Opinion
B299690
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANGEL DANIEL, Defendant and Appellant.
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael Keller and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No.NA095596) APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed as modified. Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael Keller and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Daniel Angel Daniel of murder and attempted murder. Although the offenses were committed in 1990, Daniel was not charged until 2013. He contends the delayed prosecution violated his state and federal constitutional rights to due process, the evidence was insufficient to support his attempted murder conviction, and the imposition of the restitution and parole revocation fines violated the prohibition against ex post facto laws. We reduce the restitution fine and strike the parole revocation fine, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. A gang-related shooting occurs on August 11, 1990
Sixteen-year-old Angel R. and 13-year-old Jose D. belonged to the Barrio Small Town (BST) gang in Long Beach. The BST gang and Eastside Longo gang were rivals. On the night of August 11, 1990, Angel and Jose heard that some Eastside Longo gang members were visiting apartments in BST territory. The youths decided to walk to the apartments. Upon arrival, they saw several individuals inside the gated garage below the apartments. Angel and Jose announced their BST gang affiliation, ran across the street, and threw some bottles. The individuals yelled back and ran upstairs to the apartments. Angel and Jose began walking away together. When they reached a nearby alley, Angel heard gunshots. Jose ran ahead, and Angel ran into the alley. Angel circled back on foot and found Jose lying on the ground. He stayed with Jose until police arrived. Angel denied being armed or firing a gun that night.
b. The police investigation goes cold in December 1990
Jose died from a gunshot wound to his back. A nine-millimeter bullet was recovered from his body. Nine-millimeter bullets can be used in cartridges for a .357 or .38-caliber gun. As of December 28, 1990, no suspects had been identified to police, and the investigation went cold.
c. Daniel is present in the Los Angeles area following the shooting, but he later absconds from probation and is identified as a potential suspect; evidence from the shooting is destroyed
Following Jose's murder, Daniel was convicted of felony offenses in Los Angeles County, which indicated he was still in the area: On September 18, 1990, Daniel was found guilty of carrying a loaded firearm, a .38-caliber gun. On February 25, 1991, Daniel was convicted of possession for sale of cocaine and placed on probation.
Between January 1992 and April 1994, Daniel was arrested for probation violations and new offenses in Los Angeles and Orange Counties. On September 28, 1994, he failed to appear in court on a probation violation in his 1991 cocaine possession case. A bench warrant was issued for his arrest.
In September 1994, Mary Ann Lewis, a former resident of the apartments where the shooting occurred, and her daughter, Angelica Mitchell, offered information to police about the shooting suspect in exchange for the release from custody of Lewis's son, Lewis's boyfriend, and Mitchell's boyfriend. Police rejected the offer.
Mitchell died prior to trial.
In October 1994, Lewis again contacted police, said she saw the shooting, and identified Daniel, an Eastside Longo gang member, as the shooter. According to Lewis, the victim of the shooting was a BST gang member. The victim and his companion stood outside the apartments and "call[ed] out another person inside the apartment." Daniel, who was inside the parking garage, yelled for a gun. A "biker" dropped a gun to him from an apartment. Lewis reported that she saw Daniel "go after the victim and shoot." Daniel crossed the street, and fired the gun.
At trial, Lewis testified she first heard shouting and, simultaneously, maybe the sound of shooting that night. She also heard "things" being thrown at the apartments and saw a group of people across the street. Daniel and a person called Red were downstairs on the sidewalk by the garage gate. They then walked through the gate and up the stairs to the apartments. Daniel told Red to get a gun. Randy, Lewis's next-door neighbor at the time, handed Red a gun, which he passed to Daniel on the stairs. Daniel crossed the street, stopped and moved his hands forward, palms together. Lewis immediately heard shots and closed her front door.
