PEOPLE v. ZAMORA No. F059292.
THE PEOPLE, Plaintiff and Respondent, v. RENE ZAMORA, Defendant and Appellant.
Court of Appeals of California, Fifth District.
Filed March 25, 2011.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LEVY, Acting P.J.
In March 2008, Rene Zamora (Zamora), Angel Carrasco (Carrasco) and Derek Romero (Romero) were active Surenos gang members.
An indictment was returned charging Zamora, Carrasco and Romero with murder (count 1) and discharging a firearm from a motor vehicle at a person (count 2). (Pen. Code, §§ 187, subd. (a), 12034, subd. (c).)
In June 2009, Romero entered into a negotiated plea agreement. It limited Romero's prison exposure to 27 years in exchange for his guilty plea to lesser offenses and truthful testimony at trial of his codefendants.
Zamora and Carrasco were jointly tried in November 2009. The jury found them guilty on both counts and it found all of the special allegations to be true.
Zamora and Carrasco were sentenced to life without the possibility of parole, plus a consecutive term of 25 years to life.
Zamora and Carrasco separately appealed. They raised different issues.
Zamora argues the trial court erroneously admitted evidence that he attempted to escape from jail while awaiting trial. Also, he contends the trial court failed to instruct on some lesser included offenses to counts 1 and 2. Finally, he argues the judgment must be reversed because the verdict forms incorrectly referred to the charging document as an information. None of these arguments is persuasive. We will affirm.
I. T.R.'s Testimony.
T.R. testified that he and the victim lived on the north side of Visalia. They spent the evening at the victim's house playing video games. Around 11:00 p.m., they drove to T.R.'s house and T.R. checked in with his mother. T.R. snuck out of the house and the two of them started to walk back to the victim's house.
A van passed them, made a U-turn and came back towards them. They ran into a field and hid by lying down in the tall grass. The driver of the van parked and turned the van's headlights off. About five minutes later, the driver of the van started the vehicle and began to drive northbound.
T.R. said to the victim, "Now is our chance. Let's make a run for your house." They began running towards the victim's house. The victim was overweight and could not run quickly. Although they started out together, the victim soon lagged behind T.R.
The van sped up and headed towards them. T.R. was approximately 15 feet ahead of the victim. T.R. turned around and saw the van slow as it approached the victim. The passenger side of the van was closest to the victim. When the van was alongside the victim, T.R. heard the sound of five gunshots. Then he saw the victim on the ground. The van drove away.
T.R. did not see how many people were inside the van and could not identify any of its occupants. T.R. did not see who was firing the gun. He did not hear anyone in the van say anything.
II. Romero's Testimony.
Romero testified that in 2008 he and Carrasco were members of Vicky's Town (VST). Zamora belonged to a different gang, but associated with VST members.
Romero, Zamora and Carrasco attended a party on the evening of March 11. Zamora brought a gun to the party. He tucked it into the waistband of his pants.
Around 9:00 p.m., they decided to go "tagging." They got into a van. Zamora drove and Carrasco sat in the front passenger seat. Romero sat in the rear passenger seat. Zamora wore black leather gloves. He brought the gun with him.
After tagging a few places, they decided to drive around Visalia to "go catch somebody slipping." This meant they would "go find somebody walking around and see if we can jump them." They drove around for about two hours and did not find anyone to jump. They were about to give up when Carrasco spotted two people close to a grocery store. Zamora drove into the parking lot and made a U-turn so they could catch the two people. The two people ran towards a field across the street and hid in some shrubs. Zamora stopped the van and turned off its lights. They waited for approximately 10 minutes. Eventually, they decided to leave.
As Zamora started to drive away, two people ran out of the bushes. They were both male. One, later identified as the victim, was chubby; the other, later identified as T.R., was skinny. T.R. ran faster than the victim and soon was in front of him. Romero was getting ready to jump out of the van because he thought they were going to jump the two men by "throw[ing] blows." Romero saw a white truck coming towards them so he tried to convince the others to leave. He almost convinced Zamora, but Carrasco said, "No. Drive up close to them." Carrasco said something else to Zamora that Romero did not hear. Then Zamora handed Carrasco the gun. Carrasco placed it on his lap.
