Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Imperial County No. RIF121996, Elisabeth Sichel, Judge.
BENKE, Acting P. J.
A jury found Cesar Rangel, Julio Cruz and Martin Murguia (together, defendants) guilty of the second degree murder of David Jones. The jury also found Rangel guilty of active gang participation and found true the gang enhancement.
Rangel alone argues his active gang participation conviction must be reversed because the three-year statute of limitation expired when he was charged in 2005 with this offense and first degree murder after Jones died in 2002 from his injuries. Alternatively, Rangel argues Penal Code section 654 bars his sentence for the gang participation offense. Finally, he argues his attempted murder conviction from 2000 must be vacated.
Unless otherwise noted, all statutory references are to the Penal Code.
Rangel and Cruz jointly argue their abstracts of judgment should be corrected to show the proper custody credits the trial court awarded them for time served.
Cruz and Murguia together argue the trial court erred when, during the subsequent murder trial, it allowed into evidence their former guilty pleas to the attempted murder of Jones.
Lastly, Murguia alone argues the trial court's minute order should be corrected to reflect it vacated his guilty plea to the attempted murder of Jones.
The People concede that the 2000 attempted murder convictions of defendants, along with the attached great bodily injury enhancements, should be vacated. The People also concede the abstracts of judgment for Rangel and Cruz should be corrected to reflect the custody credits awarded them by the trial court. Finally, the People concede the minute order in Murguia's case should be corrected to reflect the trial court vacated his guilty plea to attempted, premeditated murder.
Otherwise, the People contend Rangel's conviction for active gang participation was neither time-barred nor is his sentence for that offense precluded under section 654. The People also contend the trial court properly admitted into evidence in the murder trial the prior guilty pleas of Cruz and Murguia to the attempted murder of Jones.
As to Rangel alone, we conclude there are factual issues regarding the statute of limitation defense that cannot be resolved on this record. As such, we remand that issue to the trial court to hold an evidentiary hearing consistent with this opinion regarding whether the prosecution of Rangel for the active gang participation offense was time-barred. (See People v. Williams (1999) 21 Cal.4th 335, 341.) We further conclude Rangel's abstract of judgment should be amended to reflect the trial court's award of 3, 560 days as custody credit for time served.
As to Cruz alone, we conclude his abstract of judgment should also be amended to reflect the 3, 560 days of credit he too was awarded by the trial court for time served.
As to Cruz and Murguia, we conclude the trial court did not err when it admitted during their murder trial their prior guilty pleas to the attempted, premeditated murder of Jones.
As to Murguia alone, we conclude the trial court's October 2009 minute order should be corrected to reflect that the trial court vacated his "plea case" for the attempted, premeditated murder of Jones.
Finally, we conclude defendants' attempted murder convictions and attached great bodily injury enhancements should be vacated.
In all other respects, the judgments of convictions of defendants are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
We review the facts in the light most favorable to the judgments of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
On December 4, 1999, defendants, each 15 years of age, went to a large party as uninvited guests. During the party, defendants approached Rafael Sepulveda, one of the party guests, and tried to fight him. Sepulveda, who lived nearby, ran home to change his clothes. Defendants followed Sepulveda. After changing, Sepulveda headed back to the party when defendants again confronted him and wanted to fight him for no apparent reason. Just as they were starting to fight, Sepulveda's brother-in-law stepped in and told defendants to leave Sepulveda alone. Sepulveda went back to the party, while defendants remained outside.
Then 13-year-old Arlene M. was also at the party. She was friends with Rangel. Arlene testified that Rangel previously told her that he was a member of the Clique Los Primos street gang. Several minutes after the confrontation between defendants and Sepulveda, Arlene went outside to be picked up by her mother. While outside, she saw an African-American man, later identified as then 46-year-old Jones, riding his bicycle past the bus stop across the street. As Jones was passing the bus stop, Arlene saw defendants pull Jones off his bicycle and begin kicking and hitting him. When Jones attempted to flee, defendants surrounded him and continued to kick and hit him.
Arlene ran back inside the house because she was afraid. About five minutes later, she went back outside and saw Rangel continuing to beat Jones. Despite the fact Jones was lying on the ground and not moving, defendants continued to violently kick Jones in the side and in the head. Arlene's younger sister was also at the party and she too saw Rangel and "two other boys" attacking Jones.