On some unknown date following his conviction for carrying a loaded firearm, the .38-caliber gun taken from Daniel was destroyed. In 2003, the bullet removed from Jose's body was destroyed.
d. Daniel is in New Mexico in 2004; the investigation is reopened in 2010; and Daniel admits the shooting in 2013
By 2004, Daniel was in New Mexico, where he was arrested for an unrelated offense. In 2010, Long Beach Police Detective Peter Lackovic reopened the investigation of the shootings of Jose and Angel. He learned Lewis had identified Daniel in October 1994 and certain evidence, the bullet removed from Jose and the .38-caliber gun seized from Daniel, had been destroyed. In 2012, Lackovic reinterviewed available witnesses, among them Mitchell, Lewis's daughter. Mitchell said she had no recollection of a murder or any shooting having occurred in August 1990. No one else identified Daniel or anyone else to Lackovic as the shooter, and the detective obtained no new information about Daniel's current location.
In late 2012 or early 2013, Lackovic became aware Daniel was in custody in New Mexico, having been arrested on November 20, 2012 for an unrelated offense. At Lackovic's request, Daniel was extradited to California on May 3, 2013 on the outstanding warrant in his 1991 cocaine possession case. Long Beach police placed Daniel in a jail cell with two paid informants posing as fellow inmates. Their conversations were audio-recorded.
This is a police practice described in Illinois v. Perkins (1990) 496 U.S. 292, and was referred to by the trial court and the parties as a "Perkins operation," or "undercover operation," using "Perkins agents" or "undercover agents."
The recording consisted of nine hours of conversations over two days. The prosecution and defense each played for the jury pertinent portions of the final 45 minutes of the recording.
Daniel admitted belonging to a gang and having shot and killed Jose, a BST gang member. The gun Daniel used was a .357-caliber gun tossed to him fully loaded by someone else at the apartments. He fired the gun once "at them, at the homie I mean" and "somebody fell." Daniel said he committed the shooting because some BST gang members had recently beaten him. He then wiped the gun clean, before handing it over to someone to discard. A year or two later, police searched Daniel's house, but he managed to hide before fleeing. Daniel was certain he could not be identified, because the cap he was wearing covered his face.
2. Procedure
a. The information
On December 3, 2013, Daniel was charged with one count of first degree murder (Pen. Code, § 187) and one count of attempted willful, deliberate and premeditated murder (§§ 187, 664). The information alleged firearm-use and gang enhancements as to both offenses (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)). The prosecution later declined to pursue the gang enhancements, and they were dismissed.
Statutory references are to the Penal Code, unless otherwise indicated.
b. The motion to dismiss
On February 9, 2018, Daniel filed a motion to dismiss for delayed prosecution. He argued the police intentionally or negligently failed to investigate the shooting until 2013, even though he had been identified as a potential suspect in 1994. According to Daniel, the 23-year unjustified delay "resulted in the loss of material evidence, and material witnesses who could offer exculpatory testimony on [his] behalf," and thus violated his due process rights. The prosecution filed opposition.
Following an evidentiary hearing, the trial court issued a written ruling. In denying the motion to dismiss, the court determined Daniel had "failed to carry his burden of showing actual prejudice to shift the burden to the People to justify [the] delay. . . . Even assuming some actual prejudice, it is clearly outweighed . . . by the justification of the People not having a basis to suspect the Defendant until October 5, 1994; the Defendant being in bench warrant status . . . from September 28, 1994 until he was extradited from New Mexico back to Long Beach on or about May 3, 2013; [and the People] not having been able to have reasonably located the Defendant, who was apparently living out of state since at least 2004, until he was arrested in New Mexico in 2013." The case proceeded to trial.
c. The trial
The prosecution's theory was Daniel fired his gun intending to kill Jose and Angel in retaliation for having been recently assaulted by BST gang members. The defense presented alternative theories that Daniel was not the only shooter at the time or, even if he were, he fired the gun in self-defense.
During trial, percipient witnesses gave differing descriptions of the shooter and the shooting, including the number of shots fired. With the exception of Lewis, none of the witnesses ever identified Daniel as the shooter—in or out of court.
Daniel testified in his defense to being a former Eastside Longo gang member in Long Beach. On the night of August 11, 1990, he went to the apartments to buy drugs from Lewis's son, Robbins, and other residents inside the parking garage. BST gang members had gathered across the street, and yelled insults after throwing bottles into the garage. The yelling increased as more BST gang members gathered. Daniel "just stood there, just in shock." He then heard gunshots and left the garage. As Daniel was crossing the street, he heard several gunshots and saw flashes from where BST gang members were standing. Believing he was under fire, Daniel grabbed the .38-caliber gun he had purchased for protection after some BST gang members had beaten him. To defend himself, Daniel ducked and fired once "in the direction of the flashes and gunshots," before fleeing. Someone else he could not identify was also shooting at BST gang members.
