IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
December 20, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL RAMIRO BARRERA, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF106858A)
The opinion of the court was delivered by: Cantil-sakauye, J.
P. v. Barrera CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Daniel Ramiro Barrera was charged with murder (count 1, Pen. Code, § 187),*fn1 carrying a concealed firearm as a gang member (count 2, § 12025, subd. (b)(3)), carrying a loaded firearm while an active participant in a criminal street gang (count 3, § 12031, subd. (a)(2)(C)), and street terrorism (count 4, § 186.22, subd. (a)). The information further alleged enhancements for intentionally and personally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)), committing the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)), and personally using a firearm in the commission of the offense (§ 12022.5, subd. (a)).
The jury convicted defendant of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), and sustained the firearm enhancements. The trial court granted the People's motion to dismiss the section 12022.53, subdivision (d) enhancement because it is inapplicable to voluntary manslaughter. Defendant was sentenced to 21 years in prison, consisting of an upper term of 11 years for voluntary manslaughter plus an upper term of 10 years for the personal use of a firearm enhancement.
On appeal, defendant contends the court violated his Sixth Amendment right to present evidence, and raises various challenges to his upper term sentences. We affirm.
One evening in December 2007, 19-year-old Daniel Guzman (Daniel) and his friends Andre Becerra and "Buzo" were at the home of Daniel's brother Jose Guzman (Jose).*fn2 Daniel told Jose that he and his friends were leaving to meet his girlfriend, and would be right back.
Jose left the house when Daniel did not return, and heard about 10 gunshots coming from the area around the canal to the east. Jose phoned Daniel and his call was sent to voicemail, which was unusual. He then called Becerra, who said Daniel had been shot.
Jose got in his car and drove towards the gun shots. Approaching a nearby intersection, he saw Becerra run and hide behind a fence. Becerra jumped in the car, and they drove to a dead-end street going east towards the canal.
Daniel was lying on the road, and two people were running into a house. Jose and Becerra grabbed Daniel and put him in the car. According to Jose, neither Daniel nor Becerra had a gun.
Daniel died from a single gunshot wound.
That night at around 9:00 or 10:00 p.m. defendant was in his Lexus parked in front of his house. David Lopez came over and they stayed in the car, where they smoked a blunt*fn3 and watched a kung fu movie.
According to Lopez, about 40 minutes later, two people approached defendant's car from the canal. One of the two people struck a window on the Lexus, which made a sound like a gunshot. Lopez ducked down in the front passenger seat. He then heard gunshots coming from all around the car.
After the noise subsided, defendant told him to run. As the two ran into defendant's house, they passed a person lying on the street--the same person who hit the window of defendant's car. Defendant said, "That's what the fuck you get for, you know, coming over here[.]" Lopez later testified that defendant said those words or their equivalent after they were in the house. Once inside the house, defendant told his mother he had shot someone. Defendant had a gun in his hand, which he showed to Lopez about four minutes after they entered the house. Lopez admitted telling a detective that he saw defendant reload the gun.
Lopez also told a detective that defendant got out of the car and started "shooting at 'em," firing five or six shots. About defendant, Lopez said to the detective: "He's just standing there gunning away[.]"
A search warrant was executed on the home the following day. In the northeast bedroom closet, deputies found numerous firearms, brass knuckles, and ammunition. They also found defendant's driver's license, an insurance bill in his name at that address, and an employee identification card with his name and picture.
An expended .38-caliber bullet found at the crime scene was matched to one of the handguns found in defendant's bedroom. There was gunshot residue on the driver's side rear corner panel of defendant's Lexus. The Lexus contained broken glass, and was missing the driver's side window.
Defendant testified, and admitted shooting Daniel in self-defense. He did not realize anyone was outside of his car until he heard a loud bang on the passenger side window. He saw Lopez crouched over with his hands covering his face, while the person who hit the window was ready to strike it again. When he looked left and saw another person standing on the driver's side, defendant "freaked out."
According to defendant, the man on the driver's side window reached towards his waistband, causing defendant to believe the man had a gun. Defendant then pushed the driver's side door open, accidentally discharging the gun and breaking the window. He ran towards the back of his car and then his house, firing three shots from behind the car because the man was coming towards him.