Adriana Cruz (Adriana) was driving her car at about 9:00 p.m. on the night Jones was attacked. Adriana saw three Hispanic males attacking an African-American male who was lying on the ground. As Adriana drove by, one of the Hispanic males raised up his hands at her, which she perceived as a challenge. Adriana subsequently viewed a photographic lineup and positively identified Rangel as one of the three attackers of Jones and the individual who challenged her.
Roberto Del Toro also witnessed the attack on Jones. Del Toro, a nearby resident, saw defendants taking turns attacking Jones and stomping on his head with their feet. Del Toro told his wife to call 911 and observed defendants attack Jones for another three to five minutes.
When police arrived, they found Jones lying in the street. He was unconscious, suffered a cut over his right eye and his face was covered in blood.
Jones sustained severe brain damage from the attack and was comatose on admission to the hospital. Jones was unable to walk and eat and breathe on his own. Although he originally responded to people, as time went on he stopped being able to respond. Jones died in late June 2002 from his injuries.
Following Jones's attack, police interviewed Rangel and Murguia. Murguia admitted that he attacked Jones because he believed that Jones might be a 1200 Blocc Crip gang member who was in the wrong "hood." Rangel admitted that he was at the party, but denied attacking Jones. Rangel later told police that he saw his "homeboy" Jose Lopez, who he claimed lived in Las Vegas, and Jones get into a fight. Rangel admitted he saw Jones lying in the street after the fight, but claimed he merely tapped Jones with his foot to determine if Jones was conscious. Rangel also admitted he threw his hands up in the air at a passing motorist.
In May 2000, the Riverside County District Attorney filed an information charging defendants with the attempted murder of Jones (§§ 187, subd. (a) & 664); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)); aggravated mayhem (§ 205); and torture (§ 206). The information also alleged the attempted murder was premeditated and deliberate (§ 664, subd. (a)) and included a great bodily injury enhancement (§ 12022.7, subd. (b)).
In September 2000, Cruz and Murguia (but not Rangel) pled guilty to attempted, premeditated murder and admitted the great bodily injury enhancement in exchange for dismissal of the remaining counts. Cruz and Murguia were sentenced to indeterminate life sentences. Rangel pled not guilty. A jury subsequently found Rangel guilty of attempted premeditated murder and found true the great bodily injury enhancement.
The People have requested that this court take judicial notice of the records and files in case No. E028822, which involved Rangel's earlier appeal to Division Two of this court. The People made the request for judicial notice in connection with Rangel's argument that his conviction for active gang participation was barred by the applicable statute of limitation, discussed post. Murguia, but not Rangel, opposed that request as overbroad and argued for partial denial of the request because the People did not attach the documents from case No. E028822 they wanted judicially noticed. In light of our decision post, we decline to rule on the People's request, although we agree that to the extent the People believed there were specific documents to be judicially noticed in case No. E028822, at a minimum the People should have attached those documents to their request.
In June 2008 after Jones died from his injuries, the Riverside County District Attorney filed an amended information charging defendants with first degree murder, among other charges. A jury subsequently found defendants guilty of second degree murder (§ 187, subd. (a)) and found Rangel guilty of active participation in a criminal street gang (§ 186.22, subd. (b)). The jury also found Rangel and Murguia committed the murder for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b).
The trial court in October 2009 sentenced Rangel to state prison for 18 years to life and sentenced both Cruz and Murguia to prison for 15 years to life.
The trial court sentenced Rangel to a 15-year-to-life term on the second degree murder conviction, and further imposed a consecutive three-year term on the gang participation conviction, for a total of 18 years to life. The trial court did not increase Rangel's sentence for the gang enhancement because section 186.22, subdivision (b)(5) provided for a 15-year minimum term, and that term was already imposed as a result of the second degree murder conviction. (See People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
DISCUSSION
A. Rangel
1. Conviction for Gang Participation
a. Additional Background
Riverside Police Officer Joe Miera testified as an expert on street gangs. Officer Miera opined that Rangel and Murguia were members of the Cliques Los Primos street gang, which is a subset of the East Side Riva street gang that at the time of Jones's attack had about 500 members. Rangel admitted his gang affiliation on various occasions and had gang tattoos consistent with that affiliation. Rangel's gang moniker is "Droppy." The location where Jones was attacked is part of the East Side Riva gang territory. Officer Miera testified the East Side Riva gang and the 1200 Blocc Crips, an African-American gang, were rivals. He also testified the primary activity of the East Side Riva gang is "protecting their territory" and to do so, they engage in violent assaults against African-Americans and rival 1200 Blocc Crips gang members.
