as fast as he could go.
The Corolla pursued and continued to fire at the Impala, with both cars reaching speeds of between 50 to 60 miles per hour in a residential area. Escobar radioed for help and activated the red and blue police lights attached to the passenger visor. The flashing red and blue lights reflected off the freeway sound wall. One of the Corolla's occupants, dressed in dark clothing, sat on the sill of an open rear passenger window and shot at the Impala. Dewald estimated he heard at least 20 gunshots during the whole encounter, while Escobar estimated she heard six or seven.
As the Impala turned onto a major street, Dewald saw black and white police cars approaching with their lights and sirens on. The Corolla made a wide, sweeping U-turn and crashed into a fence.
Three men ran from the Corolla after it crashed. Two officers chased and apprehended the suspects, and later identified them as the defendants.
Defendants were not carrying guns when apprehended, but officers found a black semiautomatic firearm and a stainless steel revolver behind the fence near the Corolla. Inside the revolver, police found five expended shell casings, indicating five bullets had been fired. The magazine in the nine-millimeter semiautomatic handgun was empty. A firearm examiner determined that 5 nine-millimeter shell casings found in the area of the initial shootings had been fired by the nine-millimeter semiautomatic firearm found in the fenced in dirt lot. Two bullet holes were found on the passenger door of the Impala. The firearms examiner also determined that a brass bullet jacket found in the front passenger door frame of the Impala was consistent with those fired from the semiautomatic firearm.
The prosecution's gang expert, Detective Richard Browning, testified that, at the time of the incident, tensions were high between AVLS and BST, and that the two gangs had engaged in back-and-forth violence, including assaults. He opined that on June 1, 2012, all three defendants were members of AVLS, and that a hypothetical shooting like the one in this case would benefit the shooter's gang.
DISCUSSION
The court did not violate Martinez's and Covarrubias's constitutional rights to present a complete defense by precluding the defense from cross-examining Browning about the rumored BST car.
Martinez and Covarrubias contend the court deprived them of their constitutional right to present a complete defense by precluding defense counsel from questioning Detective Browning about information he received that AVLS's rival gang, BST, sometimes drove a car similar to the Impala driven by Dewald on June 1, 2012. They argue this information was relevant to the issue of self-defense (or defense of others). They point out that an element of the crime of shooting at an occupied motor vehicle (as well as of attempted murder and conspiracy to commit murder) is that the defendant did not act in self-defense or in defense of someone else. (CALCRIM No. 965; People v. Rodarte (2014) 223 Cal.App.4th 1158, 1171 [shooting from a motor vehicle].) They further argue a gang expert "may rely on hearsay when forming an opinion, so long as the hearsay is reliable," citing People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved by People v. Sanchez (2016) 63 Cal.4th 665, 686, footnote 13 (Sanchez).
The Attorney General argues Martinez and Covarrubias forfeited the issue by failing to argue below that exclusion of the evidence would deprive them of their constitutional right to present a complete defense. She further argues the court's ruling was correct under Sanchez, supra, 63 Cal.4th at page 686, a decision which postdates defendants' filing of their appellate opening briefs.
In Martinez's reply brief, he counters (and Covarrubias joins the argument), that defendants have not forfeited the constitutional issue because, although defense counsel "did not specifically state he was objecting on federal constitutional grounds, it was clear his objection was based, at least in part, on all three defendants' constitutional right to present a complete defense." He further argues the information about the possible existence of a BST car similar to the unmarked Impala was not case-specific hearsay because the testimony defendants sought to elicit from Browning on cross-examination "would have been used by the defense to show the state [of] mind of the defendants on the night of the shooting."
During the trial, outside the jury's presence, the prosecutor advised the court that prior to trial, he had learned from Browning that "there had been some information floating around the police department that potentially [BST] at one time — unknown when — may have had a similar-looking car to the blue Chevy Impala." The prosecutor had immediately disclosed this information by e-mail to all counsel. Browning did not "have any personal knowledge of that. He doesn't even know exactly where that information came from, much less if it's true or not. He's not aware of any documented incidents where BST, driving a similar-looking blue Chevy Impala, committed any crimes."