I. Statements Against Penal Interest
Defendant argues the court erred in declining to admit a conversation between Becerra and a defense investigator. We disagree.
Since Becerra invoked his Fifth Amendment privilege and did not testify, defendant sought to admit statements made by Becerra during an interview with a defense investigator. The defense investigator testified about the interview at an Evidence Code section 402 hearing.
Becerra told the investigator he was with Daniel Guzman on the night Daniel was shot. The investigator asked Becerra if he had a gun that night, and Becerra replied: "We had a gun." The investigator did not record the conversation, and never asked Becerra to write anything down.
A San Joaquin County Sheriff's detective interviewed Becerra after getting the defense investigator's report. The detective recorded the conversation, during which Becerra denied saying he had a gun. According to Becerra, the defense investigator had said something like, "You guys had a gun up there on the levee." The detective recorded two interviews with Becerra before the interview with the defense investigator; Becerra did not mention having a gun during either conversation.
The trial court excluded the defense investigator's testimony, finding Becerra's statement was hearsay, the evidence was insufficiently trustworthy to be admitted as a declaration against penal interest, and would require an undue consumption of time.
Defendant contends Becerra's statement to the investigator was admissible as a declaration against penal interest in support of his self-defense claim. He argues the trial court's ruling violated his Sixth Amendment right to present evidence in his favor.
Becerra's out-of-court statement "[w]e had a gun" was offered for its truth and thus was hearsay; as such, it was inadmissible unless it came within an exception to the hearsay rule. (Evid. Code, § 1200; People v. Duarte (2000) 24 Cal.4th 603, 610.) If this statement were to be admitted, it would have to qualify under the exception for declarations against penal interest.
The proponent of a declaration against penal interest (Evid. Code, § 1230) must show the declarant is unavailable, the declaration was against the declarant's penal interest when made, and the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.) A trial court's decision as to whether a statement is against a defendant's penal interest is reviewed for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153-154.)
There is no litmus test for determining whether a statement against penal interest is sufficiently reliable. (People v. Greenberger (1997) 58 Cal.App.4th 298, 334.) In determining whether a declaration is sufficiently trustworthy to be admissible, a trial court must consider the totality of the circumstances in which it was made, including the words stated, whether the declarant spoke from personal knowledge, the declarant's possible motivation and relationship to the defendant, and other circumstances under which the words were stated. (People v. Geier (2007) 41 Cal.4th 555, 584; People v. Frierson (1991) 53 Cal.3d 730, 745.)
Becerra's alleged statement to the investigator was neither recorded nor memorialized in writing. By contrast, Becerra denied making the statement during a recorded conversation with a sheriff's detective, and never mentioned having a gun that night in two previous recorded interviews. It was not an abuse of discretion for the trial court to consider Becerra's recorded denial to be more reliable than an unrecorded statement made to the defense investigator.
Defendant's claim that excluding the evidence violated his constitutional rights is also unpersuasive. The court correctly applied the rules of evidence and the "'"[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense."'" (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
II. The Upper Term for Voluntary Manslaughter was Proper
The trial court imposed an upper term for voluntary manslaughter. Noting defendant's criminal record was "minimal," the court gave the following reasons for its decision: "The victim in this case--somebody hit the car, somebody hit the window. The undisputed evidence was that the victim was running away, approximately 30, 35 feet from the vehicle when defendant rested his gun on the car and shot, hitting the [victim] causing his death."
Defendant contends the upper term sentence was an abuse of discretion unsupported by the facts of the case. Specifically, he argues the jury rejected the trial court's version of the events when it acquitted him of murder and convicted him of the lesser included offense of voluntary manslaughter. He further claims the court improperly used the elements of the offense to impose the upper term. We reject both contentions.
Defendant committed his crime in mid-December 2007, after the Legislature amended the determinate sentencing law in response to the Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). (Stats. 2007, ch. 3, § 2.) The amended law states in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall set forth on the record the reasons for imposing the term selected . . . ." (§ 1170, subd. (b).)
