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The People v. Eliceo Nunez

February 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELICEO NUNEZ, DEFENDANT AND APPELLANT.



Super. Ct. No. SF101713A

The opinion of the court was delivered by: Raye, P.J.

P. v. Nunez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After David Rangel asked defendant Eliceo Arrellano Nunez for directions to an apartment, defendant pulled out a gun. As Rangel drove away, gunshots rang out, shattering the vehicle's back window and injuring Rangel's companion.

A month previously, when Romeo Laminero stopped his car at a red light, another car bumped him from behind. When Laminero got out to investigate, defendant confronted him with a gun. As Laminero drove away, the car was bumped again, pushed to the curb, and stopped. Defendant put the gun to Laminero's head and demanded the car. Laminero fled on foot, leaving defendant the car.

An information charged defendant with two counts of attempted murder, shooting at an occupied vehicle, mayhem, three counts of possession of a firearm by a convicted felon, three counts of street terrorism, carjacking, three counts of assault with a firearm, and possession of ammunition. Two jury trials followed. Both juries found defendant guilty as charged. The court sentenced defendant to a determinate term of 96 years 8 months and an indeterminate term of 135 years to life, for a total of 231 years 8 months to life.

Defendant appeals, contending the trial court erred in finding no Batson/Wheeler violation (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); insufficient evidence supports the jury's finding that defendant committed the attempted murders and carjacking for the benefit of a criminal street gang; insufficient evidence supports the primary activities or pattern of conduct required by section 186.22; the court erred in admitting defendant's rap sheets; the court erred in finding a witness unavailable; and sentencing error. We find merit in defendant's final contention and shall direct the trial court to modify defendant's sentence. In all other respects we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND September 2006 Incident

In the fall of 2006 Anthony Handy drove his cousin David Rangel to an apartment building to visit Rangel's fianceee. After searching for the apartment to no avail, Rangel got out of the car to ask for directions.

Rangel approached defendant and Krystal Ellis in front of apartment 107 and asked for directions to apartment 106. As Rangel walked by defendant, defendant pulled out a handgun. Rangel walked away and back to the car. Rangel did not see any indications that defendant was in a rival gang.

Rangel got back into Handy's car and told Handy to drive away. As they drove off, Rangel heard five or six gunshots. The back window of Handy's car shattered, and bullets struck Handy. Handy later identified defendant in a photographic lineup.

Handy suffered three gunshot wounds: back of the neck, left ear, and back. Handy was left with scar tissue in his lung, shrapnel in his body, and a deformed ear.

The following day, an officer saw defendant riding in a vehicle and initiated a traffic stop. The car sped away, with the officer in pursuit. As defendant's vehicle turned in front of them, a couple traveling in another car leaving a parking lot saw defendant throw something out of the car. Traffic stymied defendant, who fled the scene on foot. Eventually, officers apprehended defendant.

The couple in the other car directed officers to the parking lot. Officers located a clear baggie full of bullets and a loaded .357 handgun.

August 26, 2006, Incident

On a summer's evening, Romeo Laminero left a co-worker's party, accompanied by Karengee Pangilinan and Marissa Ruvalcaba and driving his black Honda Accord. When Laminero stopped at a red light, the Honda was bumped by another car from behind. Laminero got out of the car and saw defendant coming toward him with a gun. Laminero got back in the Honda and drove toward the freeway.

As they drove away, Laminero, Pangilinan, and Ruvalcaba heard gunshots. The Honda was bumped again on the passenger side rear door. The vehicle hit the center median and got stuck.

Co-defendant Justin Dale Canon, the driver of the other car, a red Dodge Neon, positioned his vehicle to prevent the Honda from moving. Defendant got out of the Neon and approached Laminero with a gun. Defendant put the gun to Laminero's head and demanded the car. Laminero saw a woman get out of the Neon while Canon remained in the driver's seat. Laminero hesitated, and defendant put the gun to his stomach and again demanded the car.

Defendant also pointed the gun at Pangilinan and ordered her out of the car. Pangilinan believed she saw a gun in Canon's hand but was not sure.

