Court: Superior County: Los Angeles Judge: Alfonso M. Bazan Los Angeles County Super. Ct. No. KA 032117
The opinion of the court was delivered by: Baxter, J.
A jury convicted defendant Ronald Bruce Mendoza of first degree murder (Pen. Code, § 187, subd. (a)),*fn1 and found true the allegation that he personally used a firearm in commission of the murder (§ 12022.5, subd. (a)). The jury also found true the three special-circumstance allegations that defendant intentionally killed a police officer (§ 190.2, subd. (a)(7)), that he committed murder for the purpose of avoiding a lawful arrest (§ 190.2, subd. (a)(5)), and that he intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)). Thereafter the jury returned a verdict of death. At the sentencing hearing, the trial court struck the lying-in-wait special circumstance and then entered a judgment of death. Appeal to this court is automatic. (§ 1239, subd. (b).)
Because the trial court had no authority to strike a special circumstance found by the jury, we reinstate the lying-in-wait special circumstance. As so modified, the judgment of death is affirmed.
I. Facts A. The Guilt Phase
At approximately 1:30 a.m. on May 11, 1996, defendant shot Pomona Police Officer Daniel Tim Fraembs in the face and killed him. The evidence included the testimony of an eyewitness to the shooting, defendant's pager found at the crime scene, testimonial and physical evidence linking defendant to the purchase of the murder weapon and ammunition, and telephone conversations between defendant and his mother, tape-recorded with court approval.
Defendant, also known as "Boxer," was a member of the Happy Town street gang. In November 1995, defendant was released on parole from a California Youth Authority facility (CYA facility; now Div. of Juvenile Facilities). As two of the conditions of parole, he was not to possess any deadly weapon and was not to knowingly associate with gang members. Defendant was informed that violation of a parole condition could result in his return to a CYA facility, where he would face 575 days, plus an additional one year in custody for possession of a weapon. Defendant signed a form stating he understood the parole conditions.
Testimony from Jason Meyers and Dean Coleman established that about two weeks before Officer Fraembs's murder, Meyers drove defendant to Coleman's residence, where defendant purchased a Haskell .45-caliber handgun from Coleman for $150 or $155. Meyers agreed to buy bullets for the gun, because defendant did not have the required California driver's license or identification card to do so. They went to a Big 5 Sporting Goods store, where Meyers used defendant's money to purchase a green and yellow box of Remington .45-caliber bullets.
Johanna Flores was 19 years old at the time of the 1997 trial. Her nickname was "Goon," but she did not belong to any gang. Flores had been in a romantic relationship with defendant and was with him when he shot Officer Fraembs. She testified as the key witness against defendant regarding the events of the night leading up to the murder.
Flores testified that on May 10, 1996, after her work shift ended at 11:00 p.m., she went with Chantal Cesena to the Pomona home of a Happy Town gang member named "Tank," where Flores saw defendant and another gang member named Jasper. Defendant wore black jeans, a white shirt, and a black bomber-style jacket with orange lining, small pockets, and a front zipper. Defendant, Flores, Jasper, and Chantal Cesena sat talking together for a while. At some point, Chantal Cesena received a call from her relative, Joseph "Sparky" Cesena, asking her to pick him up.*fn2 Chantal declined, saying she had to do something else.
At a later point, defendant and Flores argued over a page defendant received from Brandy Valore, the mother of his child. Flores punched defendant on his left side, hitting a gun tucked into his waistband. Flores saw the gun when defendant removed it from his waistband to check it. She had seen defendant with this gun before; he said it was a .45-caliber gun.
After things calmed down between defendant and Flores, they both spoke with Sparky by telephone. Defendant and Sparky agreed to meet by the railroad tracks, and Flores decided to go along. When they left Tank's house, defendant was carrying his gun and his pager.
On their way to the railroad tracks, defendant and Flores encountered a man and two women (Jason Meyers, Cherie Hernandez, and Elva Arambula) who were walking from the opposite direction. When one of the women (Hernandez) gave defendant a cigarette and lit it for him, Flores got mad and cursed and slapped defendant.*fn3 The two groups separated, and defendant and Flores continued toward the railroad tracks. As they neared the tracks, Sparky appeared from a small pathway through some bushes. Sparky wore gray khaki pants, a white shirt, and a gray and black striped sweater. He had a knife.
As the three walked back to Tank's house, a bright light turned on behind them. Defendant looked over his left shoulder and said, "Oh, shit, the jura." "Jura" meant "cops." A police car stopped behind them, and Officer Fraembs exited the vehicle. Defendant said, "Oh, shit. I got the gun." Flores told defendant to run, because she did not want him to "get in trouble" or "do anything stupid." Sparky also told him to run. Defendant stayed put.