Daniel testified he was intimidated by the two police informants, who were placed with him in the cell. They were heavy set and had shaved heads and gang tattoos. From their demeanor and conversations, he thought they were gang members arrested for murder. The reason Daniel told them he was a gang member and had been involved in the August 11, 1990 killing was "to fit in," by appearing "hard-core too." He also wanted to ensure the informants would not consider him "a snitch." What Daniel said to them about a gun being tossed to him was not true. It was a story he had heard after the shooting. Daniel could not remember why he had failed to tell the informants he was defending himself against rival gang members at the time of the shooting.
Following Daniel's testimony, defense counsel sought to introduce the reported statements of three percipient witnesses, one 11-year-old and two 9-year-old boys, who could not be located. A police officer interviewed the boys at the scene after the shooting. Two of the boys had told the officer they heard one or more gunshots and immediately saw a man run down the nearby alley. One boy added the man was trying to place something in his pants as he ran. The third boy saw the man fire a gun repeatedly before entering the alley. Counsel argued that because Angel testified to having fled down the alley during the shooting, the boys' statements reasonably suggested he was also firing a gun that night, which supported Daniel's self-defense theory. Relying on People v. Conrad (2006) 145 Cal.App.4th 1175, 1185 (Conrad), counsel maintained the boys' statements "exonerate[d]" Daniel and must therefore be admitted to cure the prejudice caused by the loss of these witnesses due to the delayed prosecution.
In Conrad, supra, 145 Cal.App.4th 1179-1181, the defendant was unable to present certain exonerating testimony to the jury because the witness died before trial. The appellate court recognized "[a] trial court has discretion to fashion a remedy when the prosecutor's conduct has resulted in a loss of evidence favorable to the defense. [Citations.] When, as here, the delay in prosecution resulted in the loss to the defense of identifiable evidence, the prejudice to the defendant may be substantially mitigated, even virtually eliminated [short of dismissal], by presenting the evidence to the jury through alternate means." (Id. at p. 1185.) The Conrad court concluded the appropriate remedy was an instruction relating the lost evidence to the jury. (Id. at p. 1186.)
The trial court found Daniel's due process rights were not violated by the delayed prosecution. The court stated, however, that it had already allowed hearsay evidence to be admitted under Conrad to cure "some potential prejudice" to Daniel. With respect to the missing three boys, over the prosecutor's hearsay objection, the court permitted their statements to be admitted through the testimony of the interviewing officer to mitigate any existing or potential prejudice. Citing People v. Booth (2016) 3 Cal.App.5th 1284, the court explained, "I don't think there can be a dispute that, given the defense theory of this case that these statements, while the People are free to, and I fully expect they will, try to explain those statements, are favorable to the defense on the issue of whether there was more than one shot fired and who was firing the shots."
The parties had stipulated the contents of police reports written by unavailable officers had been or were to be admitted into evidence.
In People v. Booth, supra, 3 Cal.App.5th at pp. 1287-1288, "an eyewitness who had exonerated [the defendant] could not be found, and the case proceeded to trial in" the witness's absence. The appellate court concluded the defendant's "constitutional right to a fair trial [could] be accommodated by retrying the case and allowing the jury to hear the" exonerating witness's tape-recorded statements. (Id. at p. 1313.)
At this point, the prosecutor stated she would challenge the boys' credibility when arguing to the jury. The trial court agreed to defense counsel's request to advise the jury the boys were not available for trial and their statements to the officer were not given under oath.
d. The verdict and sentence
On May 24, 2018, a jury convicted Daniel as charged and found true the alleged firearm-use enhancements.