After Laminero got out of the car, he ran down the street. Defendant got into the Accord and drove away.

Stockton Police Officer John Black interviewed Laminero, Pangilinan, and Ruvalcaba at the scene. Black broadcast a description of the suspects and vehicles.

The following day, an officer observed Canon driving the red car. As Canon attempted to flee, he threw a TEC-9 firearm, a black backpack, and several nine-millimeter bullets from the car. Officers arrested Canon.

An investigation revealed the red car had black paint transfer and body damage. A loaded .22-caliber pistol lay on the front passenger seat.

Officers located Laminero's Honda about a mile from where the incident occurred. The Honda had been stripped of some parts and had red paint transfer on one side.

A detective interviewed Laminero a week and a half after the carjacking. From a photo lineup, Laminero identified Canon as the driver of the red car and defendant as the person who aimed a gun at him. Laminero also identified the TEC-9 firearm thrown from the red car as the weapon defendant pointed at him during the carjacking.

The Information

An information charged defendant with two counts of attempted murder (Pen. Code, §§ 664/187--counts 001 & 002; all further statutory references are to the Penal Code unless otherwise indicated); shooting at an occupied vehicle (§ 246--count 003); mayhem (§ 203--count 004); three counts of possession of a firearm by a convicted felon (§ 12021, subd. (a)--counts 005, 011 & 014); three counts of street terrorism (§ 186.22, subd. (a)--counts 006, 013 & 016); carjacking (§ 215, subd. (a)--count 007); three counts of assault with a firearm (§ 245, subd. (a)(2)--counts 008-010); and possession of ammunition (§ 12316, subd. (b)(1)--count 015).*fn1

In connection with counts 001, 003, and 004, the information alleged defendant intentionally and personally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) As to count 002, the information alleged defendant personally discharged a firearm. (§ 12022.53, subd. (c).) As to count 007, the information alleged defendant personally used a firearm. (§ 12022.53, subd. (b).) Counts 003, 004, and 007 through 010 further alleged defendant had been previously convicted of a serious felony offense pursuant to section 667, subdivision (a).

As to counts 001 through 004 and 007 through 010, the information alleged defendant had been previously convicted of a serious felony (§§ 1170.12, subd. (b), 667, subd. (d)), and committed the current offenses for the benefit of a gang (§ 186.22, subd. (b)(1)).

Counts 005, 006, 011, and 013 through 016 further alleged that defendant had previously been convicted of a serious felony offense. (§§ 1170.12, subd. (b), 667, subd. (d).)

Defendant entered a plea of not guilty and denied the special allegations. The trial court granted defendant's motion to sever the counts by incident date. Two jury trials followed.

Trial on September 12, 2006, Incident

At the beginning of trial, defendant made a Batson/Wheeler motion. Following oral argument, the trial court denied the motion.

Detective Jim Ridenour testified as an expert on Hispanic gangs. From photographs, Ridenour explained the relation of defendant's tattoos to the Sureno gang. In Ridenour's opinion, defendant had been an active Sureno gang member since at least 2003 and committed the shooting on behalf of the gang.

Krystal Ellis, defendant's girlfriend, was determined to be unavailable at trial. Accordingly, her preliminary hearing testimony was read before the jury.

Ellis lived in the apartment building at the time of the shooting. The month before the shooting, defendant visited her and had a short-barreled handgun. She did not see the gun again.

The day of the shooting, defendant stood with Ellis outside the apartment. Rangel approached them and bumped into defendant twice. Ellis tried to "yank" defendant into the apartment, but defendant resisted. Ellis went inside alone.

Ellis then heard gunshots and went outside to see if defendant had been hurt. However, Ellis could not find defendant. Although Ellis did not hear any gang-related statements, she knew defendant was a Sureno.

The parties stipulated defendant had been previously convicted of a felony.

The jury found defendant guilty as charged and found the special allegations true. Defendant waived a jury trial on the prior convictions. The trial court found the special allegations under counts 001 through 006 and counts 014 through 016 to be true.

Trial on August 26, 2006, Incident

Defendant was tried jointly with Canon. At the beginning of trial, defendant made a Batson/Wheeler motion. Following oral argument, the trial court denied the motion.