Officer Fraembs asked, "How are you guys doing tonight?" Flores described Fraembs as "real nice" and not like other police officers who were mean or sarcastic. She thought Fraembs might have stopped them "for curfew check, nothing major." Defendant responded to Fraembs's inquiry with "an attitude," saying something like, "What the hell are you stopping us for" or "What are you stopping us for." Defendant was being "rude" and "a jerk." At that point, Fraembs told defendant and Flores to "have a seat right there," indicating the curb. He called Sparky, who was wearing a knife sheath and was nearest to him, over to the patrol car. Sparky put his hands on the hood, and Fraembs stood behind him.
As Officer Fraembs started patting down Sparky, defendant slowly moved behind Flores and draped his left arm over her shoulder while leaving his right hand free. Defendant was standing very close behind Flores, with his chest against her back, and leaning forward as they moved toward the street. He slowly pushed her forward, forcing her to step off the curb into the street. Flores felt defendant slide his hand down between himself and the small of her back as he continued to move her toward Fraembs, who was still patting down Sparky. When they got within six or seven feet of Fraembs, defendant pushed Flores aside.
At that point, Flores turned back to look at defendant and saw him with his arms stretched out and both hands holding the gun. He took another step or two toward Officer Fraembs, and pointed the gun at the officer's upper body from a distance of about two and a half feet. Defendant fired once, shooting Fraembs in the face.
Immediately afterward, defendant turned the gun on Flores and asked, "Are you going to say anything?" Flores replied, "No, I didn't see nothing, I didn't hear nothing, I don't know nothing." Flores took defendant's threat seriously, and when he repeated his question, she repeated she didn't hear, see, or know anything.
Defendant told Flores to run, then he took off running. Flores starting running behind defendant, but soon lost sight of him. Defendant did not look back at Flores and did not wait for her to catch up to him. Sparky had already run away, back toward the bushes from which he had earlier emerged.
As Flores ran, she began hearing sirens and ran faster. She reached her home, but did not sleep. She did not call 911 or the police to report the shooting, because she was afraid defendant and his gang would do something to her. At sunrise, Flores told her sister what had happened.
Early in the morning of May 11, 1996, Flores called defendant at his home. His brother Angel, who belonged to the Happy Town gang and was known as "Bandit," answered. Angel said something threatening to Flores, then handed the phone to defendant. When Flores asked how defendant was, he replied, "I'm fine. I'm a killer." Defendant said he didn't give a fuck, and "It's just another day in the hood." Defendant asked Flores about his pager and told her, "I think I lost it over there."
Later that day or the following day, Flores told her parents what happened. Her father spoke with their family priest, Father Charles Gard, who offered to speak with Flores. On May 15, 1996, Flores told Gard about the shooting and defendant's involvement. She was "very upset" and "very distraught," yet "very confident in what she was saying."*fn4 Gard persuaded Flores to talk to the police.
Two homicide detectives interviewed Flores at Father Gard's church. At first Flores did not tell the detectives about Chantal and Jasper being at Tank's house before the shooting. Chantal was Flores's good friend and Flores did not want anything to happen to her. Flores was also afraid that Jasper might do "something" if she said he was there. But even though Flores had been threatened by both defendant and his brother, she ultimately decided to testify because she believed that what defendant did was wrong, and that he had the chance to run away but did not do so. At Flores's request, however, the Pomona Police Department relocated her and her family.
Evidence at the crime scene corroborated Flores's testimony and statements. Officer Fraembs was found shot in the face, with his gun secured in its snapped-shut holster and his baton still attached to his belt. A spent shell casing was on the ground about 12 feet from the body, and an expended bullet lay in the grass about 40 to 50 feet away. A senior criminalist with the sheriff's department testified that the casing was made by Remington Peters and designed for a .45-caliber semiautomatic weapon, and was consistent with the expended bullet. The criminalist's examination of these items indicated that the projectile could have been fired from a Haskell .45-caliber semiautomatic weapon. Additionally, defendant's pager was found at the scene.
In a search of defendant's residence, police found a green and yellow Remington .45-caliber ammunition box bearing a Big 5 Sporting Goods price tag in the bedroom occupied by defendant's mother and Harry Lukens. The box contained one .32-caliber bullet and an otherwise empty plastic ammunition tray, on which defendant's left thumbprint was found. A black nylon camera lens case containing 17 Remington .45-caliber bullets was recovered from a trash can in the enclosed back yard. Lukens identified the lens case as his, but not the bullets. He had not seen the case for a year and did not know how it got into the trash can.