Officer Miera also testified that respect among members is very important in a gang. He opined that Rangel attacked Jones for the benefit of the East Side Riva street gang because it involved an attack on an African-American and such an attack would bolster Rangel's reputation in the gang.
On February 25, 2005, the prosecutor filed a felony complaint charging Rangel with first degree murder. The 2005 felony complaint also included a charge of active gang participation and a gang enhancement, among other charges and enhancements. Rangel was arraigned on March 10, 2005, on the 2005 felony complaint.
b. Parties' Contentions
Rangel contends for the first time on appeal that his prosecution for active gang participation was time-barred under the applicable statute of limitation. (See People v. Williams, supra, 21 Cal.4th at p. 341 ["when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time, " including on appeal].)
The parties agree the active gang participation offense carries a three-year statute of limitation. (§ 801 ["Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense."]; § 186.22, subd. (a) [gang participation offense carries a maximum term of three years in state prison].) As such, the limitation period for this offense began to run on December 4, 1999—the night Jones was attacked—and the prosecution would have had to "commence" before December 4, 2002.
The People contend the statute of limitation was tolled on the active gang participation offense pursuant to subdivision (b) of section 803, which provides: "No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter." (Italics added.) The People contend the active gang participation offense was part of the "same conduct" that resulted in the attack on Jones that night in December 1999. They further contend that pursuant to "section 804, " the statute of limitation on that offense was tolled from February 10, 2000, "when Rangel was arraigned" on the felony, to October 2, 2009, when the "prosecution was dismissed" by the trial court.
Thus, other than the period between the date of the attack, December 4, 1999, and the date Rangel was originally arraigned on the felony complaint, February 10, 2000, the People contend the statute of limitation on the active gang participation offense was tolled.
Alternatively, the People contend that if the initial prosecution, and therefore, tolling of the limitation period, ended when the remittitur was issued on May 21, 2002, "the gang offense is still not time barred." Under that scenario, the People contend that "[t]wo months and six days had elapsed between the time the statute starting running on the date of the offense [December 4, 1999] and the time when it was tolled on the day Rangel was arranged [February 10, 2000]. If the statute [of limitation] then began running again when the remittitur was issued on May 21, 2002, and ran until the new complaint alleging the gang offense was filed on February 25, 2005, this would amount to an additional two years, nine months, and four days. Adding to that the previous two months and six days, the total time the statute ran was two years, eleven months, and ten days, within the three year statute of limitations."
c. Whether Prosecution of Rangel for the Active Gang Participation Offense and for the Initial Violent Attack on Jones were based on the "Same Conduct"
As a threshold matter, we agree with the People that the active gang participation offense involved prosecution of the "same conduct" for purposes of subdivision (b) of section 803 as the attack of Jones. "The tolling provision contained in subdivision (b) of section 803 'continues the substance of former Section 802.5.' (Cal. Law Revision Com. com., 50 West's Ann. Pen. Code (1985 ed.) foll. § 803, p. 203.) Former section 802.5 provided in pertinent part: '[N]o time during which a criminal action is pending is... part of any limitation of... time for recommencing that criminal action in the event of a prior dismissal of that action, subject to... Section 1387.' (Stats. 1981, ch. 1017, § 3, pp. 3927-3928; see Stats. 1984, ch. 1270, § 1, p. 4335 [repealing].)" (People v. Terry (2005) 127 Cal.App.4th 750, 768, italics added.)
"As the Law Revision Commission comment to section 803 explains: 'The limitation of former Section 802.5 that permitted recommencing the same "criminal action" is replaced by a broader standard of prosecution for the "same conduct, " drawn from Model Penal Code § 1.06(6)(b). The former law that provided tolling only for a subsequent prosecution for the same offense was too narrow, since the dismissal may have been based upon a substantial variation between the previous allegations and the proof....' (Cal. Law Revision Com. com., 50 West's Ann. Pen. Code [1985 ed.] foll. § 803, p. 203.)" (People v. Terry, supra, 127 Cal.App.4th at p. 768, fn. omitted.)
