Opinion
G044195 Super. Ct. No. 07CF0051
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE CLEMENTE MERLE and JOSE ARMANDO GUERRERO, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Jose Clemente Merle. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Jose Armando Guerrero. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeals from judgments of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed as modified.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Jose Clemente Merle.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Jose Armando Guerrero.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendants Jose Clemente Merle and Jose Armando Guerrero were convicted of second degree robbery (Pen. Code, § 211; all further statutory references are to this code unless otherwise stated). The jury found true that Guerrero, a principal, personally discharged a firearm during the commission of the robbery within the meaning of section 12022.53, subdivision (c), and that Merle, a principal, was knowingly and vicariously armed with a firearm, within the meaning of section 12022, subdivision (d). The court sentenced Guerrero to 23 years in prison and Merle to 5 years' probation.
Guerrero contends that admission of out-of-court statements by Merle, a non-testifying codefendant, violated his Sixth Amendment right to confrontation. Merle claims there was insufficient evidence to support the true finding on the firearm enhancement under section 12022, subdivision (d) and that he is entitled to additional custody and conduct credits.
The Attorney General agrees with Merle's credits claim, as do we. We modify his judgment to correct the credits but otherwise affirm both judgments.
FACTS
While Victor Bustos was walking one night a truck drove up and stopped nearby. A young Hispanic man, identified as defendant Guerrero, stepped out of the passenger side armed with a handgun. Guerrero approached Bustos, pointed the gun at him, and demanded "give me your fucking money." Bustos gave Guerrero $10 in cash and a debit card.
A second male Hispanic, identified as defendant Merle, stepped out of the rear passenger door of the truck, approached Bustos, and took his cell phone. As the two defendants returned to the truck, Bustos attempted to write down the license plate. Guerrero fired his handgun twice at him. Bustos ran home and called the police, describing the truck and defendants.
About two hours later, detective Roland Andrade stopped a truck matching Bustos's description at a liquor store. John Guillen was the driver and Merle and Guerrero were passengers. Investigators found gunshot residue on Guerrero and Merle. Bustos identified both defendants during a curbside lineup held two hours after the robbery, but stated he had never seen Guillen.
After being arrested, both Guerrero and Merle spoke with police. Guerrero first told Andrade that after playing basketball until about 8 p.m., he went to the store with Guillen and some others. The others left to go to a baseball game, returning about 10 p.m. to Guerrero's home. They then went to the liquor store where Andrade arrested them. When Andrade told Guerrero he was not telling the truth, Guerrero then said that before they went to the store "Joey and John" drove someone named Deebo home but Guerrero did not go with them.
Andrade again accused Guerrero of being untruthful. Guerrero added that Guillen asked him to accompany him to "go jack people." Guerrero said he refused to go because someone's parents might be "jacked" and his parents gave money to him. When Andrade said he was "still not telling the truth" and prompted him, Guerrero said Guillen had told him he had previously "jacked" some people and had a lot of money. In addition, Guerrero admitted he had gone to drop off Deebo. Further, when they drove to the liquor store, Guillen told him he had a gun, although Guerrero never saw it. At trial, Andrade read a redacted version of the transcript of this interview. The transcript was admitted in evidence and a copy given to the jury.
Andrade also interviewed Merle and testified to a redacted version of it, stating Merle told him "we were just playing basketball" when "we" decided to drive with Guillen to a liquor store to buy cigarettes. The transcript was not admitted.
Merle spoke to detective Matthew McLeod as well. He first explained "we" had been playing basketball at his grandmother's house, then they took a friend home and went to the liquor store. "And then . . . from that point on, that's when . . . Officer Andrade . . . talked to us about where we were coming from and everything. And we just headed back to where we were at, and that's when everything started happening."
Merle told McLeod three men were in the truck that picked him up - Joe Torres, Guillen, and Deebo - and described each of them. He said Torres got out of the truck before they took Deebo home. Thereafter they returned to Merle's grandmother's house and then went to the liquor store where police stopped them.
Merle added that one of the guys he was with that night was a troublemaker who had been released from jail seven months' prior. That person routinely went to an area in Santa Ana to mug prostitutes.