When "selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b).) The trial court enjoys broad discretion in its sentencing decisions, which we review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
At sentencing, the trial court does not have to agree with the jury's findings. "[A] jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." (United States v. Watts (1997) 519 U.S. 148, 157 [136 L.Ed.2d 554, 565] (per curiam).) Thus, a court can use facts implicitly found not true by the jury in its decision to impose an upper term. (People v. Towne (2008) 44 Cal.4th 63, 83, 85-86.)
Substantial evidence supports the court's findings that defendant shot as Daniel was running away. At the scene, two blood drops were found on the street, at different locations, separated by some distance. Daniel died almost immediately after being shot. The gunshot wound entered Daniel's cheek, went through the nasal cavity, and lacerated the brain stem killing him almost immediately. Therefore, he was shot close to where the blood drops were found. While defendant's car was moved after the shooting, officers found broken glass and an automobile DVD remote where the car had been parked. Those items were over 30 feet from the blood spots, supporting the trial court's conclusion that Daniel was over 30 feet from defendant and running away when defendant shot him.
We find two enumerated aggravating factors which support the upper term sentence. Shooting a man who is running away and no possible threat to the defendant shows a "high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) Defendant shot at his victim in a residential neighborhood while other people were present, which is "violent conduct that indicates a serious danger to society." (Cal. Rules of Court, rule 4.421(b)(1).)
The court's decision to impose an upper term was not, as defendant suggests, an improper dual use of facts by relying on defendant's use of a firearm. The evidence of provocation or imperfect self-defense was minimal, and there was substantial evidence supporting the court's finding that defendant took aim, stabilized his gun on the car, and fired at his fleeing victim. It was not an abuse of discretion for the court to find this was a particularly egregious voluntary manslaughter and impose the upper term.
III. Apprendi and the Gun Enhancement
The trial court imposed the upper term for the gun enhancement. (§ 12022.5, subd. (a).) Defendant claims the upper term sentence violates his rights to jury trial and due process, as recognized in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and related cases.
Section 1170.1 originally made the middle term the presumptive term, and required the judge to make factual findings before imposing an upper term for an enhancement. (Former § 1170.1, subd. (d), as amended by Stats. 2009, ch. 171, § 5.)
In Cunningham, the Supreme Court analyzed California's determinate sentencing law and held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence," "violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham, supra, 549 U.S. at p. 274 [166 L.Ed.2d at p. 864].) The Legislature has since amended this provision to conform to Cunningham, but did so after defendant was sentenced. (Stats. 2009, ch. 171, § 5.)
Defendant was sentenced well after Cunningham. He did not object to the upper term for his enhancement, which forfeits his claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 352-353 & fn. 16.)
We also find any error to be harmless. In Sandoval, the California Supreme Court held that whether imposing sentence in the first instance or on remand for resentencing, applying amended section 1170's sentencing procedure to crimes committed before the amendment does not amount to an unconstitutional ex post facto application of the law. (See Sandoval, supra, 41 Cal.4th at p. 846.)
The rule of Sandoval applies with equal force to sentencing under section 1170.1. If we were to vacate the sentence and remand for resentencing, the trial court could resentence defendant for the enhancement under the amended section 1170.1.
The trial court imposed the upper term on the enhancement "for the same circumstances" as it imposed the upper term for voluntary manslaughter. The sentence for voluntary manslaughter was imposed under the amended section 1170. Remanding for resentencing on the enhancement would be an exercise in futility; the trial court would impose the same upper term for the same reasons given when it first imposed the sentence. We are convinced beyond a reasonable doubt that vacating the sentence for the enhancement and a remand for resentencing would not lead to a better result for defendant.
IV. The Upper Term for the Enhancement
Defendant contends that his upper term sentence for the enhancement was an abuse of discretion because it involved a dual use of facts. He raises the same claims as he made regarding his upper term sentence for voluntary manslaughter, and we accordingly reject them.
Defendant's final contention is the amendments to sections 1170 and 1170.1 do not cure the constitutional defects of the determinate sentencing law. As he admits, this claim is contrary to Sandoval, which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J. ROBIE, J.