(Super. Ct. No. CRF072832)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Six percipient witnesses testified consistently to all or part of the narrative the prosecution argued to the jury -- that two inebriated gang members robbed a man on a bike in the middle of the night in a dark alley, kicked him in the head and ribs as he lay on the ground, jumped in their truck and rolled over him several times, moved forward then stopped and looked under the truck, accelerated down the street with the man stuck in the tire well, turned the corner, parked the truck, and took off running. Following a joint trial, a jury convicted defendants Aaron Richard Ouellette and Michael Angelo Sanudo of first degree murder, robbery, active participation in a criminal street gang, and assault, and found true the special circumstance that the murder was committed during a robbery.
Ouellette testified he did not rob the decedent, Willie Dean Roberts, Jr., did not intend to hurt him, and did not know that he had run over him or dragged him under the truck for approximately 730 feet. Sanudo did not testify, but his lawyer argued he committed no crime; rather, he was unfortunately at the wrong place at the wrong time. On appeal, both defendants attempt to retry their case, casting aspersions on the credibility of the percipient witnesses and insisting that the killing was an accident unrelated to any gang activity. They raise a host of meritless challenges to the jury instructions and the sufficiency of the evidence. We affirm.
Two skilled defense lawyers subjected all six percipient witnesses to grueling cross-examination. As a result, the jury was well acquainted with the weaknesses in their abilities to perceive and recall what they heard and saw in the wee morning hours of September 29, 2007. Most notably, five of the six had been drinking, and most of them testified to facts they had not disclosed to the police officers at the scene of the crimes or shortly thereafter. They were emotionally traumatized by the grisly death they witnessed and, for some, they had difficulty testifying about the events two and a half years later. Viewing the evidence, however, in the light most favorable to the prosecution, as we must, the witnesses provide a chilling account of what defendants did and said to the victim.
Riki Clark and Erica Hill were outside Clark's apartment under a carport smoking when Roberts rode by on his bicycle. Shortly thereafter they saw three people in a fight. Hill heard defendants ask Roberts, "What do you got for us, nigger?" and then demand, "Give us what you got for us, nigger." She saw the driver, Ouellette, push Roberts off his bike. Both Clark and Hill saw defendants kicking him; Ouellette kicked Roberts in the face six to seven times while Sanudo kicked him in the ribs. Ouellette rifled through Roberts's pockets, and papers were "flying in the air" and onto the ground. Ouellette stuffed some of the items into his own pockets and Sanudo kicked Roberts again.
According to Hill, defendants then got into their truck and backed up over the victim, going forward and back about three times in the carport driveway. Roberts became lodged near the pickup's right front tire. Sanudo leaned out of the passenger window and looked toward the front of the truck. He then opened the front door, looked under the front right tire, and kicked Roberts in the head four times. Ouellette went forward and then in reverse a couple more times, but Roberts remained lodged under the pickup. Hill chased after the truck. But the driver stopped, got out, and lifted his shirt to expose what Hill thought was a gun near his belt buckle. She ran away. With Roberts still trapped, Ouellette got back into the truck and drove down the alley.
Three of the other witnesses were together at Latoya Perico's apartment. Naqueita Cox and Latoya Shaw were on the balcony overlooking the alley when they heard tires screeching. Cox reported that it sounded like teenagers "burning rubber." She testified that the truck stopped and either the driver or the passenger got out, looked at the body under the truck, and then got back into the truck. Shaw testified they both got out of the truck to look under it, and they got back in together. Perico testified that after hearing Cox shout that someone was trapped under the truck, she ran outside and saw two men get out of the truck, get back in, and drive away.
Christina Dearden was the sixth neighbor to testify. From her bedroom, she heard screeching tires. She looked out her window and saw a white driver and a Mexican passenger get out of a truck. At the preliminary hearing she testified that the passenger looked under the truck and ran away while the driver walked away, but at trial she testified it was the passenger who looked under the truck and walked away while the driver immediately ran away.
As mentioned above, defendants attempted to impeach all six witnesses by demonstrating inconsistencies in their testimony and their failure to disclose pertinent details on the night of the murders. All but Dearden had been drinking. Moreover, defendants insisted that the forensic evidence did not support the eyewitness accounts.
For example, the pathologist testified that Roberts's injuries were consistent with being trapped under the truck and dragged, and not with being run over multiple times as Hill had testified. Moreover, there was no blood or body tissue in the driveway area where defendants purportedly ran over the victim. Nor was there any blood on either of defendants' shoes or fingerprints on any of the contents of the victim's wallet.
The first police officer on the scene noticed a large pool of blood, a bicycle, and papers in the alley. He followed the trail of blood to a blue pickup truck parked approximately 730 feet away. He saw the bottom of Roberts's shoe sticking out from beneath the truck. Roberts remained pinned under the front tire. Other officers found Roberts's wallet in the alley with some of its contents strewn next to it.
A toxicologist testified that based on blood samples taken the next morning from defendants, Ouellette's blood alcohol level would have been about .19 percent and Sanudo's would have been about .15 percent at the time of the incident.
A gang expert testified that both defendants were active Norteno gang members on September 29, 2007. Both had admitted to being gang members on multiple occasions. They had gang tattoos, accompanied other gang members, and frequented gang areas. The expert explained the primary activities of the Norteno gang included battery, mayhem, assault with a deadly weapon, attempted murder, and murder. He testified to numerous predicate offenses, which are not challenged on appeal. When given a hypothetical situation involving facts similar to what occurred in the alley on September 29, he opined that the crime was committed in association with the Norteno street gang, furthered the criminal conduct of the Norteno street gang, and benefited the Norteno street gang.