On June 26, 2019, the trial court sentenced Daniel to an indeterminate term of 25 years to life for murder, and a concurrent term of life for attempted murder and struck the firearm-use enhancements. The court imposed various fines, fees, and assessments, including $300 restitution and parole revocation fines. Daniel timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying Daniel's Motion to Dismiss for Delayed Prosecution
a. The applicable law and standard of review
"The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution, protect a defendant from the prejudicial effects of a lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430.)
Prejudice may be shown by the loss of a material witness or other missing evidence or fading memory caused by the lapse of time. (People v. Nelson (2008) 43 Cal.4th 1242, 1251.) "If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.] But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. [Citations.]" (People v. Abel (2012) 53 Cal.4th 891, 909.)
On the other hand, if the delay is shown to have denied the defendant due process, the remedy is generally dismissal of the charges. (People v. Boysen (2007) 165 Cal.App.4th 761, 777 (Boysen).) However, as in this case, the trial court can exercise its discretion under Conrad to formulate an alternative remedy to alleviate prejudice caused by the delayed prosecution. (People v. Conrad, supra, 145 Cal.App.4th at p. 1185.)
"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation]." (People v. Cowan, supra, 50 Cal.4th at p. 431.) Under this standard, there is no basis to disturb the trial court's ruling in this case.
b. Daniel did not suffer a due process violation
(1) Actual prejudice
At the conclusion of the evidentiary hearing, the trial court found Daniel had initially failed to meet his burden of showing actual prejudice from the delayed prosecution. Daniel urges this finding is not entitled to deference because it is not supported by any underlying factual findings. Daniel mistakes the record. The court prefaced its ruling with 36 underlying factual findings, labelled as a "Brief Chronology of Salient Events."
In any event, Daniel never objected to what he perceived as a lack of underlying factual findings or any other deficiency in the court's ruling. (People v. Stowell (2003) 31 Cal.4th 1107, 1114 [" 'with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court' "]; People v. Peel (1993) 17 Cal.App.4th 594, 600 [a defendant who fails to request findings, or fails to object to the failure to make findings, forfeits the right to raise the issue for the first time on appeal]; see People v Scott (1994) 9 Cal.4th 331, 352-353 [failure to object denies the trial court the opportunity to correct alleged sentencing error].)
The trial court did not abuse its discretion in initially finding Daniel had failed to meet his burden to show actual prejudice. "Prejudice . . . from precharging delay is not presumed. [Citations.]" (People v. Abel, supra, 53 Cal.4th at p. 908-909.) Instead, the defendant must affirmatively demonstrate having suffered actual prejudice as a result of the delay, as opposed to the possibility of prejudice, before the prosecution is obligated to offer justification for the delay. (Id. at p. 909; see People v. Cordova (2015) 62 Cal.4th 104, 120; People v. Nelson, supra, 43 Cal.4th at p. 1250 ["To avoid murder charges due to delay, the defendant must affirmatively show prejudice."].) The showing of actual prejudice "must be supported by particular facts" and not "by bare conclusory statements." (Serna v. Superior Court (1985) 40 Cal.3d 239, 250.) Further, the amount of time between the commission of the crime and the filing of charges is not the critical issue. (Fowler v. Superior Court (1984) 162 Cal.App.3d 215, 221.) Prejudice sufficient to justify a dismissal has resulted after a delay of five months (People v. Cave (1978) 81 Cal.App.3d 957), while charges filed after a delay of more than 20 years have been upheld (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257).
Daniel argues, as he did in the trial court, that he met his burden by demonstrating "significant prejudice" from the destruction of both the .38-caliber gun taken from him and the bullet taken from Jose's body, and the fading memories of testifying witnesses. However, Daniel cannot show that such evidence would actually have been exonerating, rather than incriminating or inconsequential, if it had been available at trial. (People v. Nelson, supra, 43 Cal.4th at pp. 1250-1251.)
With respect to the gun and the bullet, Daniel maintains if these items had been preserved for a ballistics test that found no match, "the jury would have had no choice but to acquit him" of Jose's murder. He is simply wrong. Daniel was found in possession of the gun a month after the shooting. If the gun and the bullet had not been destroyed, they would either have been inculpatory or inconsequential. If a ballistics test revealed the gun was used to fire the fatal shot, Daniel's possession of it a month after the murder would have been inculpatory. If, on the other hand, the ballistics test revealed it was not the gun used to kill the victim, that would not be particularly exculpatory. The fact he was not in possession of the gun a month after the murder did not suggest he was not the shooter; he could have gotten rid of the gun. Indeed, during the Perkins operation, Daniel said he gave the gun away, and according to Lewis, he got it from a neighbor.