Zamora drove the van towards the victim, who was walking now. Zamora slowed the van as it neared the victim. Zamora, Carrasco and Romero all said "South Side. South Side" to the victim because they thought "he was northern" and they wanted to intimidate him. Carrasco asked the victim where he was from. The victim did not respond so Carrasco repeated the question. The victim "mumbled North Side." Carrasco said, "[F]uck that. This is South Side." Carrasco stuck his head and right arm out the front passenger window and fired a shot at the victim. The shot missed the victim. Then Carrasco fired two or three shots at the victim. Romero knew the victim was hit "because he screamed." Then Zamora "peeled out" and drove away.
Zamora and Romero shook Carrasco's hand and congratulated him. They parked for a short time. Carrasco gave the gun to Zamora. Zamora examined the gun to determine if there was any ammunition left because "they wanted to do it again." Zamora was still wearing gloves. They were out of ammunition so they decided to go back to Hanford.
On the way to Hanford, they noticed a patrol car following behind them. Carrasco threw the gun, gloves, bandana and spray paint can out the passenger window. Shortly thereafter, the patrol car pulled the van over and they were all arrested.
About five months after the murder, Romero decided to drop out of the gang. He thought Zamora was planning to kill him.
Romero admitted he wrote poems about gang murders prior to the shooting. He intended to put the poems on his MySpace page to intimidate rival gang members and increase recognition of VST.
The jury was instructed that if it found the charged crimes were committed, then Romero was an accomplice.
III. Other Testimonial and Physical Evidence.
The victim was shot twice in the chest and died at the scene. A lead slug was removed from the victim's body. A criminalist determined it was consistent with a .38-caliber bullet.
A neighbor, F.G., testified he heard "burning of tires on the street" and five gunshots. He looked outside and saw a van speeding away and a person lying on the ground. Another neighbor testified he/she heard at least five gunshots.
T.R. and F.G. were driven by police officers to the location where Zamora's van was stopped. They identified this van as the vehicle they saw.
A can of spray paint, a pair of black leather gloves and a 5-shot revolver with a blue bandana wrapped around the handle (the revolver) were found near the area where the van was traveling before it was pulled over. The revolver, which was a Rossi Interarms brand .38-caliber special, contained five spent cartridge casings of various brands.
Carrasco's fingerprints were lifted from the spray paint can. Carrasco's fingerprints were lifted from the van's exterior rear passenger sliding door. Romero's fingerprints were lifted from the exterior hood on the passenger side of the van.
Gunshot residue (GSR) was found on both of Carrasco's and Romero's hands. GSR was not found on either of Zamora's hands. GSR was found on the interior of the van.
Zamora's bedroom was searched. A small bag containing two . 38-caliber rounds was found inside a dresser drawer. These bullets were capable of being fired by the revolver.
A photo of Zamora posted on his MySpace page depicted him flashing a gang sign while holding a gun that had its handle wrapped in a blue bandana.
A gang expert testified VST is a fast-growing clique of the Surenos gang. The Surenos' primary activities include homicide and assault with a deadly weapon. In the gang expert's opinion, Carrasco, Zamora and Romero were all active Surenos members on March 12. Neither the victim nor T.R. had any gang affiliations. Based on a hypothetical, a gang expert opined the shooting was committed in furtherance of and for the benefit of a criminal street gang.
IV. The Defense.
Carrasco and Zamora both rested without calling any witnesses.
I. Evidence of Zamora's Attempted Escape was Properly Admitted.
During motions in limine, the People sought to introduce evidence that Zamora attempted to escape from jail on December 24, and subsequently wrote a note referencing the escape attempt. Defense counsel objected, arguing that the attempted escape was "too far removed," and neither the escape attempt nor the contents of the note necessarily evidenced a consciousness of guilt. Defense counsel also contended the note was vague and its contents did not necessarily relate to the escape attempt. Finally, he asserted, "[i]t's too broad and prejudicial as well." The court found this evidence was admissible "under the theory of consciousness of guilt." It concluded the probative value of the evidence outweighed its prejudicial effect.
