P. v. Mendez 3/29/05 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171826

Case Date: 07/13/2005

Preview:Filed 3/29/05 P. v. Mendez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. RAMIRO MENDEZ, Defendant and Appellant.

B171826 (Los Angeles County Super. Ct. No. VA 064699)

APPEAL from a judgment of the Superior Court of Los Angeles County. Peter Espinoza and Robert J. Higa, Judges. Affirmed in part; remanded in part.

Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc J. Nolan and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Ramiro Mendez was sentenced to prison for two life terms plus 43 years for committing murder, attempted murder, assault with a deadly weapon, and other crimes. He contends that the trial court committed reversible error by (1) failing to modify CALJIC instructions sua sponte to include references to out-of-court statements, and (2) introducing hearsay statements from the murder victim and his father. He also maintains that his sentence must be reconsidered due to Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely). Respondent raises an additional issue: Due to what appears to be a mistake, appellant was sentenced for second degree murder, even though the jury convicted him of first degree murder. We find no error as to guilt, but remand for resentencing. PROCEDURAL HISTORY Count 1 of the amended information alleged that appellant murdered Rudy Saucedo on October 30, 1999, while using a knife. Appellant and Feliciano Marentes were charged jointly on counts 2 through 11, which contained allegations that the crimes were committed to further criminal gang activity. Count 2 alleged assault with a deadly weapon (a knife) on Daniel M. on December 17, 1999, enhanced by personal use of a deadly weapon and infliction of great bodily injury. Count 3 alleged criminal threats against Martin S. on December 22, 1999. Counts 4 through 8 alleged crimes on December 24, 1999: the attempted murder of Martin S. (count 4), attempted murder of Paul S. (count 5), assault with a semiautomatic firearm on Martin S. (count 6), assault with a firearm on Paul S. (count 7), and discharging a firearm at an inhabited dwelling (count 8). Counts 9 through 11 alleged crimes on January 9, 2000: the attempted murder of Patrick R. while personally discharging a handgun (count 9), assault with a semiautomatic firearm on Patrick R. (count 10), and shooting at an inhabited dwelling (count 11). Trial on the murder charge in count 1 was bifurcated from the trial on counts 2 through 11. 2

The jury trial on counts 2 through 11 occurred before Judge Peter Espinoza. Marentes was acquitted on all charges. Counts 3 and 8 were dismissed before the case went to the jury. Appellant was acquitted on counts 4 through 7, the charges involving Martin S. and Paul S. He was convicted on count 2 (the Daniel M. assault) and counts 9 through 11 (the Patrick R. crimes). The jury also found the gang allegation to be true. The separate jury trial on count 1 occurred before Judge Robert Higa. The result was a verdict of first degree murder and personal use of a knife. The sentencing memorandum by the prosecutor erroneously indicated that the conviction on count 1 was for second degree murder. Apparently relying on that memorandum, Judge Higa sentenced appellant to prison on count 1 for 16 years to life (15 years to life for second degree murder plus one year for knife use), consecutive to the other counts. Judge Espinoza imposed sentence on the remaining counts, after striking the gang allegation on the People's motion. Further details of that sentence will be provided in the discussion of appellant's Blakely issue. A timely notice of appeal was filed. FACTS The facts are summarized only for the counts on which appellant was convicted. A. The Murder of Rudy Saucedo (Count 1) In August 1999, 17-year-old Rudy Saucedo and his family lived in Pico Rivera. Their home was near Rivera Park, a "hang out" for members of the "Rivera Trece" or "Rivera 13" street gang.1 Appellant, who was known as "Trippy," was a member of Rivera 13.2 Rudy had complained to his parents that he was having problems with appellant and appellant's friend, "Spooky."3 Rudy said that every time he encountered

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"Trece" is Spanish for "13."