Daniel fares no better concerning the fading memories of two percipient witnesses, Israel Salazar and Juan Viramontes. Salazar saw the shooting and told police at the time that he would "possibly" identify the shooter. At trial, however, Salazar could not remember having made that statement or reporting the shooter was Hispanic and chasing two people. Viramontes saw the shooting, but he testified his memory of it was "like a dream" and "vague."
Daniel claims he was prejudiced by Salazar's and Viramontes's faded memories. He argues police could have shown the two witnesses photographic lineups containing his photograph in 1994, when their memories were still relatively fresh. According to Daniel, "[t]o the extent either witness failed to identify [him], it would have significantly bolstered the defense theory of multiple shooters."
We disagree. First, there is no way of knowing the state of the witnesses' memories in 1994 as opposed to 2018 when the trial occurred. To be sure, the passage of time inevitably dims the ability to remember. But Daniel's claimed prejudice is speculative. (People v. Abel, supra, 53 Cal.4th at p. 909 ["defendant made no showing that (the witness's) recall would have been more specific had she been contacted earlier"].) Moreover, as with the destroyed bullet and gun, the use of a photographic lineup containing Daniel's photograph would not be exculpatory. Daniel admitted firing a gun that night in the direction of BST gang members. A positive identification of him as the shooter in such a lineup would have been inculpatory. But the failure to identify him as the shooter would mean the witnesses either selected another person's photograph, who was not a shooting suspect, or failed to select any photograph at all. Neither scenario would support Daniel's defense of multiple shooters or exonerate him as the shooter.
Lastly, for the first time, Daniel complains of the lack of any reference in police reports to "strike marks" made by gunshots at the scene. The existence of such evidence, its probative value, and whether its absence was caused by litigation delay, is entirely speculative. (People v. Nelson, supra, 43 Cal.4th at p. 1251 [claim of prejudice may not be overstated, speculative, or meritless].)
Rather than addressing these deficiencies in his claim of prejudice, Daniel complains about the remedy the trial court granted at his behest to alleviate it. As the nature of Daniel's defense became clear, the court agreed he had suffered "some prejudice," although not enough to violate due process. As discussed, "to ensure that fair trial," the court then allowed the defense to admit the unavailable boys' hearsay statements to police pursuant to Conrad. Daniel now contends the admission of those statements was "inadequate." He argues, "[a]s the court predicted in Boysen[, supra, 165 Cal.App.4th at p. 778], this remedy was inadequate because the prosecution fiercely attacked the credibility of the absent witnesses and the defense was unable to effectively rehabilitate their statements in their absence." However, Boysen is of no assistance to Daniel.
Boysen involved a murder, in which the defendant was not prosecuted for over 20 years for killing his parents. (Boysen, supra, 165 Cal.App.4th at p. 765.) Two of the parents' neighbors, who could support the defendant's alibi defense, had since died. (Id. at pp. 778-779.) One of those neighbors, who was particularly credible, told police she heard a gunshot at least 45 minutes after the defendant's wife said he had arrived home. (Id. at p. 771.) The second neighbor heard the sound of a car engine around the same time. (Ibid.)
In Boysen, the prosecution offered to forgo a hearsay objection to any relevant statements made by the first neighbor. (Boysen, supra, 165 Cal.App.4th at p. 778.) But allowing the hearsay statement into evidence without objection did not prevent the prosecution from attempting to impeach the neighbor. (Ibid.) In affirming the trial court's finding of prejudice from the delay in prosecution, the appellate court noted that, because the neighbor was deceased, "it would be impossible for the defense to develop additional supporting evidence from her and to rehabilitate their witness. While an offer to allow a hearsay statement from a witness might be a meaningful concession when the evidence is merely supportive or foundational or when not a matter of serious contention, it is not meaningful when the evidence is crucial to the case and highly contested." (Ibid.)