When McLeod accused Merle of being untruthful, Merle admitted that shortly before Guillen had arrived, he had had a confrontation with some kids who lived across the street from his grandmother. McLeod pushed for more information and Merle said Guillen had told him a week before that a friend needed some money to pay rent and they suggested they go mug some people.
McLeod told Merle he needed to provide more details, and Merle began talking about the night of the robbery. He said he had been in the backseat of the car using headphones to listen to a CD and "remember[ed] someone getting off. . . . [A]nd then he was . . . saying some stuff to somebody . . . and I couldn't really see him. . . . And then . . . I just kind of ignored it . . . 'cause I didn't . . . know what was going on. And then . . . I took off the headphones and then, right when I took them off, he's . . . already in the car saying, let's go, let's go." Merle also gave McLeod the time and location of the robbery and when pressed by McLeod that someone else had left the car, Merle stated "[i]t had to be [Guillen]."
Neither Guerrero nor Merle testified at trial. The jury was instructed with CALCRIM No. 305 that it could not use Merle's out-of-court statements against Guerrero.
DISCUSSION
1. Guerrero's Appeal
The trial court approved a redacted transcript of defendant Merle's interview with McLeod that substituted references to codefendant Guerrero with the words "me and another person" and other neutral pronouns and allowed it to be read and given to the jury. Guerrero contends the redactions and substitutions in Merle's statements were not sufficient to protect his rights to confront and cross-examine Merle under the Aranda/Bruton rule (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]).
To protect a defendant's right to confrontation "[t]he Aranda/Bruton rule bars admission in a joint trial of one defendant's [otherwise inadmissible] out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant. [Citations.] The rule recognizes the jury may struggle to obey such a limiting instruction when both defendants are in the courtroom, tried for the same crime, and an unfair danger exists the jury will improperly consider the hearsay confession against the non-declarant codefendant. [Citation.] To avoid this danger, the court must either sever the trial or redact the statement to avoid references to the codefendant. [Citation.]" (People v. Smith (2005) 135 Cal.App.4th 914, 921-922.)
Redaction is sufficient where a "confession [is] not incriminating on its face, and [becomes] so only when linked with evidence introduced later at trial . . . . [¶] Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." (Richardson v. Marsh (1987) 481 U.S. 200, 208, fn. omitted [107 S.Ct. 1702, 95 L.Ed.2d 176] see also People v. Lewis (2008) 43 Cal.4th 415, 454.) Thus, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Richardson v. Marsh, supra, 481 U.S. at p. 211, fn. omitted.) But Richardson did not decide whether a redaction would be sufficient where the defendant's name is replaced with a neutral pronoun. (Id. at p. 211, fn. 5.)
That issue was considered in People v. Fletcher (1996) 13 Cal.4th 451, on which Guerrero relies. The court held the question must be decided case by case. (Id. at pp. 456, 468-469.) "A confession redacted with neutral pronouns may still prove impossible to 'thrust out of mind' [citation] if, for example, it contains references to distinctive clothing, mannerisms, place of residence, or other information that readily and unmistakably identifies the person referred to as the nondeclarant defendant." (Id. at pp. 465-466.) "On the other hand, there are instances in which replacing a nondeclarant defendant's name with a symbol or neutral pronoun will be effective in protecting the nondeclarant's rights under the confrontation clause. For example, a confession that is redacted to substitute pronouns or similar neutral and nonidentifying terms for the name of a codefendant will be sufficient if the codefendant was just one of a large group of individuals any one of whom could equally well have been the coparticipant mentioned in the confession. [Citations.]" (Id. at p. 466.)
Fletcher ruled it was error to admit against a codefendant, Fletcher's statements to a jail inmate who testified to them, even though the statements were redacted to eliminate reference to anyone specific. (People v. Flecher, supra, 13 Cal.4th at p. 469.) Although the statements did not refer to the codefendant by name, in context a "reasonable juror[] could not avoid drawing the inference that [the codefendant] was the unnamed person mentioned in Fletcher's statement." (Ibid.)