A correctional officer at the Bob Wiley Detention Facility testified on December 24, he saw Zamora lying on the floor underneath the bunk bed. Zamora's cellmate was asleep. Zamora told the officer that he was cleaning the floor. The cell was searched. A hole had been dug in the cell wall about six inches above the floor. A piece that goes along the side of the air vent was found in the cell. Zamora said he did not know how the hole got into the wall. Zamora was moved to a single-person cell. On December 30, Zamora's cell was searched. Officers found a handwritten note and a replica of a small metal wall plate made out of soap and another substance to color it brown. In relevant part, the note read: "But I was on a little mission to escape but I didn't make it too far. But this fool ain't got shit to lose so I had to give it a try."
The jury was instructed on flight with CALCRIM No. 372.
B. Admission of this evidence was not an abuse of discretion and did not infringe Zamora's federal constitutional due process right.
Zamora argues testimony about his attempted escape was irrelevant and should have been excluded under Evidence Code section 352. We are not convinced. "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352. [Citation.]" (People v. Kipp (2001)
"Evidence is relevant if it has `any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citations.]" (People v. Wallace (2008)
Evidence of an attempt or plan to escape from jail pending trial ordinarily is relevant to establish consciousness of guilt. (Kipp, supra, 26 Cal.4th at p. 1126; People v. Terry (1970)
We agree with the trial court that the probative value of this evidence was not substantially outweighed by concerns of undue consumption of time or risk of unfair prejudice. Testimony about the escape "was brief and matter of fact." (People v. Wallace, supra, 44 Cal.4th at p. 1059.) The escape attempt did not involve any overt violence. (Kipp, supra, 26 Cal.4th at p. 1126.) The circumstances surrounding the victim's murder are so senselessly horrific that the escape attempt pales in comparison to the charged offenses. The jurors were not likely to be shocked or impassioned by the escape attempt or contents of Zamora's handwritten note. "The trial court could reasonably conclude, in the exercise of its broad discretion, that this evidence would not so inflame the jurors' emotions as to interfere with their fair and dispassionate assessment of the evidence of defendant's guilt." (Ibid.) Therefore, we conclude the trial court did not abuse its discretion in admitting evidence of Zamora's escape. (Kipp, supra, 26 Cal.4th at pp. 1125-1127 [evidence of escape attempt while defendant was under judgment of death for murder was properly admitted]; Terry, supra, 2 Cal.3d at p. 395 [evidence of escape several months after arrest on two counts of murder properly admitted].)
Zamora also argues evidence of his attempted escape was so unfairly prejudicial that its admission violated his federal constitutional due process right and his trial counsel was ineffective because he did not object on this basis. We are not persuaded.
Although defense counsel did not object on due process grounds, the due process argument presented by Zamora on appeal is cognizable. To consider on appeal an argument that admission of evidence, which was disputed on Evidence Code section 352 grounds at trial, was an error so serious that it violates due process "`entails no unfairness to the parties,' who had the full opportunity at trial to litigate whether the court should overrule or sustain the trial objection. [Citation.]" (People v. Partida (2005)
Admission of disputed evidence violates a defendant's federal constitutional due process right only if it rendered the trial fundamentally unfair. (Partida, supra, 37 Cal.4th at p. 436.) In view of our determination that evidence of the attempted escape was relevant to show consciousness of guilt and was not excessively prejudicial, we further conclude that admission of this evidence did not render the trial unfair. Therefore, Zamora's due process right was not infringed. (People v. Burgener (2003)
II. Zamora was not Prejudiced by the Failure to Instruct on Involuntary Manslaughter as a Lesser Included Offense to Count 1 or Discharging a Firearm from a Motor Vehicle as a Lesser Included Offense to Count 2.
Next, Zamora argues the court erred by failing to instruct, with respect to count 1, on the lesser offense of misdemeanor involuntary manslaughter based on the crime of brandishing a firearm under section 417, subdivision (a)(2), or the crime of being a driver who knowingly allows a person to bring a firearm into a motor vehicle under section 12034, subdivision (a). He also argues the court erred by failing to instruct, with respect to count 2, on the lesser offense of discharging a firearm from a motor vehicle under section 12034, subdivision (c). As we will explain, these claims fail because Zamora was not prejudiced by the absence of instruction on these lesser offenses.