According to the probation report, appellant was 16 years old at the time of the offenses. Spooky was a different gang member than from codefendant, Marentes, whose gang name was "Felix." 3
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Trippy and Spooky, they would fight or argue with him. He also stated that he had joined the Rivera 13 gang so that Trippy and Spooky would not hurt his parents. On an unspecified day in August 1999, Rudy and his father, Francisco C., were working on Rudy's bicycle in their garage. Rudy's mother, Josie C., had just walked out of the house. Appellant and Spooky walked up to them. Rudy said something to Francisco. Francisco asked appellant and Spooky to leave Rudy alone, as they fought with him every time they saw him. Francisco said he was going to call the police the next time. He complained that appellant and Spooky continued to fight with Rudy even though Rudy won most of the fights, as he was "a husky kid." Appellant and Spooky became upset. They both called Rudy's mother, Josie, a "b----." Appellant said, "I'm going to come back and kill you." Rudy stood up and said, "Don't you talk to my dad like that." Appellant and Spooky walked away, saying, "We'll be back." After that, when Josie encountered either appellant or Spooky, they would call her a "b----." Josie encountered appellant and Spooky near a market. They frightened her by yelling, "We're going to get you, b----." She went to the park and asked some older gang members to tell appellant and Spooky to leave her family alone. Rudy and his family moved to an adjacent community, Whittier. Around 1:00 a.m. on October 30, 1999, Rudy's dead body was found draped over some railroad tracks in Pico Rivera. He died from approximately 60 stab wounds. The body also had blunt force traumatic injuries, scrapes, abrasions, and defense wounds on the hands and arms. It had probably been moved to the tracks from a dirt area where there was more blood. Spray-painted on nearby buildings and a post were the words "Trippy" (appellant's gang name), the names of other gang members, "Rivera 13," "R13 kills," "Killers," and other gang-related terms. Appellant was questioned several days later at the sheriff's station. He had a cut over his eyebrow and writing there which said "R13V," which was a symbol for the Rivera 13 gang. Lacerations on his hands, wrist and finger were consistent with a knife's

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slipping as it was used to penetrate a victim. His blood matched samples of blood which were taken from the crime scene. At the trial, the prosecution called appellant's mother, Victoria R. She testified that she herself was a member of the Rivera 13 gang herself, as was appellant and Marentes. She did not remember telling investigators that she did not know where appellant was the night Rudy was killed and did not know how he got the wounds on his hands. She also did not recall saying that she sometimes did not know where he was for long periods of time. A homicide detective testified that Victoria had made such a statement. Victoria also had said that appellant experienced an attitude change after he was shot earlier in 1999. Following that incident, he considered the Pico Nuevo gang his enemy, carried a knife for protection, and sang modified rap songs in which he referred to himself as a drive-by shooter. B. The Attack on Daniel M. (Count 2) On December 17, 1999, Daniel M. was approached outside of El Rancho High School in Pico Rivera by a friend, Matthew, who had an injured lip, black eye and bloody nose. Matthew said he had been assaulted by people who "were coming back to get him." A car drove up. Its occupants yelled out a gang-related challenge. A person got out of the car and approached Matthew, as if to assault him again. Daniel intervened and started fighting with the person. Matthew ran away. Daniel started to run away. He was stabbed in the ear and then was cut off by the car. He fell on the car's hood and was stabbed once in the back. The stabber got back into the car, which drove away. Daniel required stitches for the stab wounds. At the trial, Daniel M. testified he could not describe the stabber. He denied telling a sheriff's deputy that he was attacked by a member of the Rivera 13 gang. However, he had immediately identified appellant as the stabber when he was shown a photographic lineup. At trial, he claimed he identified the photograph because the deputies kept tapping on the picture and urging him to make an identification. He also denied that he feared retaliation by the Rivera 13 gang and repudiated his prior statement that, two weeks before the stabbing, he had a confrontation in front of the high school 5