"Subdivision (6) of section 1.06 of the Model Penal Code states in pertinent part: 'The period of limitation does not run: [¶]... [¶] (b) during any time when a prosecution against the accused for the same conduct is pending in this State.' (Model Pen. Code & Commentaries, part I, p. 85.) The Model Penal Code comment explains that subdivision (6)(b) of section 1.06 'tolls the applicable statute during pendency of a prosecution in order to provide for the contingency of the trial's termination prior to final adjudication or reversal on appeal.' (Model Pen. Code & Commentaries, supra, com. 5 to § 1.06, p. 99.) It also states: 'A prosecution is considered 'pending' during that period of time beginning with the day the prosecution is commenced, as defined by Subdivision (5), and ending with the day it is dismissed by final adjudication.' (Id. at p. 100.) Subdivision (5) of section 1.06 of the Model Penal Code provides: 'A prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.' (Model Pen. Code & Commentaries, p. 84.)" (People v. Terry, supra, 127 Cal.App.4th at p. 768, fn. 7.)
"Nothing in the language or the legislative history of section 803, subdivision (b), suggests that it was intended to function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant against the same victim during the same time frame as an offense charged in a pending prosecution. The tolling provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct, even when acts were proven by 'generic' testimony." (People v. Terry, supra, 127 Cal.App.4th at p. 769.)
" ' "The test of the 'same conduct, ' involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute." ' [Citation.] " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1441.) "Applying that 'flexibility of definition, ' the appellate court in [People v. Bell (1996) 45 Cal.App.4th 1030, 1064, ]determined that charges of forgery and false filings of petitions for bankruptcy or grant deeds were based on the 'same conduct' as rent skimming charges where 'the forgery and false filings were merely aspects of [the] rent skimming scheme.' [Citation.] Similarly, in People v. Greenberger (1997) 58 Cal.App.4th 298[, 369], the appellate court determined that kidnapping and murder charges were based on the 'same conduct' where 'the facts... clearly establish[ed] that the kidnapping was part of the same conduct that resulted in [the] murder.' " (People v. Hamlin, supra, 170 Cal.App.4th at p. 1441 [concluding the child abuse charges against defendant "in both cases were based on the same conduct, " and thus the 2004 prosecution "tolled the statute of limitations on the misdemeanor child abuse charges of which defendant was convicted"].)
Here, the evidence in the record shows that Rangel was a professed member of the Hispanic street gang Cliques Los Primos at the time he attacked Jones in December 1999; that one of the primary activities of the Cliques Los Primos street gang was violent assaults against rival 1200 Blocc Crips gang members and African-Americans; that Rangel's attack of Jones likely bolstered Rangel's reputation in the street gang; that Rangel's co-defendant Murguia admitted he joined in on the attack of Jones because he thought Jones might be a 1200 Blocc Crips gang member and because Jones was riding his bicycle in Cliques Los Primos territory; and that Rangel had no other reason or motive to attack Jones other than because of Rangel's gang affiliation, inasmuch as neither Rangel nor his co-defendants knew Jones or had any previous dealings with Jones, and Jones was merely riding his bicycle when defendants attacked him unprovoked. We thus conclude the active gang participation offense involved prosecution of the "same conduct" for purposes of subdivision (b) of section 803 as the attack of Jones.
d. Whether Prosecution of the Offense Was Timely Commenced
The People rely on section 804 for the proposition that the prosecution commenced (i) on February 10, 2000 when Rangel initially was arraigned on the felony complaint and (ii) on February 25, 2005, when the new felony complaint alleging the gang offense was filed.
We note the People did not specify in their brief which subdivision in section 804 they are relying on in making the above contentions. However, it appears they are relying on subdivision (c) of that statute. Section 804 provides in relevant part: "Except as otherwise provided in this chapter, for the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs: [¶]... [¶] (c) The defendant is arraigned on a complaint that charges the defendant with a felony."
The problem with the People's reliance on this language in subdivision (c) of section 804 is that it did not exist when Rangel attacked Jones in 1999 or when the prosecutor charged Rangel with the offense of active gang participation in 2005. Effective January 1, 2009, subdivision (c) of section 804 was amended to include the defendant's arraignment "on a complaint that charges the defendant with a felony" as one of the events that commences the prosecution. (Stats. 2008, ch. 110 (Sen. Bill No. 610), § 1.) It was thus improper for the People to rely on the 2009 amendment to section 804 in discussing when the applicable statute of limitation "commenced." (See § 3 ["No part of it is retroactive, unless expressly so declared."]; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 ["in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature... intended a retroactive application"].)