A. The trial court has a sua sponte obligation to instruct on all lesser included offenses when there is substantial evidence supporting the instruction.
A trial court has a sua sponte obligation to instruct on all lesser included offenses "when there is substantial evidence to support the instruction, regardless of the theories of the case proffered by the parties." (People v. Barton (1995)
As will be explained, we need not decide whether the trial court erred by failing to instruct on involuntary manslaughter or shooting at a motor vehicle because the verdicts establish the jury determined Zamora personally possessed the intent to kill and it is not reasonably probable that more favorable verdicts would have been returned if the jury and been instructed on these lesser crimes. (People v. Polley (1983)
B. Failure to instruct on the identified lesser included offenses is harmless.
"[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956)
Polley is instructive. There, the defendant was convicted of first degree murder and burglary; a firearm allegation was found true. In relevant part, the defendant argued the trial court erred by refusing to instruct on involuntary manslaughter based on a brandishing theory. The appellate court concluded that it "need not decide whether either of those two theories is valid, because the verdict shows the jury rejected the first prerequisite to an involuntary manslaughter verdict: the absence of malice. Any error in the failure to give the involuntary manslaughter instruction, therefore, was harmless." (Polley, supra, 147 Cal.App.3d at p. 1091.) It reasoned, "[T]he jury was instructed on second degree murder and voluntary manslaughter as well as first degree murder and was correctly told the role malice plays in the definitions of those crimes. The first degree murder verdict, therefore, shows the jury found Polley acted with malice; any error in not giving the involuntary manslaughter instruction was harmless." (Id. at p. 1092.) Here, as in Polley, the jury was instructed on first and second degree murder and voluntary manslaughter. The questions whether the killing was intentional, accidental, or the product of the negligent use of a firearm, were necessarily resolved adverse to Zamora by the jury's first degree murder verdict. (Polley, supra, 147 Cal.App.3d at pp. 1091-1092; People v. DeJesus, supra, 38 Cal.App.4th at p. 21.)
Zamora argues the jury was not given the opportunity to find him guilty of crimes that do not involve malice or intent to kill. This contention fails because the jury was presented with three special circumstance allegations and it found all of them true. The jury was instructed that it could not find a special circumstance allegation true for a defendant who was not the actual killer unless the People proved beyond a reasonable doubt that he possessed the intent to kill. (CALCRIM No. 702.) In relevant part, CALCRIM No. 702 provided: "In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill." Thus, in finding the special circumstances allegations true, the jury necessarily resolved the factual question of Zamora's mens rea (i.e., his intent to kill) adverse to him. Under the instructions given to it, the jury could not have found the special allegations true as to Zamora if it did not believe he personally possessed the intent to kill. If the jurors had been persuaded by defense counsel's argument that Romero was the shooter or his argument Zamora did not know Carrasco was going to shoot at the victim, the jurors would not have unanimously found all of the special circumstances true.
Additionally, we agree with respondent that the evidence in this case so strongly proves Zamora's guilt of all of the charged offenses and special allegations that the omission of instruction on the identified lesser included offenses was harmless. The evidence amply supports the jury's finding that Zamora personally possessed an intent to kill. The murder weapon was linked to Zamora through a MySpace photo depicting him holding a revolver with a handle wrapped in a blue bandanna and .38-caliber bullets found in Zamora's bedroom. No evidence was presented directly linking a gun or bullets to either Carrasco or Romero. No evidence was presented contradicting Romero's testimony that Zamora brought the gun to the party and had it with him when they drove around looking for someone "to jump." Romero testified Zamora handed the gun to Carrasco, who fired two or three shots directly at the victim. It can reasonably be inferred from Romero's testimony that the gun was loaded when Zamora handed it to Carrasco. Zamora did not demonstrate any surprise or dismay that Carrasco shot the victim. Instead, Romero testified that after the shooting, he and Zamora congratulated Carrasco and shook his hand. Romero also testified that Zamora and Carrasco wanted to shoot someone else but did not have enough ammunition.