The prosecutor then moved "to exclude any questions or testimony about that, given that it's something purely speculative out there." He argued Browning had no personal knowledge of such a car, there was no way to determine the source of the information or its accuracy, and multiple layers of hearsay might be involved. He stated he had disclosed the information to the defense "in case they chose to do any investigation."
Later in the proceedings, outside the jury's presence and prior to Browning's taking the stand, the court gave Sanchez's counsel, Joseph P. Smith, "an opportunity to address the e-mail [he received from the prosecutor] about potentially a car" similar to the officers' Impala.
Smith stated, "We intend to rely on the expert. We're going to explore these issues that he's going to bring up about the gang and the lifestyle and the dangers and all those things because they are incredibly relevant to the defense of my client against the charges and some of the specific intents that are at issue in this case." "And to limit us from exploring an area that is helpful to the defense isn't fair."
The prosecutor countered that the evidence lacked foundation, noting it was unclear whether defendants knew that such a car existed, or that it belonged to a rival gang. He further argued Browning could not testify to defendants' state of mind or whether defendants had knowledge of the rumored BST car.
The court, finding the information was speculative and unreliable hearsay, precluded defense counsel from mentioning the car when cross-examining Browning.
We need not decide whether Smith's objection below was specific enough to preserve the constitutional claim on appeal (People v. Marks (2003) 31 Cal.4th 197, 228) because (1) the court's ruling to exclude the unreliable hearsay was correct under Sanchez, supra, 63 Cal.4th 665; (2) "'[a] defendant does not have a constitutional right to the admission of unreliable hearsay statements'" (People v. Ayala (2000) 23 Cal.4th 225, 269); and (3) the proffered evidence was inadmissible to show defendants' state of mind on the night of the shooting.
We explain each of these three reasons in turn. First, in Sanchez, our Supreme Court held that an expert witness may not testify to case-specific hearsay to explain the basis for his or her opinion, unless the statement is properly proven by independent competent evidence or is properly admitted under an applicable hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 686.) The potential existence of a blue BST car is a "case-specific" fact relating "to the particular events and participants alleged to have been involved in the case being tried" (id. at p. 676), as opposed to an expert's "general knowledge in his field of expertise" (ibid.).
Second, state and federal evidentiary "rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" (U.S. v. Scheffer (1998) 523 U.S. 303, 308.) "'The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.'" (People v. Ayala, supra, 23 Cal.4th at p. 268.)
Finally, the rumor about a BST car similar to the blue Impala was inadmissible to show defendants' state of mind, because defendants failed to meet their burden to show they were aware, on June 1, 2012, of the possibility of such a car. (Evid. Code, § 403, subd. (a).)
In sum, the court did not violate Martinez' and Covarrubias' constitutional rights to present a complete defense. The court properly stayed the section 12022 .53, subdivision (c) firearm enhancement.
Relying on People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield) and the text of section 12022.53, defendants contend the court erred by staying, instead of striking or vacating, the firearm enhancement.
The court sentenced each defendant to a prison term of 15 years to life pursuant to section 186.22, subdivision (b)(4)(B). Under subdivision (b)(4)(B) of section 186.22, a court must sentence a person who commits the felony of shooting at an occupied vehicle (§ 246), for the benefit of a criminal street gang, to 15 years to life in prison. Consequently, pursuant to Brookfield, supra, 47 Cal.4th 583, the court "stayed" each defendant's enhancement for vicarious discharge of a firearm under section 12022.53.