Defendant made incriminating statements after the murder. He initially sold the murder weapon to Joseph Silva for $100, telling him, "Hey, did you know I killed a cop?" Defendant later decided to get the gun back and told Silva, in a police-recorded telephone conversation, "I'm gonna have somebody come and pick it up from you man . . . . I can't have that in Pomona." Around that time, a Happy Town gang member named "Casper" warned Silva that he and his entire family would be killed if Silva were to testify that defendant admitted shooting a police officer. Defendant's brother Angel retrieved the gun from Silva.
While defendant was in custody, the court approved the recording of his telephone conversations with his mother, Lola Delgado. On May 22, 1996, defendant told his mother to burn a certain jacket. Although the statements in that conversation were not entirely clear, defendant apparently was referring to the jacket he wore the night of the murder, a black and orange jacket with tiny pockets. On May 24, 1996, defendant told his mother he wanted "Goon" (Flores) to be told she "better realize what she's doing." After complaining that Goon was "suppose to be gang" but "now she's fucking crumbling down," defendant told his mother, "we gotta do something" because "if she's a witness, I'm gonna be gone." Defendant also warned that "as far as she's willing to go, the police ain't going to protect her."
Rupert Bascomb, a private security guard, testified he was on duty at a company at the time and near the scene of the murder. He observed a police car cruise by "real slow" and then drive out of sight. Shortly thereafter, Bascomb heard a gunshot and then a woman's voice say, "Let's get out of here" or "Let's move from here." He thought he saw two possibly male figures wearing dark clothing run toward an incinerator behind a building. One had something in his hand.
The defense sought to undermine Johanna Flores's credibility and to establish her bias against defendant. It also argued that if the jury believed defendant was the shooter, it should find he did not act with premeditation. Finally, the defense contended that Officer Fraembs did not act lawfully when he stopped and detained defendant, Sparky, and Flores.
B. The Penalty Phase 1. The Prosecution Case
The prosecution presented evidence that on July 30, 1994, Ryan Schultz and his girlfriend drove to a house in Pomona to smoke marijuana and "get high" with some friends. While Schultz was inside the house, more than 10 gunshots were fired outside. Schultz went outside and saw that his brand new 1994 Ford Thunderbird had been "shot up." Three or four individuals, including defendant, were standing by Schultz's car, and defendant was holding an M-1 military rifle. Schultz ran back into the house, followed by defendant and his companions. Defendant used his rifle to hit Schultz in the face and on the side of the head. Schultz fell to the ground and was beaten. Afterward, defendant "basically" told Schultz to "get the fuck out the house before we kill you." Schultz suffered injuries to his head, face, and arms; his jewelry and money were taken.
The prosecution also presented victim impact testimony from Officer Fraembs's adoptive mother and sister, and from two police officers who had worked and formed close friendships with him.
Defendant's aunt testified regarding defendant's family and his care by his grandparents while his mother was in prison. His aunt was "very surprised" to learn of his involvement in the killing of a police officer, and asked the jury to consider defendant's daughter and family.
Brandy Valore, the mother of defendant's baby daughter, testified she was first attracted to defendant because he had "good manners" and was "real polite, very intelligent." Valore said defendant loved his daughter and asked the jury to spare his life for his daughter's sake.
II. Discussion A. Sufficiency of Premeditated and Deliberate Murder Evidence
Defendant contends the evidence was insufficient to sustain his conviction of premeditated and deliberate first degree murder. This claim is without merit for the reasons below.
In assessing the sufficiency of the evidence supporting a jury's finding of premeditated and deliberate murder, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Burney (2009) 47 Cal.4th 203, 253; People v. Perez (1992) 2 Cal.4th 1117, 1124.) When the circumstances reasonably justify the jury's findings, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment. (Ibid.)
" 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " [Citation.]' (People v. Sanchez (2001) 26 Cal.4th 834, 849; see People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)" (People v. Solomon (2010) 49 Cal.4th 792, 812.)
In People v. Anderson (1968) 70 Cal.2d 15, we identified three types of evidence -- evidence of planning activity, pre-existing motive, and manner of killing -- that assist in reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. (People v. Solomon, supra, 49 Cal.4th at p. 812.) We have made clear, however, that " 'Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.' [Citations.]" (Ibid.) Using Anderson as a guide, we turn to the instant record.
Defendant contends there was no evidence of a prior plan to kill or even meet Officer Fraembs, emphasizing it was Fraembs who initiated the early morning encounter. Defendant also points to Flores's testimony that he was nervous after shooting the officer and acted like he did not know what he had just done; this, he claims, did not suggest he killed as the result of "pre-existing reflection" rather than "mere unconsidered or rash impulse." (People v. Perez, supra, 2 Cal.4th at p. 1125.) We are not convinced.
