Opinion
G054692
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. LUIS MENDOZA, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF1469) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Luis Mendoza of three counts of attempted murder with premeditation and deliberation, three counts of robbery, three counts of assault with an automatic firearm, and one count of active participation in a criminal street gang. The jury also found true personal firearm use and criminal street gang sentence enhancement allegations. The court sentenced defendant to a term of 40 years to life, plus 38 years and four months.
Defendant contends there is insufficient evidence of premeditation and deliberation. He also seeks a remand for further sentencing proceedings (1) to make a record for a future youth offender parole hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin), (2) to clarify the proper minimum terms on the attempted murder counts and related enhancements, and (3) to give the court an opportunity to exercise its discretion to strike the Penal Code section 12022.5, subdivision (a) (section 12022.5(a)) firearm use enhancements. The Attorney General contends a remand for resentencing is required for a different reason, i.e., that the court imposed an unauthorized sentence.
We conclude substantial evidence supports the premeditation and deliberation finding, so we affirm the convictions. But we remand the matter for the court to consider striking the section 12022.5(a) enhancements, to reconsider its other sentencing choices in light of the changed circumstances (People v. Calderon (1993) 20 Cal.App.4th 82, 88 (Calderon), and to allow defendant make a record for a future parole hearing under Franklin. This disposition moots the other sentencing contentions.
FACTS
Defendant and Corbin Dennis had both been members of the Hard Times criminal street gang for many years. Hard Times' primary activities included homicide, assault with a deadly weapon, robbery, and illegal weapon possession. Hard Times claimed the neighborhood between Buena Street and Clinton Street, nicknamed the Buena Clinton area. Santa Nita was a rival gang. It claimed the territory just south of Hard Times' territory.
On the day of the incident, defendant armed himself with a semiautomatic hand gun. He and Dennis then jumped a fence from the Buena Clinton area and entered a border area separating Hard Times territory and Santa Nita territory. The area consisted of abandoned railroad tracks and rock piles.
Matthew Granados, David Hernandez, and Vicente Salcedo, all in their late teens, were sitting on one of the rock piles. Defendant and Dennis approached them, identified themselves as Hard Times members, and asked where they were from, which is gang speak for what gang do you belong to. All three denied any gang affiliation.
Granados stood up and walked toward defendant and Dennis. Defendant and Dennis asked again where he was from. Granados responded, "We don't claim anybody. If you're going to shoot us, shoot us." Defendant pointed his gun at Granados and fired four or five times, striking Granados in the shoulder and both legs. After Granados fell to the ground, defendant turned and fired three or four shots at Hernandez and Salcedo. As Salcedo was running away, he heard a bullet strike a tree next to him.
Defendant and Dennis then ran back to Hard Times territory. In making their escape, defendant and Dennis jumped a fence and headed up a trail. They encountered three boys in their mid-teens and robbed them at gunpoint.
George Kaiser testified as a gang expert. He said gang members who commit crimes gain respect. "Respect is huge in the gang lifestyle." A more violent or serious crime would increase a gang member's reputation. The phrase "putting in work" is a street term for committing crimes to benefit the gang and could include "going into a rival's neighborhood, . . . [and] going and doing a shooting."
A "hit-up" is asking a person what gang or neighborhood he or she belongs to. If the person responds he or she is from a rival gang or neighborhood, the gang member who asked the question is required to engage in a fight or shooting, or be considered to have "ranked out." Ranking out is not standing up for your gang, and is considered disrespectful.
In response to a hypothetical question based on the facts in this case, Kaiser opined the shooting would benefit Hard Times. He said "[i]t benefits the Hard Times gang by a projection of turf. It's a tested gang area, a border area if you will, between rival gangs." He explained, "[c]ontrol of the turf [of] the area is important to criminal street gangs." The production of "the handgun . . . is a projection of power, also control, intimidation; . . . [a]gain, a power and control issue for the turf since that area is a rival's area." The shooting "benefits the gang because they then have already identified themselves as being Hard Times. So anyone present at the event now knows who committed the shooting, who has the power, and who's willing to commit a serious crime to project that power and control." Moreover, upon being challenged by the statement, "if you're gonna shoot me, shoot, me," a Hard Times gang member would be "ranking out" if he did not shoot. "Ranking out" would cause the Hard Times gang to lose respect
DISCUSSION
1. Sufficiency of the Evidence - Premeditation and Deliberation
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted 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 (Bolin).)