Section 12022.53 applies to certain felonies, including any felony punishable by life imprisonment (§ 12022.53, subd. (a)(17)), which in turn includes any crime punishable by life imprisonment pursuant to the alternative penalty provision of section 186.22, subdivision (b)(4). (People v. Jones (2009) 47 Cal.4th 566, 569, 576.) Under section 12022.53, subdivision (c), any person who, in the commission of a felony listed in subdivision (a) of the statute, personally and intentionally discharges a firearm, shall be punished by an additional and consecutive prison term of 20 years. Furthermore, if a person vicariously discharges a firearm in the commission of such a felony for the benefit of a criminal street gang, he or she is subject to the 20-year enhancement (§ 12022.53, subd. (e)(1)), but the court may not "impose" both a gang enhancement and the section 12022.53, subdivision (e)(1) firearm enhancement (§ 12022.53, subd. (e)(2)). Under subdivision (h) of section 12022.53, "[n]otwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
In People v. Gonzalez (2008) 43 Cal.4th 1118, 1126, our Supreme Court construed the word "impose" in section 12022.53, subdivision (f), which provides: "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment." (Italics added.) Gonzalez interpreted "the words 'impose' and 'imposed,' as used throughout subdivision (f), as shorthand to mean impose and then execute, as opposed to impose and then stay." (Gonzalez, at p. 1126.) Our Supreme Court viewed the words of section 12022.53 "in context" and reached "the construction which best serves to harmonize the statute internally . . . ." (Gonzalez, at p. 1126.) Gonzalez explained that "several examples of the word 'impose' throughout section 12022.53 must be interpreted as shorthand for 'impose and then execute' to make sense." (Id. at p. 1127.) The high court stated, "[W]e reject an interpretation of section 12022.53, [subdivision (f)] that would have the trial court strike, rather than stay, the prohibited firearm enhancements because the rules of statutory construction mandate that we interpret the statute in a manner that does not create unnecessary disharmony between subdivision (f) and subdivision (h) of section 12022.53. In any event, a contrary interpretation 'would disserve the public safety policy that . . . underlies the legislative intent reflected in the statute' [citation], by making it more difficult, if not impossible, to impose and execute the term of imprisonment for an initially prohibited firearm enhancement in the event the section 12022.53 enhancement with the longest term of imprisonment is invalidated on appeal." (Id. at pp. 1127-1128.) "It [is] apparent that section 12022.53 was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, rather than strike, prohibited enhancements under section 12022.53." (Id. at p. 1129.) "[S]taying rather than striking the prohibited firearm enhancements serves the legislative goals of section 12022.53 . . . by making 'the trial court's intention clear — it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under . . . section 1385." (Id. at p. 1129.)
In People v. Sinclair (2008) 166 Cal.App.4th 848, the Court of Appeal concluded "that subdivision (e)(2) of section 12022.53 authorized — but did not oblige — the trial court to impose and stay the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). Subdivision (e)(2) [of section 12022.53] provides that such [gang] enhancements 'shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.' (Italics added.) Because the jury made no finding that appellant personally used a gun . . . , we must interpret the language italicized above, with an eye to harmonizing section 12022.53 internally and facilitating legislative intent [citation]. As the italicized language is similar to that interpreted in Gonzalez, subdivision (e)(2) of section 12022.53 authorized the trial court to impose and stay the gang enhancement . . . ." (Sinclair, at p. 854.)
Almost a year later, our Supreme Court issued Brookfield, supra, 47 Cal.4th 583. Brookfield never addressed the meaning of the word "impose" in section 12022.53. Nor did it mention whether a section 12022.53 enhancement should be stayed, as opposed to stricken. Rather, Brookfield construed section 12022.53, subdivision (e)(2)'s mandate that a court shall not impose both an enhancement thereunder and a gang "enhancement" on a person who vicariously used or discharged a firearm. (Brookfield, at p. 586.) In Brookfield, the Attorney General argued that a life term under section 186.22, subdivision (b)(4) is not a sentence "enhancement" in the sense of an additional prison term, but is instead an "alternate penalty," and consequently the court could impose both the section 186.22, subdivision (b)(4) life sentence and the section 12022.53, subdivision (e)(2) vicarious discharge of firearm enhancement. (Brookfield, at pp. 591-592.) Our Supreme Court rejected this "narrow, technical" definition of "'enhancement'" (id. at p. 594): "[T]he word 'enhancement' in section 12022.53[, subdivision (e)(2)] refers to both the sentence enhancements in section 186.22 and the penalty provisions in that statute. Thus, that provision barred the trial court here from imposing both the penalty of a life term under section 186.22[, subdivision (b)(4)] and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53." (Id. at p. 595.) "In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53's subdivision (j), choose the provision that will result in a greater sentence." (Id. at p. 596.) Consequently, Brookfield held, "The trial court erred in sentencing defendant to both the life term under section 186.22[, subdivision (b)(4)] and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53. The Court of Appeal was correct in ordering the 10-year sentence enhancement stricken, but it was incorrect in its reason for doing so [citation]: that defendant had not committed a 'felony punishable by . . . imprisonment in the state prison for life' [citation]. Because the Court of Appeal's disposition was correct, we affirm its judgment." (Id. at p. 597.)