When Rangel attacked Jones in December 1999, section 804 stated a prosecution was "commenced" when "any of the following" events occurred: (a) when an indictment or information was filed; (b) a complaint was filed charging a misdemeanor or infraction; (c) a case was certified to the superior court; or (d) "[a]n arrest warrant or bench warrant [was] issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." (See People v. Angel (1999) 70 Cal.App.4th 1141, 1145-1146.) On this record, we cannot tell when the prosecution commenced for purposes of then-applicable section 804.
In light of the inadequate record concerning when the prosecution "commenced" under then-applicable section 804 for the attack on Jones in 1999, which in part can be explained because Rangel waited until this appeal to raise the statute of limitation bar, and in light of the People's misplaced reliance on current subdivision (c) of section 804 and its operation, we conclude the "fairest solution" is to remand the matter for a hearing to determine whether the active gang participation offense is time-barred. (See People v. Williams, supra, 21 Cal.4th at p. 341, fn. omitted ["If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing."] and at p. 345 [where a prosecutor files an information that on its face appears time-barred and the record does not establish otherwise, the "fairest solution is to remand the matter to determine whether the action is, in fact, timely"].) "[I]f on remand[] the trial court determines the action is not time-barred, the conviction will stand despite the prosecution's error in filing an information that appeared time-barred...." (Id. at p. 346.)
The People argue that under current subdivision (c) of section 804 it was the filing of the felony complaint against Rangel in February 2005 that "commenced" the prosecution. As this subdivision makes clear, however, it is the arraignment on that complaint—not its filing—that triggers commencement of the prosecution. In addition, the case the People primarily rely on its discussion of this issue, People v. Terry, supra, 127 Cal.App.4th at page 764 and footnote 5, clearly states this rule when it noted that the "filing of a criminal complaint does not generally commence the prosecution of a felony for statute of limitation purposes."
2. Whether Section 654 Prohibited Imposition of a Consecutive Sentence for Rangel's Gang Participation Conviction
Rangel next contends for the first time that his murder and gang participation offenses "arose out of a single incident, " and thus under section 654 the trial court should have stayed the three-year term for gang participation, rather than impose that sentence consecutively with the 15-year-to-life term on the second degree murder conviction.
Although Rangel did not object to his sentence, we note the forfeiture doctrine typically does not apply to questions involving the applicability of section 654, as an unauthorized sentence may be corrected on appeal even without an objection in the trial court. (See People v. Hester (2000) 22 Cal.4th 290, 295 ["Ordinarily, a section 654 claim is not waived by failing to object below."].)
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
We decline to reach the section 654 issue in this appeal because if the trial court on remand finds the gang participation offense is time-barred, the section 654 issue would be moot and our guidance on that issue in this opinion would be irrelevant. (See People v. Handley (1970) 11 Cal.App.3d 277, 282 [" 'Whatever may be said in an opinion that is not necessary to a determination of the question involved is to be regarded as mere dictum.' "], disapproved on another ground as stated in People v. Diaz (1978) 22 Cal.3d 712, 716-717.)
We note also there currently is a split of authority in this state on whether a defendant can be punished for violating section 186.22, subdivision (a) and a separate criminal statute. (See e.g., People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315 [applying subdivision (a) of section 654 and refusing to punish defendant for both crimes because, among other things, "the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation"]; compare with People v. Mesa, review granted Oct. 27, 2010, S185688 [Fourth Dist., Div. One] [rejecting approach of People v. Sanchez because, among other reasons, in enacting section 186.22, subdivision (a) the "Legislature meant to recognize an independent crime—gang participation—rather than a species of dependent criminal culpability."].)
3. Remaining Contentions
Rangel contends and the People concede that Rangel's abstract of judgment should be corrected to state that Rangel was awarded 3, 560 days of credits for actual time served in custody based on the trial court's order of October 30, 2009. Finally, Rangel contends his conviction for the attempted murder of Jones and the attached great bodily injury enhancement should have been vacated in light of his conviction for second degree murder. The People agree, and note the minute order from the October 2, 2009 sentencing hearing also should be corrected to show the attempted murder conviction and the attached enhancement were vacated.
This court in June 2010 granted Cruz's unopposed request for judicial notice which request, unlike the People's, included the documents sought to be judicially noticed.
Cruz contends and the People agree that Cruz's abstract of judgment should be corrected to show he was awarded 3, 560 days of credit for actual time served in custody, and the corrected abstract should then be forwarded to the Department of Corrections.