"'"Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations].' [Citation.] '"'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 824.)
Three categories of evidence are relevant to resolving the issue of premeditation and deliberation—planning activity, motive, and manner of killing. (Bolin, supra, 18 Cal.4th at p. 331.) But these factors "are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive." (People v. Brady (2010) 50 Cal.4th 547, 561-562.)
As to planning activity, defendant had armed himself with a loaded gun prior to the attempted murders. (See, e.g., People v. Caro (1988) 46 Cal.3d 1035, 1050, abrogated on other grounds as stated in People v. Whitt (1990) 51 Cal.3d 620, 656-657, fn. 29; see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1123-1224 (Villages) [carrying a loaded gun at time of incident combined with perceived threatening conduct from the victim supported a plan to kill].)
With regard to motive, the jury could reasonably infer from the evidence that defendant went into Santa Nita territory looking to shoot any rival gang members he found, or anyone he perceived had challenged him or showed disrespect to him or his gang. Kaiser testified that to commit such a shooting, in a rival's territory would elevate the status of the member and his gang. Consistent with this end, defendant and Dennis told the shooting victims they belonged to Hard Times, and asked the victims where they were from. And once Granados essentially dared defendant to shoot them, defendant had an even stronger motive to shoot Granados, i.e., if he did not, he would be considered to have "ranked out," which would cause him to lose respect
Finally, the manner of shooting was purposeful. Defendant fired four or five shots at Granados at close range, and then fired three or four more shots at Hernandez and Salcedo. (Villegas, supra, 92 Cal.App.4th at pp. 1224 [premeditation and deliberation inferred where at least six shots fired into an occupied vehicle]; see People v. Smith (2005) 37 Cal.4th 733, 741 ["'act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill"'"].)
The fact Grenados was struck by at least three bullets undermines defendant's contention the shooting of Granados was random. That defendant subsequently fired multiple shots at Hernandez and Salcedo without provocation after Granados fell also "leads to an inference that [the] attack was the result of a deliberate plan rather than a 'rash explosion of violence.'" (People v. Miranda (1987) 44 Cal.3d 57, 87 (Miranda) [shooting of victims "who were unarmed and standing behind the counter a few feet away"], abrogated on other grounds as stated in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Miller (1990) 50 Cal.3d 954, 993.)
Defendant's remaining arguments merely suggest an alternative view of the evidence. He contends that if he had wanted to "enhance his gang's reputation and assert control of territory, he could have easily pulled out the gun and started shooting immediately"; the evidence did not suggest the crime was due to a gang rivalry; "the shooting was a rash and impulsive response to being confronted by Granados, Granados' fearless challenge for [defendant] to shoot them, and being outnumbered by Granados' crew"; and his conduct showed only a "spontaneous intent to kill," not considered planning, motive, or preexisting reflection. But the jury did not draw the inferences he urges, and we cannot reweigh the facts. (Bolin, supra, 18 Cal.4th at p. 331.)
Defendant maintains that although the evidence shows he was armed, "there was no evidence to show that he planned to use the weapon to kill." But as stated in Villegas, he did not need to have "planned to kill . . . before he saw [the victims] on the day of the incident," and the act of carrying a loaded gun shows "prior planning activity." (Villegas, supra, 92 Cal.App.4th at p. 1224.)
In his reply brief, defendant distinguishes Villegas on the basis that there, the defendant recognized the victim from a prior altercation, whereas here, there was no evidence he knew the victims and he did not immediately draw his gun upon seeing them. But evidence of planning does not necessarily require that the perpetrator know his victim or immediately draw his gun.
