(Super. Ct. No. 01-1577) APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward Warriner, Judge. Affirmed.
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Faustino Nieto Romero murdered Javier Aguilar and Charles Smythe and committed several other crimes. Convicted by jury of those crimes and sentenced to two terms of life without possibility of parole and various other terms, the defendant appeals.
On appeal, the defendant contends (1) the trial court erred by denying his motion to quash the grand jury indictment; (2) the trial court erred by denying his motion to suppress statements he made to detectives concerning the Smythe murder; (3) the trial court erred by denying his request to have the jury instructed with a modified version of CALCRIM No. 358; (4) the trial court erred by admitting evidence of statements the defendant made to his wife concerning the two murders; (5) there was insufficient evidence of territorial jurisdiction over crimes he committed in Mexico; and (6) he was denied his constitutional right to a jury trial on territorial jurisdiction.
Finding no prejudicial error, we affirm.
The facts of this case can be divided into three sets: (1) the Aguilar murder and related crimes, (2) the Smythe murder and related crimes, and (3) crimes committed against Liliana Romero, the defendant's wife at the time.
Aguilar Murder and Related Crimes
Norteno gang member Ernesto Zaragoza was shot in the head on March 10, 2001, presumably by a Sureno gang member. As a result, several Nortenos decided to shoot a Sureno, particularly targeting Heriberto (Eddie) Gomez.
On March 11, 2001, Mike Perez and the defendant, who associated with the Nortenos, drove to the area of Sixth Street in Woodland, a known Sureno hangout. Both were armed with .38 revolvers. They parked and walked toward a group of men, including Gomez, Ricardo Aguilar, Javier Aguilar, and Leandro Escarsega, and opened fire. Gomez was shot in the face by Perez. The defendant walked up to Gomez, who was on the ground, and shot him point-blank in the head. Gomez survived, as did Ricardo Aguilera, who was shot in the shoulder. Javier Aguilar, however, was shot in the arm and chest and died as a result.
Soon after the Aguilar murder, the defendant traveled to Florida with his girlfriend Ana Barragan. During their trip, the defendant told Barragan that he was involved in the Sixth Street shootings.
Smythe Murder and Related Crimes
After the defendant returned to Woodland from Florida, Raul Ramos (a local Norteno shot-caller) and Michael Raquel (Ramos's methamphetamine supplier) hired the defendant to kill Charles Smythe, who was selling methamphetamine in competition with Raquel. The defendant agreed to kill Smythe for $15,000, plus whatever money and drugs Smythe had. Ramos and Raquel showed the defendant where Smythe lived in Gridley, and Ramos gave the defendant guns to use.
On April 18, 2001, Smythe and his fiancee Raquel Addison, were arguing at their residence, and Addison went outside. The defendant approached her, grabbed her, put a gun to her head, and threatened her. He took Addison inside to where Smythe was. He had Smythe lie on the floor and ordered Addison to tie him up.
In response to the defendant's demands for money and drugs, Smythe said he did not have drugs but money was in the car. Addison retrieved the money from the car, and the defendant put it in his jacket pocket.
The defendant tied up Addison and drove Smythe away from the residence. The defendant told Addison not to call the cops or he would kill Smythe.
The defendant drove Smythe to a rural road near Woodland. He got Smythe out of the car and had him lie down in the road. The defendant shot Smythe in the back, but Smythe jumped up and tried to run away. The defendant's gun jammed, so he chased down Smythe and cut his throat.
The defendant went to Ramos's home, where he told Ramos what he had done. Ramos paid the defendant, and the defendant said he was leaving for Mexico.
The defendant appeared at the home of his estranged wife, Liliana, late at night and announced that they were going to Mexico. Liliana and the defendant had discussed moving to Mexico, and she had prepared, but she did not want to go that night. The defendant grabbed their child, put her in the car, and threatened to take her away from Liliana if Liliana did not accompany him. Liliana decided to go because she did not want to be separated from her daughter. The defendant grabbed Liliana by the arm and put her in the car.