with a Rivera 13 gang member. He claimed that he did not belong to the Pico Nuevo gang. However, several months after he was stabbed, he and two Pico Nuevo gang members were involved in the shooting of a member of another rival gang, Pico Viejo. Pretrial identifications of appellant as the stabber of Daniel M. were also made by Soledad S. and Martin S., who had no gang associations. Soledad was waiting outside the high school to pick up Martin, who was a student there. Soledad and Martin saw a person get out of a brown car, run up to a boy at the bus stop, say something, stab him, return to the brown car, and ride away. Soledad testified that she did not remember the face of the stabber. She and Martin separately identified appellant as the stabber from live and photographic lineups.4 At the trial, a sheriff's department gang expert explained that El Rancho High School is in the territory of the Pico Nuevo gang. That gang is an intense rival of the Rivera 13 gang. Pico Nuevo gang members were suspects in an April 1999 shooting incident in which appellant was wounded and a fellow Rivera 13 gang member was killed.5 Status and intimidation are a central aspect of such gangs. It would be a bold move for a Rivera 13 gang member to assault a Pico Nuevo gang member in front of El Rancho High School. The derogatory gang terms which were used in front of the high school were designed to provoke a reaction. Daniel was at least an associate of the Pico Nuevo gang, as several months after he was stabbed, he drove two members of the Pico Nuevo gang to the area of another gang, Pico Viejo, where a member of Pico Viejo was shot. Based on the code of behavior of gangs, it was not surprising that Daniel would be uncooperative in the investigation of a crime against him by Rivera 13. Also, in general, victims and witnesses did not cooperate with investigations of gang activity.
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In contrast, Soledad and Martin did not identify appellant's photograph as to the charges on which he was acquitted, which concerned the firing of shots at their home on a later date. Martin testified that appellant was the shooter for the incident at his home, but he had been afraid to identify his picture until his family moved away. According to the probation report, appellant was shot in the stomach and right leg during a drive-by incident. A bullet remained in his spine. 6
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The trial evidence also included photographs of appellant in which he flourished a pistol while making a symbol for the Rivera 13 gang with his other hand. C. The Attack on Patrick R. (Counts 9, 10 & 11) Around 3:30 p.m. on January 9, 2000, Patrick R.'s girlfriend parked in the driveway while Patrick walked into his Pico Rivera home to retrieve a box of clothing. When Patrick came outside, a brown car was blocking his girlfriend's car in the driveway. The passenger of the brown car started shooting at him. The shots continued as Patrick ran back into the house. Twelve rounds were fired, but none hit him. Numerous bullet holes were left in the house. Sheriff's deputies recovered shell casings from a semiautomatic pistol. At the trial, Patrick was positive that appellant was the shooter. He further testified that he did not belong to a gang. However, about a month before the shooting, he had had a problem with codefendant Marentes and other Rivera 13 gang members at a 7-Eleven store. Marentes falsely told his companions that Patrick belonged to the Pico Nuevo gang. They threw a bottle at Patrick, who left at that point. A day before the shots were fired at Patrick, an off-duty police officer went to a swap meet in Pico Rivera. He watched a young man point a gun at the occupants of a car. He followed the young man, saw him enter a brown car, and wrote down its license plate number. Two days after the Patrick shooting incident, appellant and codefendant Marentes were arrested in the brown car. The officer from the swap meet picked out a photo of appellant as possibly being the gunman he had followed. Soledad and Martin identified the car as the one that had been used for the stabbing of Daniel at the high school. DISCUSSION 1. Instructional Issues A. Modification of CALJIC No. 2.13 Appellant argues that there should have been a modification to CALJIC No. 2.13, the instruction on prior inconsistent testimony, based on Daniel's testimony that he did not remember what his stabber looked like, and appellant's mother's testimony that she 7

did not recall what she told the investigators. He maintains that the absence of such a modification violated his state and federal constitutional rights to trial by jury because it impaired the jury's role as the exclusive judge of witness credibility. CALJIC No. 2.13 states: "Evidence that at some other time a witness made a statement or statements that are inconsistent or consistent with his or her testimony in this trial may be considered by you not only for the purpose of testing the credibility of the witness but also as evidence of the truth of the facts as stated by the witness on that former occasion. "If you disbelieve a witness's testimony that he or she no longer remembers a certain event, that testimony is inconsistent with a prior statement or statements by him or her describing that event." Appellant maintains that the trial court had a sua sponte duty to add an additional sentence which would have stated: "If you believe a witness's testimony that he or she no longer remembers certain events, then you should disregard that witness' extrajudicial statements regarding those events." Alternatively, he argues that he was denied his right to effective assistance of counsel because counsel failed to request the modification. (U.S. Const., 6th Amend.; Cal. Const., art I,

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