We do not have similar facts here. First, the redacted summaries of Merle's statements do not expressly implicate Guerrero but only arguably incriminate him when connected with other evidence, including Guerrero's own statements he was in the truck the night of the robbery. And the court instructed the jury it could not use Merle's statements against Guerrero.
Second, contrary to Guerrero's argument, it is not obvious from the redacted statement that the "someone" and "he" Merle mentioned referred to Guerrero. Merle altered and retold his version of events several times, making it nearly impossible for the jury to obtain a clear understanding of what happened the night of the robbery based solely on Merle's statements. He spoke of three other men besides Guerrero, Guillen, Deebo, and Torres. He told at least three stories before finally stating he had been in the back seat listening to music. Nothing in the statements explained the timing of this last event. Although Merle stated they had taken Deebo home, this could have happened after the robbery. As far as the jury could piece together, Torres, Deebo, Guillen, Guerrero, and Merle could all have been in the truck when the unnamed "someone" got out. This satisfies the test in People v. Flecher, supra, 13 Cal.4th at p. 466. Even though Guerrero admitted being in the truck, he denied he was there during the robbery. Thus, his own statements do not explicitly implicate him even when linked with Merle's. There are many different inferences the jury could draw, not just one implicating Guerrero. The redactions were sufficient.
Guerrero contends that even if they were, introduction of the statement violated Crawford. But "redacted codefendant statements that satisfy Bruton's requirements are not admitted 'against' the defendant for Crawford purposes. [Citation.]" (People v. Lewis, supra, 43 Cal.4th at p. 506.)
2. Merle's Appeal
a. Section 12022
The information alleged and the jury found true that Merle, a principal, was knowingly and vicariously armed with a firearm within the meaning of section 12022, subdivision (d). It requires additional punishment for "any person who is not personally armed with a firearm [but] who, knowing that another principal is personally armed with a firearm, is a principal in the commission of" certain offenses specified in section 12022, subdivision (c), which are all drug-related. Although Merle was convicted of robbery, the court sentenced him to an additional year in prison for the enhancement, execution of which was suspended. Merle contends there was insufficient evidence on which to base the true finding and the enhancement should be stricken. This argument does not persuade.
Due process requires that a defendant have sufficient notice of the charges and an opportunity to be heard and defend against them. (U.S. Const., 6th & 14th Amends.; People v. Thomas (1987) 43 Cal.3d 818, 823.) This applies to enhancements. (§ 1170.1, subd. (e).) An information that informs a defendant that an enhanced penalty is sought and alleges all facts required to prove it is sufficient. (People v. Sok (2010) 181 Cal.App.4th 88, 96, fn. 8.)
In People v. Thomas, supra, 43 Cal.3d 818, although the information charged the defendant with voluntary manslaughter, he was convicted of involuntary manslaughter, which had not been specifically included in the information. The court rejected a claim similar to the one defendant makes here and affirmed the conviction. It stated that "a valid accusatory pleading need not specify by number the statute under which the accused is being charged. [Citations.]" (Id. at p. 826.) "[A]n offense . . . in an accusatory pleading" "'may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved[,] . . . in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.'" (Ibid.) Further, and most applicable in our case, ""even a reference to the wrong statute has been viewed of no consequence under the circumstances there appearing [citations].' [Citation.]" (Ibid.)
Section 12022, subdivision (a)(1) provides for the same additional one-year sentence as subdivision (d) for a defendant who personally carries a firearm when committing a felony or if another principal possesses the firearm. The elements for both subdivisions are essentially the same, although there is no knowledge requirement in subdivision (a). Thus, defendant was aware he was being charged with an enhancement and of the facts on which it was based. Due process was satisfied and the evidence in the record supports imposition of the additional sentence.
b. Custody and Conduct Credits
Merle contends and the Attorney General agrees he is entitled to 309 days of custody credits and 46 days of conduct credits instead of the 193 and 28 days of custody and conduct credits, respectively, that the court actually awarded. We direct that the abstract of judgment be modified to reflect the correct number of days.
DISPOSITION
Defendant's Guerrero's judgment is affirmed. The judgment against Merle is modified to reflect he is entitled to 309 days of custody credits and 46 days of conduct credits and as modified the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: O'LEARY, J. IKOLA, J.