The family eventually arrived in Mexico. While there, the defendant told Liliana about the Aguilar and Smythe murders.
Liliana had opportunities to obtain help from others, but she did not know where she was in Mexico and she was afraid of what the defendant would do if she tried to flee. The defendant beat Liliana at times and forced her to have sex with him against her will.
Around June 2001, the defendant took Liliana to her grandmother's home in Mexico and allowed her to return to California.
Before his arrest the defendant told Ramos and Casimir Vargas about how he had committed the Sixth Street shootings. He also told Vargas about how he had committed the Smythe murder and related crimes. He described the crimes to his longtime friend, Xavier Cardona, and Cardona's wife, Gloria Anaya-Corona.
A grand jury issued an indictment charging the defendant with following crimes:
* Count 1: murder of Javier Aguilar (Pen. Code, § 187, subd. (a)), with special circumstances: financial gain (Pen. Code, § 190.2, subd. (a)(1)), multiple murders (Pen. Code, § 190.2, subd. (a)(3)), and furthering the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22));
* Count 2: attempted murder of Heriberto Gomez (Pen. Code, §§ 187, subd. (a); 664, subd. (a));
* Count 3: attempted murder of Ricardo Aguilar (Pen. Code, §§ 187, subd. (a); 664, subd. (a));
* Count 4: attempted murder of Leandro Escarsega (Pen. Code, §§ 187, subd. (a); 664, subd. (a));
* Count 5: omitted from the indictment;
* Count 6: murder of Charles Smythe (Pen. Code, § 187, subd. (a)), with special circumstances: kidnapping for robbery (Pen. Code, § 190.2, subd. (a)(17)), robbery (Pen. Code, § 190.2, subd. (a)(17)), kidnapping (Pen. Code, § 190.2, subd. (a)(17)), burglary (Pen. Code, § 190.2, subd. (a)(17)), multiple murders (Pen. Code, § 190.2, subd. (a)(3)), and furthering the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22));
* Count 7: kidnapping for robbery (Pen. Code, § 209, subd. (b)(1));
* Count 8: first degree robbery of Charles Smythe (Pen. Code, §§ 211, 212.5, subd. (b));
* Count 9: kidnapping of Charles Smythe (Pen. Code, § 207, subd. (a));
* Count 10: first degree burglary (Pen. Code, § 459);
* Count 11: assault with a firearm on Raquel Addison (Pen. Code, § 245, subd. (a)(2));
* Count 12: kidnapping of Liliana Romero (Pen. Code, § 207, subd. (a));
* Count 13: false imprisonment with force or violence (Pen. Code, §§ 236, 237, subd. (a));
* Count 14: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));
* Count 15: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));
* Count 16: infliction of corporal injury on the parent of the defendant's child (Pen. Code, § 273.5, subd. (a));
* Count 17: spousal rape (Pen. Code, § 262, subd. (a)(1));
* Count 18: spousal rape (Pen. Code, § 262, subd. (a)(1));
* Count 19: dissuading a witness (Pen. Code, § 136.1, subd. (c)(1)).
The indictment also charged enhancements in connection with the various crimes, including commission of the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) and use and discharge of a firearm (Pen. Code, § 12022.53).
After the presentation of evidence to the jury in the guilt phase of the trial, the trial court granted the defendant's motion to dismiss one of the spousal rape counts (count 17).
The jury hung on counts charging kidnapping of Liliana (count 12), spousal rape (count 18), and dissuading a witness (count 19).
The jury found the defendant not guilty of one of the counts alleging infliction of corporal injury (count 15) and that the gang special circumstances and enhancements were untrue as to the Smythe crimes. The jury found the defendant guilty on the remaining counts and found true the remaining special circumstances and enhancements.
After a penalty phase, the jury chose life without possibility of parole for the murders.
As the defendant does not raise sentencing contentions on appeal, we need not set forth the sentence in detail. The trial court sentenced the defendant to (1) a determinate term of six years eight months, (2) an indeterminate term of 40 years to life, and (3) two indeterminate terms of life without possibility of parole.
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