Opinion
G043219
01-30-2012
THE PEOPLE, Plaintiff and Respondent, v. ZEUS MURILLO SERRANO, Defendant and Appellant.
Donald W. Jordan for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Collette C. Cavalier, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF106251)
OPINION
Appeal from a judgment of the Superior Court of Riverside County, Jean P. Leonard, Judge. Affirmed.
Donald W. Jordan for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of special circumstances murder and other crimes stemming from the shooting death of 13-year-old Markess Lancaster. On appeal, he contends: 1) The Riverside District Attorney's Office should have been disqualified from prosecuting the case; 2) reversal is compelled due to evidentiary error; and 3) the trial court erred in denying his motion to suppress. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
On the afternoon of October 5, 2002, appellant was driving around Riverside in a pickup truck with fellow East Side Riva gang members Daniel Salgado, Jesus Gomez, Ricardo Ruiz and Robert Ariza. At one point, appellant's group stopped at a liquor store, and while they were there, a red Camaro pulled into the parking lot. Nothing amiss transpired at the liquor store, but appellant's group suspected the three African-Americans in the Camaro might be members of a rival gang known as the 1200 Blocc Crips. Therefore, they started flashing gang signs, and appellant followed the Camaro as it left the parking lot.
Sensing danger, the Camaro's driver Tyshawn Guidry tried to lose appellant by speeding through several red lights, but he couldn't get away. When he slowed down to make a right-hand turn, the truck pulled alongside him, and Salgado fired five or six shots at the Camaro. One of the shots fatally wounded Guidry's 13-year-old brother Markess Lancaster, who was in the backseat of the vehicle.
At trial, Gomez testified that during the chase, he voiced reservations about shooting Lancaster because he was so young, but appellant and the others were undeterred by Lancaster's age. Gomez also claimed the people in the Camaro were flashing gang signs, and at one point he saw front seat passenger Raymond Atkins duck down and reach into the compartment of his door. Gomez testified that when he saw this, he yelled out, "I think they're reaching for something." However, Gomez admitted he never saw a gun in the Camaro. He also admitted Atkins did not duck down until after Salgado had already extended his gun outside the window of the pickup truck.
Travis Lawson was working outside his house when the shooting occurred. He testified that after hearing the initial shots, he looked up and saw a black man hanging out the window of a car firing a handgun in the direction of a pickup truck. However, Guidry and Atkins testified no one in their car had a gun, and the results of their gunshot residue tests were negative. While admitting they associated with people who were in the Crips, they claimed they were not gang members themselves and did not flash any gang signs prior to the shooting.
The jury convicted appellant of conspiracy to commit murder, first degree murder, two counts of attempted premeditated murder, shooting at an occupied vehicle, discharging a firearm from a motor vehicle and two counts of unlawful gun possession. The jury also found true various allegations, including the special circumstances allegations that the murder was carried out to further the activities of appellant's gang and was achieved by means of discharging a firearm from a motor vehicle. Although the prosecution sought the death penalty, the jury fixed the penalty for murder at life without parole. In addition to that penalty, the trial court sentenced appellant to multiple indeterminate life terms, plus a determinate term of 14 years.
I
Prior to trial, appellant moved to recuse the Riverside District Attorney's Office on the ground District Attorney Rod Pacheco had a conflict of interest in the case. Particularly, appellant claimed Pacheco's decision to seek the death penalty was made in response to a thinly-veiled death threat that was leveled against him by appellant's gang late in the case. The trial court rejected this claim and denied appellant's motion. Appellant claims this was error, but we disagree.
Following his arrest on October 15, 2002, appellant was charged with murder under three different special circumstances that made him eligible for the death penalty. Specifically, the prosecution alleged appellant committed murder 1) to further the activities of his gang, 2) by means of shooting from a motor vehicle, and 3) because of the victim's race. (Pen. Code, § 190.2, subd. (a).) Gomez and Ruiz were similarly charged, but Salgado, the shooter, remained at large.
Unless noted otherwise, all further statutory references are to the Penal Code.
By 2007, the case had still not gone to trial. Pacheco became the District Attorney of Riverside County in January of that year, and as part of his administration he instituted a new "staffing" policy for murder cases involving special circumstances. The policy called for the inclusion of input from the victim's family and the investigating agency in determining whether the death penalty should be pursued in any given case. Pacheco ordered all special circumstances cases pending in his office to be staffed under this new policy.