In People v. Brady (2010) 50 Cal.4th 547, the defendant shot a police officer only a few minutes after the officer first shined his patrol vehicle's spotlight on the defendant's car. In rejecting the argument that evidence of extensive planning was lacking, we found that a rational trier of fact could have concluded that the defendant, knowing he illegally possessed a firearm, rapidly and coldly formed the idea to use his firearm before the officer became aware of its existence. (Id. at pp. 563-564; People v. Solomon, supra, 49 Cal.4th at p. 812 [cold, calculated judgment may result from thoughts occurring in rapid succession].)
Here, as in People v. Brady, the record contains substantial evidence that the killing did not result from an unconsidered or rash impulse. Although defendant did not initiate the contact with Officer Fraembs, Flores's testimony amply supported the inference that defendant devised a plan to kill Fraembs once the officer indicated he would conduct a weapons search. As Fraembs began his patdown of Sparky, defendant acted as if he were complying with Fraembs's direction to sit down on the curb. By using Flores as a shield and carefully controlling her movement, defendant was able to approach Fraembs without attracting attention and to maneuver himself to a position of advantage over the unsuspecting officer. Once defendant got within six or seven feet of the officer, he was able to draw his gun while still screened by Flores. Defendant then pushed her aside and quickly stepped even closer to Fraembs. He took aim with both arms extended and shot the officer in the face. Defendant's plan proved successful, as Fraembs was taken utterly by surprise and had no opportunity to reach for his own weapons.
Defendant claims the prosecution failed to show a motive consistent with planning and deliberation, because the evidence was insufficient to prove he killed Officer Fraembs in order to avoid arrest and parole revocation. We disagree.
Although defendant was never heard to say he killed to avoid arrest and parole revocation, ample circumstantial evidence supported this point. Defendant was on parole and subject to parole conditions that he not possess a weapon and not knowingly associate with gang members. Having signed a form acknowledging the terms of his parole, defendant knew that a violation could result in his being returned to a correctional institution for 575 days, plus a possible additional year for the actual possession of a weapon.
The evidence of defendant's parole conditions provided context to his murderous action. A month or two before the shooting, defendant told Flores he was on parole and "didn't want to go back" or "couldn't go back" to jail. More critically, on the night of the murder, defendant told Sparky to "hurry up" and meet him by the railroad tracks "because I'm strapped," meaning defendant was carrying a gun, and "I don't want to get busted." When Officer Fraembs pulled up behind defendant, Sparky, and Flores, defendant said, "Oh, shit, the jura [cops]" and "Oh, shit. I got the gun." Both Sparky and Flores told defendant to run, but he did not do so. Instead, defendant was "rude" and acted like a "jerk" in challenging Fraembs. Fraembs responded by conducting a weapons search, presumably for officer safety reasons.
As the prosecution told the jury during closing argument, it was reasonable to infer from this evidence that once Officer Fraembs started to pat down Sparky, defendant figured his turn would be next. Given the evidence of Fraembs's actions and defendant's knowledge that his gun possession violated his parole conditions, a rational jury could conclude that defendant's motive for killing the officer was to avoid arrest and a resulting return to custody. (See, e.g., People v. Vorise (1999) 72 Cal.App.4th 312, 318-319, 322 [rational jury could conclude that defendant shot victim to avoid lawful arrest, where evidence showed defendant drew his weapon and fired after hearing victim's wife say she was going to call police].)
Defendant concedes that a single shot to the head might support the inference of a deliberate intent to kill. We agree. (E.g., People v. Caro (1988) 46 Cal.3d 1035, 1050 ["a close-range gunshot to the face is arguably sufficiently 'particular and exacting' to permit an inference that defendant was acting according to a preconceived design"].) Defendant argues, however, that "there are absolutely no facts to support planning activity" on his part. We could not disagree more.
None of the evidence suggested that defendant fired his weapon in a rash or panicked reaction to Officer Fraembs's appearance on the scene; indeed, all the evidence pointed to the contrary. Although defendant was startled when Fraembs first pulled up, he refused to flee and instead opted to confront the officer. When Fraembs indicated he would conduct a weapons search, defendant reacted in a cool and focused manner: he contrived to act as if he were following Fraembs's instruction to take a seat on the curb, but in actuality he formed a plan to approach and shoot Fraembs while the officer was distracted with Sparky. Because the manner of killing reflected stealth and precision, a rational jury could conclude that a preconceived design was behind the killing. (See People v. Halvorsen ...