Ouellette testified in his own defense. He disputed the eyewitness testimony and asserted that all six witnesses were wrong. He did not initiate a fight with Roberts, he did not threaten him verbally, he did not kick or stomp him, he did not take anything from him, he did not intend to hurt him, and he did not know the man was stuck under the truck. Rather, he claimed it was Roberts who had started the fight after he asked Roberts for a cigarette. Ouellette merely tried to defend himself; indeed, he could not strike the victim because his arm was injured. He was intoxicated when he got into the truck, the radio was blasting, and when he had difficulty steering the truck on the wet pavement he believed he had a flat tire. He parked the truck in front of Sanudo's mother's apartment and ran because he was being pursued by people he did not know, and as an intoxicated parolee, he wanted to avoid arrest.
The prosecution introduced evidence of gang indicia Sanudo possessed in jail, including a picture of his son in a red jersey with the number 14 on it. The color red and the number 14, the gang expert instructed the jury, were commonly associated with the Nortenos. Sanudo was also in possession of a letter that outlined the history of the Norteno gang.
Sanudo did not testify, but his son's godmother testified that she gave her godson the red shirt, and she had no familiarity with gangs or the symbolism associated with the color or number. His girlfriend testified that Sanudo had never claimed to be a Norteno.
The jurors deliberated for 13 hours over two days and asked for Hill's testimony to be reread. They found defendants guilty of murder and found the robbery special circumstance true, but acquitted on both the torture and gang special circumstance allegations. The jury found them guilty of robbery but found not true the allegations that the defendants inflicted great bodily injury during the robbery and committed the robbery to promote a gang. The jury found defendant Sanudo guilty but acquitted Ouellette of active participation in a criminal street gang. They were both acquitted of assault with a deadly weapon, but convicted of the lesser included offense of simple assault.
The court sentenced defendants to life in prison without the possibility of parole. All other terms of imprisonment were stayed. (Pen. Code, § 654.)*fn1
DISCUSSION I Instructional Error A. Lesser Included Offense by Tacking on the Enhancement
Criminal defendants have tried time and time again to append the enhancing allegations to the charged offense. And, over time, the California Supreme Court has rejected a stream of creative variations of the same argument in very different contexts. For example, sentence enhancements are not the "functional equivalent" of elements of the greater offenses for double jeopardy purposes (Porter v. Superior Court (2009) 47 Cal.4th 125, 137-138 (Porter)), nor do convictions on offenses and enhancements offend the prohibition for multiple convictions (People v. Sloan (2007) 42 Cal.4th 110, 119-120 (Sloan)). Despite an unbroken line of persuasive authority to the contrary, defendants boldly ask us to chart a new course in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and its progeny by finding that the great bodily injury enhancement is an element of the crime of robbery and therefore the trial court erred by failing to instruct sua sponte that assault was a lesser included offense of robbery. The California Supreme Court has soundly and repeatedly rejected the very premise of defendants' argument.
In People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), the defendant contended that the trial court should have instructed the jury sua sponte that assault with a deadly weapon is a lesser included offense in a charge of robbery enhanced by use of a firearm. (Id. at p. 96.) Rejecting the defendant's attempt to merge the allegations pertaining to the charged offense with the allegations pertaining to an enhancement, the court held that among other glaring deficiencies a "use" enhancement is "not part of the accusatory pleading for the purpose of defining lesser included offenses . . . ." (Ibid.) The Supreme Court relied on the fact that the majority of Court of Appeal decisions have held that "'an allegation of firearm use for purposes of Penal Code section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense.' [Citations.]" (Wolcott, at pp. 100-101.)
On this point the Wolcott decision remains intact. As the Court in Sloan, supra, 42 Cal.4th at p. 119, footnote 4 reiterated, "Wolcott . . . held that enhancements are not considered part of an accusatory pleading for purposes of defining or instructing sua sponte on lesser offenses of which a defendant might be convicted." More emphatically, the court admonished, "Appellant cites no cases, and our research discloses none, that permit considering enhancements for determining lesser included or necessarily included offenses for any purpose." (Id. at p. 120.)
Similarly, in People v. Bright (1996) 12 Cal.4th 652 (Bright), disapproved on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, footnote 6, the defendant again attempted to combine the offense with an enhancement, this time to set the stage for a double jeopardy claim. The Legislature had determined that an attempted murder that was premeditated merited greater punishment than other attempted murders. The jury convicted the defendant of attempted murder but hung on the enhancement. The defendant claimed that the failure to convict him of the greater offense amounted to an acquittal for double jeopardy purposes.
Not so, concluded the Supreme Court once again. "Under both federal and California law, greater and lesser included offenses constitute the 'same offense' for purposes of double jeopardy." (Bright, supra, 12 Cal.4th at p. 660.) And it is true that, pursuant to section 1023, an acquittal is a bar to another prosecution for any necessarily included offense a defendant might have been convicted of under the charges set forth in the accusatory pleading. (Bright, at pp. 660-661.) The court rejected, however, the defendant's suggestion that the offense, coupled with the enhancing allegation, constituted a greater degree of the offense of attempted murder. "[W]e conclude that the provision of section 664, subdivision (a), prescribing a punishment of life imprisonment with the possibility of parole for an attempt to commit murder that is 'willful, deliberate, and premeditated' does not establish a greater degree of attempted murder but, rather, sets forth a penalty provision prescribing an increased sentence (a greater base term) to be imposed upon a defendant's conviction of attempted murder when the additional specified circumstances are found true by the trier of fact." (Bright, at p. ...