In August 2007, Pacheco's office began making arrangements for appellant's case to be staffed. Around that same time, in an unrelated case, Pacheco's office filed for a civil injunction against appellant and over 100 other members of his gang, East Side Riva (ESR). Flanked by the Riverside Chief of Police, Pacheco announced the filing on August 24, 2007, on a street corner located in the heart of ESR territory.
The next day, August 25, an ad appeared in the classified section of the Press-Enterprise, a Riverside newspaper. The ad announced ESR was having "Big Blowout Going Out Of Business Sale," with the proceeds of the sale going to the "Rod Pacheco Memorial Fund." The ad also included personal information about Pacheco, including his home address.
Within days, it was determined the ad had been placed by Press-Enterprise employee Chandler Cardwell. Cardwell denied being a gang member but was believed to have ties to ESR. On September 5, 2007, he was charged with, inter alia, making a criminal threat and threatening a public officer. The case was prosecuted by the California Attorney General's Office, as Pacheco's office recused itself in the matter. Early on in the proceedings, Cardwell pleaded guilty to making a criminal threat and was sentenced to 16 months in prison. At his sentencing hearing, Pacheco submitted a letter to the court sating he and his family feared for their safety after learning about the ad Cardwell had placed in the paper.
As noted above, the ad appeared on August 25, 2007. Less than three weeks later, on September 12, 2007, appellant's case was staffed and Pacheco decided to pursue the death penalty against him. However, Pacheco decided not to seek the death penalty against Gomez or Ruiz. Gomez ultimately pled guilty in exchange for a sentence of 25 years to life in prison, and Ruiz was tried separately from appellant.
Appellant filed two motions in response to Pacheco's decision to invoke the death penalty against him. First, he claimed the decision amounted to an improper amendment of the charges and would violate his right to a speedy trial. The trial court was troubled by the fact the prosecution had decided to seek the death penalty against appellant so late in the case. However, it noted appellant was eligible for the death penalty from the outset of the case, given the special circumstances allegations. Furthermore, any prejudice resulting from the prosecution's late-coming decision to seek the death penalty could be cured by granting appellant's attorney a continuance to prepare for trial. Therefore, the court denied appellant's motion. Appellant sought writ relief on the issue, but his petition was denied, and he does not renew his challenge to the court's decision on appeal.
Instead, he targets the trial court's decision to deny his subsequent motion to recuse Pacheco's office. The motion was based on both statutory (§ 1424) and constitutional (due process) grounds. Appellant argued that, coming on the heels of the newspaper threat, Pacheco's decision to seek the death penalty was motivated by personal vengeance and his desire to retaliate against appellant's gang for the threat. Defense counsel also asserted the prosecution had assured him it would not seek the death penalty against appellant. However, the prosecutor handling the case declared he had no recollection of saying that, and in fact no decision had been made on the issue until appellant's case was staffed in September 2007. The prosecutor also said he considered appellant to be a key player in the case because he pursued the victims in his truck and positioned his vehicle in a manner that allowed Salgado to shoot and kill Lancaster. In opposing appellant's motion, the prosecution also pointed out appellant's case was staffed consistent with the guidelines Pacheco had established for all of the special circumstances cases pending in his office. The state argued those guidelines properly informed Pacheco's decision to seek the death penalty, and his decision was not motivated by improper considerations.
The trial court agreed. Noting that the process to staff appellant's case was started before Pacheco was threatened, the court found there was nothing in the record to suggest the alleged conflict of interest created by the threat actually affected Pacheco's ability to carry out his duties in a fair and impartial manner. Accordingly, the court denied appellant's motion for recusal. Appellant's petition for writ relief and Supreme Court review on the issue were denied as well.
Appellant contends the trial court erred in denying his motion, but we cannot agree. Recusal of an entire district attorney's office is a disfavored remedy that can only be justified by an "especially persuasive" showing of need. (Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 201.) Under section 1424, a motion to disqualify a district attorney "'may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.' The statute demands a showing of a real, not merely apparent, potential for unfair treatment, and further requires that the potential 'rise to the level of a likelihood of unfairness.' [Citation.]" (People v. Vasquez (2006) 39 Cal.4th 47, 56.)