Laminero, Pangilinan, and Ruvalcaba testified regarding the events surrounding the carjacking.

Detective Ridenour testified as an expert on Hispanic gangs. Ridenour, an officer for 12 years, had spent two years as a member of the gang unit. He also received training in the area of criminal street gangs. Ridenour personally investigated gang-related incidents, interviewed gang members, and was familiar with gangs and their territories.

Ridenour testified the Surenos are an Hispanic gang with about 500 to 600 members locally. There are different subsets of the Surenos, based on geographic location.

Both defendant and Canon had ties to the Bay Area and tattoos of the number 19. Ridenour contacted the San Francisco Police Department and confirmed the existence of the "19th Street Mission District Surenos," a subset of the Surenos.

According to Ridenour, being in a subset of the Surenos did not diminish an individual's status as a Sureno. The Surenos' primary activities include homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and drug sales. Ridenour had opinions about defendant that were based in part on reading reports and talking to fellow officers.

Defendant had admitted to being a Sureno during a previous arrest. Ridenour opined that the carjacking was a gang-related activity.

The parties stipulated defendant had a prior felony conviction. The trial court found true the allegations of defendant's prior conviction.

Defense Case

Co-defendant Canon testified that Laminero, the victim, gave him the TEC-9 and the .22-caliber firearm that were in defendant's possession when he was arrested. Canon denied being present at the carjacking, stating he was asleep at the time.

Canon admitted he and defendant belonged to the 19th Street San Francisco Surenos. However, Canon stated he was not a Sureno when outside of San Francisco.

Defendant testified in his own behalf. Defendant admitted having belonged to the 19th Street Surenos for 15 years. He denied any involvement in the carjacking.

Defendant disputed Ridenour's assessment that all of his tattoos, particularly one that said "Mission," were gang related. According to defendant, the gun he threw out of the car when arrested was given to him by friends.

The jury found defendant guilty as charged and found the special allegations true. Defendant waived a jury trial on the prior convictions. The trial court found the special allegations true under counts 007 through 009, 011, and 013.

Sentencing

The trial court sentenced defendant as follows:

On count 001, attempted murder, an upper term of nine years, doubled, or 18 years, plus an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d) and a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C).

On count 002, attempted murder, a consecutive sentence of one-third the middle term, doubled, or four years eight months, plus a 20-year enhancement pursuant to section 12022.53, subdivision (c) and a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C).

On count 003, shooting at an occupied vehicle, a consecutive indeterminate term of 15 years to life, doubled, or 30 years to life, plus 25 years to life pursuant to section 12022.53, subdivision (d) and an additional five years pursuant to section 667, subdivision (a).

On count 004, mayhem, a consecutive sentence of one-third the middle term, doubled, or two years eight months, plus an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), plus a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C), which was stayed pursuant to section 654.

On counts 005, 006, 011, and 013 through 016, possession of a firearm by a convicted felon, possession of ammunition, and street terrorism, consecutive sentences of one-third the middle term, doubled, or one year four months each.

On count 007, carjacking, a consecutive indeterminate term of 15 years to life, doubled, or 30 years to life, plus 10 years pursuant to section 12022.53, subdivision (b).

On count 008, assault with a firearm, an upper term, doubled, or eight years, plus five years pursuant to section 186.22, subdivision (b)(1)(B), both of which were stayed pursuant to section 654.

On count 009, assault with a firearm, a consecutive sentence of one-third the middle term, doubled, or two years, plus five years pursuant to section 186.22, subdivision (b)(1)(B).

The court sentenced defendant to a determinate term of 96 years 8 months and an indeterminate term of 135 years to life, for a total of 231 years 8 months to life. Defendant filed a timely notice of appeal.

DISCUSSION I. BATSON/WHEELER

Defendant argues the trial court erred in finding no Batson/Wheeler violation during jury selection in either trial. According to defendant, the prosecution's removal of African-American men from the jury pool was "solely on the basis of group bias," requiring reversal.

Background First Jury

Two African-American men, A.T. and W.R., were in the ...


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