Thus, Brookfield stated that the appellate court correctly ordered the section 12022.53, subdivision (e)(2) enhancement "stricken." (Brookfield, supra, 47 Cal.4th at p. 597.) But Brookfield does not mention Gonzalez, much less explain the inconsistency between the two opinions as to whether a section 12022.53 enhancement should be stricken or stayed. Instead, Brookfield appears to have simply used the word "stricken" because the appellate court there directed the trial court to "vacate" the defendant's firearm enhancement. (Brookfield, at p. 588.) "[C]ases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Given the specificity of Gonzalez on the exact issue before us — i.e., whether a prohibition stated in section 12022.53 on imposing an enhancement requires the sentencing court to strike the enhancement, or to impose and stay it — compared to a brief mention in Brookfield that is arguably dictum, we hold the trial court properly imposed and stayed the firearm enhancements in this case. Each defendant is entitled to one additional day of presentence custody credit.
All parties agree that the court erroneously calculated defendants' actual days in custody. The court awarded defendants 1,344 days of custody credit, comprised of 1,169 actual custody plus 175 days of conduct credit. Defendants, however, were arrested on the date of the shooting, i.e., June 1, 2012, and remained in custody until they were sentenced on August 14, 2015, resulting in a total of 1,170 days of actual custody. Accordingly, each defendant is entitled to one additional day of custody credit. This error must be corrected. (People v. Gisbert (2012) 205 Cal.App.4th 277, 282 [a court has jurisdiction at any time to correct error in calculating presentence custody credits].) Defendants' abstracts of judgment must be corrected in other aspects as well.
Covarrubias's and Martinez's abstracts of judgment incorrectly state they were convicted of shooting at an inhabited dwelling, rather than shooting at an occupied motor vehicle. Covarrubias's abstract of judgment left blank the box in section 3 for the statute supporting his stayed gun enhancement, and the box in section 15 for the date his sentence was pronounced. Martinez's and Sanchez's abstracts of judgment left unchecked the box in section 15 for the statute pursuant to which their conduct credits were awarded, and left blank the boxes in section 3 where the statute supporting the stayed gun enhancement should be recorded, as well as the notation "S" for the enhancement's stayed status.
The court has the power to correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct the trial court to correct defendants' abstracts of judgment to accurately reflect the court's intended judgment.
DISPOSITION
The judgment is modified to grant each defendant a total of 1,345 days of presentence custody credit, comprised of 1,170 actual custody days plus 175 conduct credit days.
The trial court is directed to prepare amended abstracts of judgment as follows. The amended abstract of judgment for each defendant shall reflect 1,345 days of presentence custody credit, comprised of 1,170 actual custody days plus 175 conduct credit days. Covarrubias's and Martinez's amended abstracts of judgment shall describe their count 4 convictions as shooting at an "occupied motor vehicle." Covarrubias's amended abstract of judgment shall reflect (1) he was sentenced on August 14, 2015, and (2) the statute for his stayed gun enhancement is section 12022.53, subdivisions (c) and (e)(1). Martinez's and Sanchez's amended abstracts of judgment shall reflect (1) their conduct credits were awarded pursuant to section 2933.1, and (2) an enhancement under section 12022.53, subdivisions (c) and (e)(1), was imposed and stayed against each of them.
The trial court is directed to forward a certified copy of each defendant's amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.