In Miranda, supra, 44 Cal.3d at page 87, the defendant walked into a mini-market and shot two strangers, i.e., employees working behind the counter, killing one. He did not shoot at them right away, but only after they told him it was too late to buy beer and the co-defendant had purchased a packet of cigarettes. As to planning, the court stated "the fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance." (Ibid., italics added; see People v. Lee (2011) 51 Cal.4th 620, 636 [that "defendant brought a loaded handgun with him . . . indicat[ed] he had considered the possibility of a violent encounter"].)
Defendant's reliance on People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman) is misplaced. There, the defendant shot his girlfriend while they were in a bedroom of his family's home. The defendant gave different versions of what happened, initially telling officers that his girlfriend accidentally shot herself, then stating that he accidentally shot her because he thought the gun was not loaded, and finally stating that he knew it was loaded, but she playfully pointed it at him, and he slapped it away and accidentally shot her. Immediately after the shot, the defendant attempted to give her mouth-to-mouth resuscitation and told his brother to call the police.
Boatman, concluded that there was no planning evidence presented. (Boatman, supra, 221 Cal.App.4th at p. 1267.) The court pointed out that there was "no evidence that defendant left the room or the house to get a gun, or that he even moved from his squatting position on the floor." (Ibid.) The court further reasoned that the "[d]efendant's behavior following the shooting [was] of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan," noting that he tried to resuscitate his girlfriend, told his brother to call the police, and could be heard crying in the background during the 911 call. (Ibid.) The court concluded that "[t]he evidence not only fails to support an inference of a plan to kill [his girlfriend], but strongly suggests a lack of a plan to kill." (Ibid.)
Boatman also found "little or no relevant motive evidence." (Boatman, supra, 221 Cal.App.4th at p. 1267.) The only motive evidence was a text message from the victim to a friend, stating that she was having a fight with the defendant. The Attorney General relied on this to argue that the jury may have inferred that the defendant was '"in a bad mood after being released from custody and he was angry with [his girlfriend].'" (Id. at pp. 1267-1268.)
Here, in contrast, when Granados walked up to defendant and said they did not claim any gang and to shoot them if was going to, defendant shot the three unarmed victims at close range. Defendant then immediately fled. Unlike in Boatman, there was no evidence that he appeared surprised by the results of his gun use, let alone horrified or distraught. Instead, defendant and Dennis went on to rob three teenagers at gunpoint. Boatman, therefore, is not controlling.
In sum, the evidence of planning, motive, and method all support the finding of premeditation and deliberation. (People v. Proctor (1992) 4 Cal.4th 499, 529.)
2. Sentencing Issues
As noted, defendant argues this case should be remanded to give the court an opportunity to exercise its discretion to strike the section 12022.5(a) firearm use enhancements. We agree. At the time defendant sentenced, the court had no discretion to strike the section 12022.5(a) enhancements. However, effective January 1, 2018, the court has discretion to strike the section 12022.5(a) enhancements in the interest of justice. (Penal Code §§ 1385, subd. (a), 12022.5, subd. (c).) This amendment carries the potential for a reduced punishment, and applies retroactively to defendant, because the judgment was not final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Moreover, because the court exercised its discretion when imposing the original sentence, the matter must be remanded for the court to reconsider its sentencing choices in light of the changed circumstances. (Calderon, supra, 20 Cal.App.4th at p. 88.)
On remand the court shall also to allow defendant to make a record for a future youth offender parole hearing under Franklin. And finally, because the parties will be able to revisit the other sentencing issues at the whole new sentencing hearing on remand, we need not address them here.
DISPOSITION
The judgment is reversed, the convictions are affirmed, and the matter is remanded with directions for the court: (A) to consider striking the section 12022.5(a) firearm enhancements in the interests of justice (Penal Code § 1385, subd. (a)); (B) to resentence defendant in accordance with applicable law, bearing in mind the new sentence cannot exceed the original sentence (People v. Burbine (2003) 106 Cal.App.4th 1250); and (C) to allow defendant to make a record for a future youth offender parole hearing under Franklin.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. GOETHALS, J.