"On review of the trial court's denial of a recusal motion, „[o]ur role is to determine whether there is substantial evidence to support the [trial court's factual] findings [citation], and, based on those findings, whether the trial court abused its discretion in denying the motion.' [Citations.]" (People v. Vasquez, supra, 39 Cal.4th at p. 56.) Under this standard, the trial court's denial of appellant's recusal motion must be affirmed.
We recognize the timing of Pacheco's decision to seek the death penalty against appellant, coming very late in the case and in the wake of the newspaper threat, was, on its face, problematic. However, as explained, the mere possibility or appearance of a conflict of interest is insufficient to justify a district attorney's recusal; recusal is only required if the purported conflict bears an "actual likelihood of leading to unfair treatment. [Citation.]" (People v. Vasquez, supra, 39 Cal.4th at p. 59; accord Stark v. Superior Court (2011) 52 Cal.4th 368, 415.)
Here, there are several factors which support the conclusion the newspaper threat against Pacheco did not create an actual likelihood of appellant being singled out for unfair treatment because of his membership in ESR. Perhaps the strongest indicator of this is that Pacheco did not pursue the death penalty against Ruiz or Gomez, although, like appellant, they also belonged to ESR. If Pacheco was really out to get revenge against ESR for the newspaper threat, it stands to reason he would not only have sought the death penalty against appellant, but also against Ruiz and Gomez.
And although his decision to seek the death penalty against appellant came late in the case, it is important to keep in mind appellant was charged with special circumstances murder at the outset of the case. This provided him with ample notice he was eligible to receive the death penalty, if convicted. While defense counsel alleged the prosecution had informed him it would not seek the death penalty against appellant, the prosecutor handling the case denied this and stated no decision had been made on the issue of punishment until appellant's case was staffed in September 2007. The evidence further demonstrated that when Pacheco became district attorney, he established a new staffing policy and ordered all of the special circumstances cases pending in his office to be staffed pursuant to that policy. There is no indication appellant's case was signaled out for unfair or retaliatory purposes. In fact, the record shows the prosecutor's office began preparing appellant's case to be staffed before the threat against Pacheco ever appeared in the newspaper.
For all of these reasons, we uphold the trial court's ruling that appellant failed to establish grounds for recusal under section 1424. The ruling enjoys substantial evidentiary support and by no means constitutes an abuse of discretion.
Appellant also contends the court's failure to recuse Pacheco's office violated his right to due process of law and a fair trial. However, "having failed to make a showing sufficient to disqualify the district attorney under section 1424 on identical facts, it is plain that [appellant] could not make the more stringent showing required to establish a violation of due process. [Citation.]" (Stark v. Superior Court, supra, 52 Cal.4th at p. 417.)
Finally, we note that even if appellant's rights under section 1424 were violated by virtue of allowing Pacheco's office to stay on the case, reversal would not be required because appellant suffered no discernible prejudice as a result of Pacheco's decision to seek the death penalty against him. Although Pacheco's decision made appellant eligible for the death penalty, the jury fixed his punishment for murder at life without the possibility of parole. Therefore, there is no cause for reversal. (People v. Vasquez, supra, 39 Cal.4th at pp. 385-389 [violations of section 1424 are not grounds for reversal unless it is reasonably probable the defendant would have achieved a more favorable result absent the violation]; Cf. People v. Zimmerman (1984) 36 Cal.3d 154,
161 [alleged errors in capital case deemed harmless where the defendant was not actually sentenced to death]; People v. Dominick (1986) 182 Cal.App.3d 1174, 1202 [same].)
Appellant also contends Pacheco's recusal was required because his office pressured Gomez into pleading guilty and testifying for the prosecution. However, because appellant did not raise this issue in seeking Pacheco's recusal, he has failed to preserve the issue for appeal. (People v. McWhorter (2009) 47 Cal.4th 318, 373; People v. Choi (2000) 80 Cal.App.4th 476, 480, fn. 3.)
II
Appellant next challenges two of the trial court's evidentiary rulings. Such rulings are reviewed for a manifest abuse of discretion (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10), and we discern no such abuse in this case.