C. Cruz and Murguia
1. Admission of Guilty Pleas of Cruz and Murguia to Attempted Murder
Cruz and Murguia together contend the trial court erred when it admitted in the murder trial their prior guilty pleas to the attempted, premeditated murder of Jones.
a. Additional Background
Before trial on the murder charges, the prosecutor moved under Evidence Code section 1220 to admit into evidence the guilty pleas of Cruz and Murguia to the attempted, premeditated murder of Jones. The prosecutor sought to introduce the certified copy of a minute order reflecting those pleas to prove the attempted commission of the offense under Evidence Code section 1280.
Evidence Code section 1220 provides in part: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he [or she] is a party...."
Evidence Code section 1280 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Cruz and Murguia objected to the admission of the pleas on a variety of grounds, including they were not made knowingly, intelligently and voluntarily; admission of the pleas was fundamentally unfair and constituted unequal treatment under the Fifth and Fourteenth Amendments to the U.S. Constitution; and former defense counsel were ineffective at the time Cruz and Murguia entered their pleas because they each provided their clients inaccurate information regarding the terms of imprisonment both faced as a result of their guilty pleas, they each failed to inform both defendants their pleas could be used as admissions in a subsequent trial for the murder of Jones, and they each failed to secure from the prosecutor an agreement not to use the pleas in any subsequent prosecution.
In ruling on the issue, the court read from the copies of the plea forms signed and initialed by each defendant:
" 'All the promises made to me written on this form are stated in open court. No one has made any threats to me or anyone close to me or placed any pressure of any kind on me in order to make me plead guilty. I have read and understood the plea agreement set forth on the back of this form.' "
The trial court further noted that in exchange for the guilty pleas of Cruz and Murguia, other charges, including mayhem and torture, were dismissed; that both defendants were separately represented by counsel at the time they pled; and that each of their counsel also signed their guilty plea form and acknowledged in that form that their client understood his constitutional rights, had an adequate opportunity to discuss the case with counsel and understood the consequences of his plea.
The trial court also found there was a factual basis for the plea, and thus the pleas were "a confession as well as an admission" by each defendant. This was confirmed during trial, when Murguia called Hon. Jorge Cruz Hernandez as a defense witness. Now a superior court judge in Riverside County, Hernandez testified he represented Murguia when he accepted the plea in 2000.
Confusingly, the People in their brief claim that Hernandez represented Cruz when defendants Cruz and Murguia pled guilty in 2000. The record clearly shows, however, that Hernandez represented Murguia.
Hernandez testified Murguia entered his guilty plea to attempted, premeditated murder before the trial court, when he also admitted a great bodily injury allegation. Hernandez testified there was a "factual basis" for Murguia's plea, which he explained "is when the Court will ask [the defendant] whether the charge is true, and the language of the charge would be read to the individual. For example, an assault. Is it true that on September 1st, 1999, you [defendant] did in fact assault Jane Doe with the intent to commit great bodily injury[?] So they would mirror the language of the charge and ask the individual is it true that you did X, reading it verbatim from the charging document. And then the individual will answer yes or no."
Hernandez testified Murguia answered "yes" when asked by the court whether he committed attempted, premeditated murder and whether the plea was knowing and voluntary and not the result of threats or promises not included in the plea. Although Hernandez acknowledged it was "quite rare" to recommend a client accept a life charge, he recommended that Murguia take the plea because "[t]hree of the charges [Murguia was facing] were life charges.... As a criminal defense attorney, mostly what we try to do is minimize the damage. And here to minimize the damage in this case would be for Mr. Murguia to plead guilty to the attempt murder and then have the other two life counts dismissed."
Hernandez noted that if Murguia was convicted of the three life counts and the great bodily injury enhancement was found true, Murguia would be eligible for parole in 26 years, as opposed to being eligible for parole in eight or nine years under the plea agreement.
Hernandez testified Cruz, who had separate legal counsel, received the exact same deal and pled guilty to the same charges as Murguia.
After a lengthy oral argument, the court noted it was uncomfortable with Cruz and Murgia's arguments the pleas were involuntary and they lacked effective assistance of counsel because those arguments "amount[] to a collateral attack on a judgment from another case by the same level court...." The court also noted neither defendant raised either argument on appeal, despite being about "[n]ine years down the road" from when the pleas were taken. The court recessed the hearing to give trial counsel the opportunity to conduct further research and analysis on attacking the pleas under such circumstances.