Here, it was the defense, not the prosecution, who wanted the hearsay evidence of the three boys' statements to be admitted for tactical reasons—to show Angel participated in the shooting and to support Daniel's claim he returned fire in self-defense. Undoubtedly, defense counsel was aware of the potential consequences of having the statements admitted. In any event, because a hearsay objection to the admission of the boys' statements was affirmatively waived at trial, any potential negative consequences of that waiver, which the hearsay rule was designed to prevent, cannot be complained of on appeal. (See People v. Wheeler (1992) 4 Cal.4th 284, 299 [parties may, in general, waive objections to hearsay, either affirmatively or by failing to object in the trial court].)
Even if Daniel had not waived any hearsay objections to the admission of the statements, we are not persuaded the requested remedy of admission of the boys' statements was inadequate, as the court found under the circumstances in Boysen. The record belies Daniel's contention the prosecutor "fiercely attacked" the absent boys' credibility. To be sure, the prosecutor sought to discount their statements to Lieutenant Kevin Coy, the interviewing officer, by showing his questioning of the boys was inadequate. Rather than attack the substance of the boys' statements to Coy, she attacked the officer's credibility and competence as an investigating officer. Apparently, Coy had only joined the Long Beach police in 1989 as a new patrol officer. In cross-examining Coy, the prosecutor elicited from him what he could not remember doing and failed to do at the time. For example, she inquired whether Coy had (1) spoken to the boys or their parents about why the boys were in the crime scene area that night; (2) looked for physical evidence to corroborate the boys' statements; (3) recorded the boys' individual interviews; (4) asked each boy whether he knew the difference between telling the truth and telling a lie; (5) asked each boy why he was reluctant to give a statement; (6) asked the boys whether they had spoken to anyone before giving their statements; and (7) asked the boys to reenact what they saw of the shooting. To each of these questions, Coy generally answered, "No," or "I don't believe so" or "I don't think so," and, "I don't recall." The prosecutor also made a point of asking why Coy failed to ask the boys pertinent follow-up questions, to document certain aspects of the investigation in his report and to correctly name the nearby alley.
On redirect examination, defense counsel had an opportunity to rehabilitate Officer Coy, by asking what he had been assigned to do that night as a new officer and having him explain his conduct at the scene based on his training and experience at the time. Coy also testified he was not asked to review his report prior to testifying, and he had no reason to believe the three boys were lying to him.
Daniel also contends the prosecutor similarly attacked the boys' credibility, to Daniel's detriment, in arguing to the jury. During opening argument, the prosecutor maintained that Daniel's only basis for self-defense, apart from his own testimony, was Officer Coy's reported interview with the boys, which was deficient. The prosecutor stated, "I'd just talked about the statements of the three young [boys] and those were the defense key witnesses, right? We know over [sic] those statements and why they were highly problematic, because we just didn't have enough information."
Daniel also asserts the prosecutor improperly argued the defense contrived the theory of multiple shooters after receiving a copy of the murder book, which included the boys' statements. It is true, the prosecutor argued, "Where did [Daniel] come up with this, because now he has had access to the murder book, right? He has listened to the testimony. He has adopted the statements of the three young [boys]." This was not an attack on the boys' credibility as Daniel claims, but an attack on Daniel's credibility.
In her argument, defense counsel maintained the Long Beach police, as a whole, failed to properly investigate the murder. "Because if they had, it would have been [Angel] in custody instead of [Daniel]." She also argued the boys' statements supported the defense and were credible, adding: "Whose fault is it that we can't find [the boys] and [the prosecution] can't either?"
In closing argument, the prosecutor argued Daniel's testimony of multiple shooters had no corroboration other than Viramontes, and "those kids who we didn't hear from, and even then, we're not quite sure what they heard, but okay. I said is there anything more than the kids? Nothing. So that's why I'm saying [Daniel's] statement is not credible, because there's nothing to corroborate it."
The boys' reported statements were admitted into evidence as the defense had requested. Even assuming Coy's testimony concerning the statements was not as compelling in light of the prosecutor's cross-examination and closing argument, the jury, nonetheless, still had the substance of the boys' statements to consider, which the prosecution did not attack. We do not find the prosecutor's challenges to Coy's testimony caused the admission of the hearsay statements to be an inadequate remedy.