Zamora argues Romero was not a credible witness. By finding all counts and special allegations true as to both defendants, the jury demonstrated that they found Romero believable. We find no basis to overturn this credibility determination. Apart from the discrepancy between Romero's testimony that Carrasco fired two or three shots when the revolver had five spent cartridges in it and neighbors heard five shots, Romero's testimony is largely consistent with the other evidence.
For these reasons, we hold the absence of instruction on involuntary manslaughter and discharging a firearm from a motor vehicle did not affect the verdicts and is harmless under the Watson
III. Appellate Review of the Alleged Error in the Verdict Forms was Forfeited.
The accusatory pleading in this case is a true bill of indictment returned by a Tulare County special grand jury. It charged Zamora with first degree murder (count 1) and shooting at an occupied vehicle (count 2).
In relevant part, the verdict form for count 1 read, "We, the Jury, find the defendant Guilty as charged in Count 1 of the Information, of MURDER IN THE FIRST DEGREE, in violation of Penal Code section 187(a), VICTIM VINCENT CHAPA." In relevant part, the verdict for count 2 read, "We, the Jury, find the defendant, Guilty as charged in Count 2 of the Information, of SHOOTING FROM A MOTOR VEHICLE, in violation of Penal Code section 12034(c), victim being VINCENT CHAPA."
During the instructional conference, no one objected to the phrasing of the verdict forms. No one alerted the trial court to the erroneous reference in these verdict forms to an information as the charging document before the jury was discharged.
After conclusion of evidence, the trial court instructed the jury that Zamora was "charged in Count 1 with murder." It instructed the jury on the elements of first degree murder, second degree murder and manslaughter. Then the court told the jury that it would "be given verdict forms for guilty and not guilty of first degree murder, second degree murder and voluntary manslaughter." The jury was further instructed, "In Count 2, the defendant is charged with shooting from a motor vehicle at another person in violation of Penal Code Section 12034." Then it instructed on the elements of this crime.
B. Failure to object to the wording of the verdict forms forfeited appellate review of the erroneous references to an indictment.
Zamora argues the verdicts are void "because they are verdicts for charges and allegations in a nonexistent accusatory pleading," and since he was "found guilty and sentenced based on charges in a nonexistent information," he was denied his right to due process of law and to a jury trial under the state and federal constitutions and unspecified California statutes. Respondent contends Zamora forfeited appellate consideration of this point because he did not object on this ground below. We agree with respondent.
"An objection to jury verdict forms is generally deemed waived if not raised in the trial court. [Citations.]" (People v. Toro (1989)
In People v. Webster (1991)
Following and applying Webster, we likewise conclude Zamora's challenge to the erroneous reference to an information as the charging document in the verdict forms was forfeited by the absence of objection below. If Zamora had objected to this error either when the verdict forms were discussed during the instructional conference or when the verdicts were read out loud in open court, the trial court easily could have corrected the error. Zamora's attempt to characterize this defect in the verdicts as judicial error is unconvincing. This was merely a clerical error in naming the type of accusatory pleading. The mistake is not transformed into judicial error simply because the court discharged the jury. By failing to object at any time below, Zamora forfeited appellate consideration of the defect. (Webster, supra, 54 Cal.3d at pp. 446-447.)
In any event, Zamora's due process rights were not affected by the error in the verdict forms. Zamora was provided with legally adequate notice of the charges against him and given a full and fair opportunity to defend against those charges. The jury was correctly instructed on the charges contained in the indictment and his guilt or innocence on those charges was determined by the jury. The offenses and enhancements decided by the jury in its verdicts were identical to the charges and enhancements contained in the indictment. None of Zamora's substantial rights were affected by the misidentification of the charging document as an information instead of an indictment. The jury's intent to convict Zamora of first degree murder and shooting from a motor vehicle was unmistakably clear. The verdicts express with reasonable certainty findings that are fully supported by the evidence. The error did not prejudice Zamora in any way. Therefore, the technical defect in the verdicts may be disregarded and the judgment upheld. (Webster, supra, 54 Cal.3d at pp. 446-447; see also, e.g., People v. Radil, supra, 76 Cal.App.3d at pp. 709-710; People v. Jones (1997)
The judgment is affirmed.
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