When the hearing continued, counsel acknowledged they had no additional authority on the issue. The court then said it found federal cases and reviewed a case from New York on a similar issue found by the People, and ruled the guilty pleas were admissible in the murder trial. However, the court suggested the pleas be "sanitize[d], " and ultimately the parties stipulated to the following: "On September 11th, 2000, defendant[s] [Cruz and Murguia] admitted to the attempt murder of David Jones on or about December 4th, 1999, and further admitted that attempt was willful, deliberate, and premeditated."
b. Analysis
We conclude the trial court did not err when it allowed the guilty pleas of Cruz and Murguia to attempted, premeditated murder of Jones to be admitted in evidence during the murder trial. First, we note from the parties' briefs that they still are unable to cite any authority allowing them to wait nine years to collaterally attack in the trial court and in this court their pleas on the basis they were involuntary or were the result of prior counsel's ineffectiveness, and thus inadmissible in their murder trial. This is not altogether surprising, in light of the fact there is contrary authority preventing such collateral attack under circumstances similar to those here. (See Garcia v. Superior Court (1997) 14 Cal.4th 953, 956, citing Custis v. United States (1994) 511 U.S. 485 [114 S.Ct. 1732] ["[W]e conclude that a criminal defendant may not challenge a prior conviction [from a guilty plea] on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense" because "[c]ompellng a trial court in a current prosecution to adjudicate this type of challenge to a prior conviction generally would require the court to review the entirety of the record of the earlier criminal proceedings, as well as matters outside the record, imposing an intolerable burden upon the orderly administration of the criminal justice system."] italics added.)
In any event, even if such a challenge was permissible, we reject Cruz's and Murguia's contention that their pleas were defective because they were not advised they could be used in the future as an admission, if Jones died. "When a criminal defendant chooses to plead guilty..., both the United States Supreme Court and this court have required that the defendant be advised on the record that, by pleading, the defendant forfeits the constitutional rights to a jury trial, to confront and cross-examine the People's witnesses, and to be free from compelled self-incrimination. (Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709]; [citation].) In addition, this court has required, as a judicially declared rule of state criminal procedure, that a pleading defendant also be advised of the direct consequences of his plea. [Citations.] If the consequence is only collateral, no advisement is required." (People v. Gurule (2002) 28 Cal.4th 557, 633-634.)
Cruz and Murguia cite no authority holding that the future possibility a victim may die, which results in a second prosecution for murder in the place of an attempted murder conviction, constitutes a "direct consequence" of a guilty plea. (See e.g., People v. Gurule, supra, 28 Cal.4th at p. 634.) In this case, the victim died in late June 2002, almost two years after both both defendants pled guilty. We conclude the possibility Jones would die in the future and as such, the possibility the guilty pleas of Cruz and Murguia to attempted, deliberate murder of Jones could be used in a subsequent murder trial, were a collateral consequence of their pleas. (See ibid. ["Although the death penalty is the ultimate punishment in our criminal scheme, ... when defendant pleaded no contest to murdering [the victim] his future eligibility for that penalty was only a possible collateral consequence of his plea, " and as such, "failing to advise [defendant] of that possibility when he pleaded was not error."]; see also People v. Latham (1997) 90 N.Y.2d 795, 797 [reversing intermediate court of appeal's decision that the failure to advise defendant that his guilty plea for attempted murder of his girlfriend prevented the use of that plea in a subsequent murder trial after she died from defendant's attack, reasoning that defendant failed to make use of the available procedural vehicles to challenge the voluntariness of his plea and noting that "[a]lthough a defendant must be advised of direct consequences [of a plea], a defendant need not be advised of collateral consequences before it can be said that the defendant's plea ' "represents a voluntary and intelligent choice among the alternative courses of action open to a defendan" ' [Citations.]".)
Moreover, Cruz and Murguia are unable to cite to any evidence in the record to show their guilty pleas in 2000 were involuntary, and instead conclude there is substantial evidence in the record showing otherwise, as found by the trial court and summarized ante. We likewise conclude there is no evidence that either defendant received ineffective assistance of counsel when they pleaded guilty to attempted, premeditated murder in exchange for the dismissal of other counts. Indeed, without the plea, each defendant was facing multiple life counts if convicted of all charges and the evidence of guilt against each defendant was strong. (See People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
As to the remaining claims, we reject Cruz's argument that as a matter of contract law his guilty plea could not be used in a subsequent murder trial because, he argues, when the prosecutor filed the murder charges the prosecutor effectively rescinded the plea. Initially, we note Cruz does not dispute in this appeal that the prosecutor had the right to charge him for the murder of Jones after Jones died from his injuries. In any event, we disagree with Cruz's premise that the murder charges had the effect of rescinding the plea agreement and returning him to the position he was in before he willingly entered into that agreement.