Appellant first targets the court's decision to exclude evidence that Guidry and Lancaster's mother has a tattoo bearing the name of a Crips gang member. Defense counsel wanted to use the evidence to show Guidry and Lancaster belonged to the Crips, but the trial court determined the evidence could be misleading in that regard. The court also expressed concern that subjecting the victim's mother to questioning about gangs would only add to the grief occasioned by the loss of her son. Stating the defense was free to introduce evidence of the victims' gang ties by other means, the court excluded the tattoo evidence as being unduly prejudicial. (Evid. Code, § 352.)
Appellant contends this ruling was erroneous because the tattoo "clearly would have had a bearing on whether in fact the occupants of the Camaro flashed gang signs." We are not persuaded. First, the evidence was too attenuated to carry much weight. This was the victims' mother, not the victims themselves. We do not punish the children for the sins of their mother. Besides, the evidence was largely undisputed that the victims associated with the Crips, so any evidence showing their mother's allegiance to the gang would have added little to the case. Considering the minimal relevancy of the evidence, we find no abuse of discretion in the trial court's decision to exclude it. (See also People v. Hayes (1992) 3 Cal.App.4th 1238, 1248 [trial court may exclude collateral evidence that has the potential for embarrassing or degrading a witness].)
Appellant also contends the trial court erred in admitting a baseball bat that was found in the bedroom of Ricardo Ruiz. Because the bat had "neger slugger," "ES," and "187" written on it, appellant contends it was unduly inflammatory and should not have been admitted absent proof he knew of, or had some connection to, the item. However, as the trial court noted in making its ruling, this case was charged as a hate crime in that appellant and his companions, including Ruiz, were accused of gunning down the victims because of their race. The racial slur on the bat, along with the reference to appellant's gang ("ES") and the statutory provision for murder ("187"), all point to racial animosity as being a possible motive in the case.
Regardless of who owned the bat or where it was found, the broader implication of the item was that it showed appellant belonged to a gang with both violent and racist proclivities. This was sufficient to justify to trial court's decision to admit the bat into evidence. (People v. Bivert (2011) 52 Cal.4th 96, 117 [evidence of defendant's racist attitude properly admitted to show his intent and motive for alleged crimes]; People v. Monterroso (2004) 34 Cal.4th 743, 773 [racist tattoo was relevant to show motive for murder, and its probative value was not substantially outweighed by its potential prejudicial effect]; People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14 [evidence that defendant had the number 187 tattooed to his forehead was properly admitted into evidence as being highly probative of his criminal intent].) No abuse of discretion has been shown.
As the Attorney General points out, the jury ended up finding the hate crime allegations against appellant not true. Therefore, it is doubtful he was prejudiced by the court's decision to admit the baseball bat into evidence.
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III
Lastly, appellant contends the trial court erred in denying his motion to suppress gang-related evidence that was found during a warrantless search of his home. (§ 1538.5.) We find the search was lawfully conducted pursuant to the terms of appellant's probation.
In the wake of the shooting, investigators suspected appellant was involved in the shooting because of his involvement in ESR and because his pickup truck matched the description of the vehicle used in the shooting. On October 15, 2002, ten days after the shooting, the police stopped appellant in his truck and discovered a loaded shotgun under the front seat of the vehicle. They then went to appellant's residence to search for evidence pertaining to the shooting.
Before entering the residence, the lead investigator contacted appellant's probation officer and confirmed appellant was on probation for theft. The investigator also discovered that as a condition of appellant's probation, he was required to submit to the search of his residence for evidence of stolen property. Armed with this information, the police entered appellant's residence without a warrant and searched his home for evidence relating to the shooting. Inside the residence, they found various photos and paraphernalia connecting appellant to ESR.
Appellant contends the search was unlawful because while his search condition referenced stolen property, the officers entered his home to look for evidence bearing on the shooting. However, the law is well established "that the officer's subjective intent has no role to play in determining the lawfulness of a probation or parole search." (People v. Gomez (2005) 130 Cal.App.4th 1008, 1015.) So long as the search does not exceed the area where the object of the search condition could be found, "the probationer has no cause to complain when those areas are searched, whatever the reason for the search." (Id. at p. 1017, italics added.)
Appellant does not dispute the gang-related items seized from his residence were found in an area where stolen property could be located. Therefore, he has "no cause to complain" that the officers were looking for evidence other than stolen property. Under prevailing Fourth Amendment standards, the warrantless search of his residence was lawful, and the trial court properly denied his motion to suppress.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.