(2) Justification for the delay
Daniel's failure to demonstrate actual prejudice would ordinarily foreclose the need to consider the prosecution's justification for the delay. (People v. Jones (2013) 57 Cal.4th 899, 921.) We briefly consider it, however, in light of the trial court's subsequent finding there was some prejudice, although not enough to outweigh the justification for the delay.
"[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant. In Scherling [v. Superior Court (1978)] 22 Cal.3d [493,] 506-507, we said that because the 'defendant was not prejudiced by the delay, we need not determine whether the delay was justified, particularly since there was no evidence that the delay in prosecution was for the purpose of weakening the defense. In [People v.] Catlin [(2001) 26 Cal.4th 81], we found the justification for the delay outweighed the defendant's weak showing of prejudice, but we also observed 'that there was no evidence that the delay was undertaken in order to gain an advantage over defendant. . . .' (Catlin, supra, 26 Cal.4th at pp. 109-110.) As these observations imply, whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (People v. Nelson, supra, 43 Cal.4th at pp. 1255-1256.)
Daniel frames his claim as one under both the federal and state Constitutions, but "[b]ecause the law under the California Constitution is at least as favorable to [Daniel] as federal law, we apply California law to [Daniel's] claim." (People v. Abel, supra, 53 Cal.4th at p. 909, fn. 1.)
Here, there was nothing in the record indicating the prosecution caused the delay or allowed the case to languish in order to take advantage of Daniel. Moreover, in comparison to the minimal prejudice, if any, to Daniel, the delay in this case was justified as investigative delay. As the trial court found, following the 1990 murder of Jose, police launched a homicide investigation. However, there was no reason for Daniel to be suspected of the crime until October 1994, when Lewis identified him. By that time, Daniel had absconded from probation and a bench warrant had issued. Police searched for Daniel at his last known residence, but he had fled. Since at least 2004, Daniel had been living in New Mexico. Upon learning of Daniel's whereabouts, police extradited him to California on the probation violation.
Daniel argues because he was identified as a suspect in 1994, and arrested (and released) in Fullerton in 2001, police "could have attempted to interview" him and to conduct the Perkins operation "at least ten years" earlier. Daniel's relatively weak reasons in hindsight that law enforcement could have targeted him earlier cannot overcome the strong justification for the delay in this case. As the California Supreme Court explained, "A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. . . . It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently, they would have solved the case sooner." (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) The trial court did not abuse its discretion in denying Daniel's motion to dismiss for delayed prosecution.
2. Substantial Evidence Supported Daniel's Conviction for Attempted Murder
Daniel was convicted of the murder of Jose and the attempted murder of Angel. He contends there was insufficient evidence of attempted murder based upon the firing of a single shot at both victims.
When determining whether the evidence was sufficient to sustain a criminal 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.]' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104; People v. Salazar (2016) 63 Cal.4th 214, 242.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Booker (2011) 51 Cal.4th 141, 172; People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Penunuri (2018) 5 Cal.5th 126, 142.).)
For first degree murder, the jury was instructed it had to find Daniel killed Jose willfully, deliberately and with premeditation. (CALCRIM No. 521.) For attempted willful, deliberate and premeditated murder, the jury was instructed it had to find Daniel took a direct step with the intent to kill Angel, and he did so willfully, deliberately and with premeditation. (CALCRIM Nos. 600, 601.) According to Daniel, because he fired only one shot, he could not have harbored the intent to kill both Jose and Angel. Daniel then cites cases for the proposition that a single gunshot cannot support separate convictions for murder and attempted murder unless both victims were in the line of fire, which he insists, did not happen here. (People v. Perez (2010) 50 Cal.4th 222; People v. Leon (2010) 181 Cal.App.4th 452.) Those cases, however, are inapposite.