Cruz moved to dismiss the murder charge on the basis of double jeopardy. The trial court denied his motion. Cruz has not challenged that ruling in this appeal.
First, a "guilty plea admits every element of the charged offense and constitutes a conviction...." (See In re Chavez (2003) 30 Cal.4th 643, 649; see also People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.) The fact the prosecutor filed murder charges against Cruz and his co-defendants does not change the fact that Cruz already was convicted of attempted murder, per his voluntary plea. Second, if Cruz was not convicted of murder, his attempted murder conviction based on the plea would have been reinstated. Thus, Cruz was not returned to the position he was in before he pled guilty to the attempted murder of Jones.
Finally, we reject Murguia's argument under section 1192.4 that his plea was "withdrawn" within the meaning of this statute and thus could not be admitted into evidence at his subsequent murder trial. Section 1192.4 provides: "If the defendant's plea of guilty pursuant to Section 1192.1 or 1192.2 is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals." (Italics added.)
Thus, a plea is "withdrawn" for purposes of section 1192.4 (and similarly, in section 1192.5) if the plea is "not accepted by the prosecuting attorney and approved by the court." (See § 1192.4.) Clearly, this is not the situation here, where the plea was accepted and approved, and Murguia served several years in prison based on that plea and subsequent conviction. We thus conclude the plea was not "withdrawn" within the plain meaning of section 1192.4 when the prosecutor filed murder charges against Murguia after Jones died from his injuries.
As such, we conclude cases interpreting section 1192.4 (and section 1192.5), on which Murguia relies, are inapposite. (See e.g., People v. Scheller (2006) 136 Cal.App.4th 1143, 1151 [concluding statements made by defendant to a probation officer were inadmissible once defendant, by stipulation, withdrew her guilty plea, and noting the result "might be different if, instead of defendant withdrawing her guilty plea, her conviction on the plea had been reversed on appeal"]; People v. Campbell (1977) 66 Cal.App.3d 806, 808 [defendant's offer to plead guilty and inculpatory statements made during arraignment in the municipal court were inadmissible at trial pursuant to Evidence Code section 1153, which provides in part that evidence of "an offer to plead guilty to the crime charged or to any other crime... is inadmissible"]; People v. Tanner (1975) 45 Cal.App.3d 345, 348, 351-352 [concluding it was error to admit letters sent by defendant to the prosecutor that were written in an effort to induce the People to offer defendant a better plea bargain]; People v. Quinn (1964) 61 Cal.2d 551, 553 [concluding it was error to admit defendant's guilty plea after defendant was allowed to withdraw his plea, and the other charges that were dropped based on that plea were reinstated].)
D. Murguia
Finally, Murguia contends and the People agree the trial court's October 2, 2009 minute order should be corrected to reflect that the trial court vacated his "plea case" for the attempted, premeditated murder of Jones in case No. RIF089982.
DISPOSITION
As to Rangel alone, we conclude there are factual issues regarding the statute of limitation defense that cannot be resolved on this record. As such, we remand that issue to the trial court to hold an evidentiary hearing, consistent with this opinion, regarding whether the prosecution of Rangel for the active gang participation offense was time-barred. We further conclude Rangel's abstract of judgment should be amended and a copy of that amended judgment forwarded to the California Department of Corrections to reflect the trial court's award of 3, 560 days as custody credit for time served.
As to Cruz alone, we conclude his abstract of judgment also should be amended and the amended abstract of judgment also forwarded to the California Department of Corrections to show Cruz was awarded 3, 560 days of custody credit by the trial court.
As to Cruz and Murguia, we conclude the trial court did not err when it admitted during the murder trial their prior guilty pleas to attempted, premeditated murder of Jones.
As to Murguia alone, we conclude the trial court's October 2009 minute order should be corrected to show the trial court vacated his "plea case" for the attempted, premeditated murder of Jones and the abstract of judgment should be amended accordingly and forwarded to the California Department of Corrections.
As to Rangel, Cruz and Murguia, we conclude their attempted murder convictions and attached great bodily injury enhancements, which date back to 2000 (before Jones died from his injuries), should be vacated and their abstracts of judgment amended accordingly and forwarded to the Department of Corrections.
In all other respects, the judgments of conviction of Rangel, Cruz and Murguia are affirmed.
WE CONCUR: McINTYRE, J., AARON, J.