The prosecution's theory was that Daniel "shot" in the direction of Jose and Angel. There was ample evidence Daniel fired multiple shots at Angel and Jose. Angel testified he heard "the shots" before diving into an alley. Lewis testified that, after Daniel was given a gun, he crossed the street, stopped, and moved his hands forward with his palms cupped together. Lewis then "heard shots." Viramontes testified he was riding in his mother's car when he saw a man raise his hands in an angry gesture, walk 10 steps, kneel and "let off a couple of shots." He also testified the man fired "three or more shots." In arguing to the jury, the prosecutor never urged that Daniel could be convicted of attempted murder based on having fired a single shot at both victims.
To be sure, Daniel both testified and told police informants during the Perkins operation that he fired a single shot, and Salazar testified he saw an armed man, who was chasing two people, raise his gun and fire one shot. However, as the trial court instructed, the credibility of witnesses and conflicts in the evidence are for the jury to resolve. (CALCRIM. Nos. 302, 315; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) The jury resolved both witness credibility and evidentiary conflicts against Daniel. Its findings are binding on appeal. Substantial evidence supported Daniel's conviction for the attempted willful, deliberate and premeditated murder of Angel.
3. The Parole Revocation Fine and the Restitution Fine Violated the Ex Post Facto Clause
At sentencing, the trial court stated, Daniel "is to pay a restitution fine [under section 1202.4, subdivision (a)]. In this particular case, I'm imposing the minimum restitution fine of $300. Given the status of the law, it is possible he may be paroled at some point in time. Given that, I'm imposing and staying a parole revocation restitution fine in that same amount [under section 1202.45]." Daniel argues the imposition of the fines violated the ex post facto clause. We agree.
"It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions. [Citations.]" (People v. Souza (2012) 54 Cal.4th 90, 143; accord, People v. Nuckles (2013) 56 Cal.4th 601, 608.) A parole revocation fine is viewed similarly. (People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 8; People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182.) "The proscription against the ex post facto application of laws . . . is designed to prevent a criminal defendant from being unfairly disadvantaged by a change in the law occurring between the time of the crime and the time of trial. [Citations.]" (Flores, at p. 1176.) " '[T]he central concern to the ex post facto prohibition is " 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.' " ' [Citation.]" (People v. Acosta (2009) 176 Cal.App.4th 472, 476.)
a. The restitution fine
When Daniel committed his crimes on August 11, 1990, section 1202.4, subdivision (a) mandated the imposition of a restitution fine of "not . . . less than one hundred dollars ($100), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony. . . ." (Stats. 1990, ch. 45, §§ 2, 4; see also former Gov. Code § 13967; People v. Giordano (2007) 42 Cal.4th 644, 653.) By the time Daniel was sentenced in 2019, however, the Legislature had raised the minimum restitution fine to $300. (Stats. 2016, ch. 37, § 3.)
The trial court's comments at sentencing reflect the intent to impose the statutory minimum restitution fine. Because the minimum fine under the applicable statutes when Daniel committed the crimes was $100 and the minimum fine under the amended version was $300, the trial court's imposition of the $300 fine violated the ex post facto clause and must therefore be reduced to $100.
b. The parole revocation fine
Section 1202.45 requires a parole revocation fine to be imposed in the same amount as the restitution fine in cases where the defendant's sentence included a period of parole. The Legislature enacted the statute in 1995, after Daniel's 1990 crimes. We agree with the decision of our Division Seven colleagues that a parole revocation fine is clearly increased punishment for a past offense that may be triggered by future misconduct, rather than new punishment for future misconduct. (People v. Callejas (2000) 85 Cal.App.4th 667, 676-678.) Because the parole revocation fine makes Daniel's punishment more burdensome, it violated the ex post facto clause. "[T]he ex post facto clause forbids imposing a parole revocation fine on a parolee who committed the underlying crime prior to enactment of the fine." (Id. at p. 676; accord People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182.) Accordingly, we strike the parole revocation fine.
DISPOSITION
We modify the judgment to reduce the section 1202.4, subdivision (a) restitution fine and to strike the section 1202.45 parole revocation fine. We affirm the judgment as modified. The trial court is to prepare an amended abstract of judgment and to forward a certified copy to the California Department of Corrections and Rehabilitation.
EDMON, P.J. We concur:
LAVIN, J.
EGERTON, J.