APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle, Judge. (Los Angeles County Super. Ct. No. TA103939)
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part, reversed in part, and remanded.
Defendants Cristian Argeta and Camilo Hernandez appeal from a jury verdict convicting them of one count of murder (Pen. Code, § 187 subd. (a)) and five counts of attempted murder (Pen. Code, §§ 187 subd. (a), 664).*fn2 We vacated submission and received further briefing in light of the California Supreme Court's recent decision in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) and the United States Supreme Court's decision in Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455] (Miller). In the published portion of this opinion we discuss the application of these decisions to the punishment imposed on the appellants. Based on that analysis, we affirm as to Argeta but conclude the trial court's sentencing determinations regarding Hernandez must be reversed.
Besides arguing application of these cases, Hernandez contends: (1) the court committed reversible error in denying his motions under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 166-168, as recognized in People v. Hartsch (2010) 49 Cal.4th 472, 486, and Batson v. Kentucky (1986) 476 U.S. 79 (Batson); and (2) the court abused its discretion when it imposed consecutive rather than concurrent sentences. We conclude the court did not err in denying Hernandez's Wheeler/Batson motions because the record reflects race-neutral grounds for striking the prospective jurors at issue; the court did not abuse its discretion in sentencing since there were factors supporting imposition of consecutive sentences.
Argeta presents the following claims, in addition to his argument about the application of Miller and Caballero: (1) the court prejudicially erred in admitting his statement that he wanted to "kill as many Black enemy gangsters as possible," statements he made in a recorded jailhouse telephone conversation, and evidence that members of Argeta's gang are out to kill African-Americans; and (2) prosecutorial misconduct during oral argument. We conclude the court did not prejudicially err in admitting Argeta's statements or Brown's testimony, and the prosecutor's statements during closing argument did not amount to prosecutorial misconduct.
Both defendants also identify clerical errors in their abstracts of judgment and Argeta points to an error in the minute order of the sentencing hearing. We shall direct the trial court to amend those abstracts and minute orders to the extent we find them to be erroneous.
FACTUAL AND PROCEDURAL SUMMARY
On November 25, 2008, Marvin Ceasar, Kevin Somerville, and Osborne Brown were walking to the foster home of Trashell Rader, Patricia Rader, and Tia Brooms. All six were teenagers and African-American. As Ceasar, Somerville, and Brown were walking, two young Hispanic men passed them. As they did, one of the Hispanic men said, "Compton Varrio Tortilla Flats" (CVTF) or "T Flats," which is the name of an Hispanic gang in Compton with a reputation for violence against African-Americans. Ceasar, Somerville, and Brown continued to walk. When they arrived at the foster home of Brooms and the Raders, the girls' foster mother refused them entry into the house because they were smoking. The six friends left the house and walked to a corner. Up the street, Somerville and Brown saw two Hispanic men. Ceasar could not see their faces or discern if they were the same two that had passed them before. The shorter of the two was kneeling and had his arms extended as if pointing a gun and the taller man was squatting next to him. Brown yelled that they were going to shoot. As the six friends began to run, gunshots rang out. Ceasar was shot in the leg and Trashell was shot in the chest. Brown tried to resuscitate Trashell but she died at the scene. Ceasar survived and was taken to the hospital. Physicians were unable to remove the bullet from his leg.
Guillermo Reyes was walking in the area when he heard what he thought were firecrackers. He saw two young Hispanic men, one short and the other tall. Both were running from the shooting. He heard one of the men tell the other to run faster. Reyes was unable to identify the men from photographic lineups.
Mercedes Martines was in the neighborhood selling corn from her van. As she was driving toward the corner where the shooting occurred, she heard what sounded like firecrackers. She saw two young men running on the street away from the shooting. She recognized one of them as Hernandez, whom she knew from the neighborhood. She did not recognize the other man, but she thought that he was shorter than Hernandez.
Martines told Detective Hugo Reynaga, the investigating officer, that she recognized Hernandez and she showed Reynaga where Hernandez lived, the nearby house of one of his family members, and a third house (the Solorzano residence) where she frequently saw Hernandez with gang members. Martines picked out Hernandez's photograph from a photographic lineup.
Reynaga went to Hernandez's home. Hernandez was not there, but his parents consented to a search of his bedroom. Reynaga saw boxes and paper with CVTF gang graffiti, including writings that said "nigger killer." He booked these items into evidence.
Reynaga went to the Solorzano home looking for Hernandez. He interviewed Jose Solorzano, Jr., a 12-year-old boy. The boy told Reynaga that he knew Hernandez and had seen him earlier in the evening with "K9," Argeta's gang moniker. Solorzano told detectives he heard defendants yelling for his uncle, Eusebio Navarrete, an older member of the CVTF gang who was under house arrest at the Solorzano residence. Solorzano heard defendants tell Navarrete that they had just shot someone, had stashed the gun, and needed a place to hide. Navarrete refused to let them into the house. The Solorzano boy identified Hernandez from a six-pack photographic lineup. A few days later he again identified Argeta from a six pack photographic lineup.
The day after the shooting, Ceasar identified both defendants from photographic lineups as the two men they had passed in the street. Ceasar was unable to see the faces of the shooters and could not say whether they were the same men he saw earlier.
Somerville identified Hernandez from a photographic lineup. Somerville was unable to identify Argeta from a photographic lineup. Somerville identified both defendants in court as the two he had seen up the street at the time of the shooting, and he identified Argeta as the shooter.
About a week after the shooting, Brown identified Hernandez from a photographic lineup, but he was unable to identify Argeta. In court, Brown identified Argeta as the person he had seen kneeling and holding a gun.
Argeta was arrested at his house wearing a hat that bore the letters "CVTF." Police officers found papers with gang writing in Argeta's room. One of the writings said, "every day NK all day." "NK" in CVTF nomenclature stands for "nigger killer." Another writing referred to "dropping all kinds of birds from trees," which means assaulting or shooting at members of a local African-American gang.
Defendants were charged with one count of murder (§ 187, subd. (a)) and five counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a).) It was alleged as to all counts that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that a principal personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)). As to Argeta it also was alleged that he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d).) Defendants pleaded not guilty and denied the special allegations.
Jurors in the first trial were unable to reach a verdict and a mistrial was declared. The jury in the second trial found defendants guilty on all counts. It found the murder to be in the first degree and the gang allegations to be true. It also found firearm allegations to be true as to Argeta.
The court sentenced Argeta to 25 years to life for first degree murder plus 25 years to life for the firearm enhancement (§ 12022.52, subds. (d) & (e)(1)), and a life term for each of the five counts of attempted murder plus 25 years to life for the firearm enhancements. The sentences were to run consecutively. The court stayed the gang and remaining firearm enhancements.
The court sentenced Hernandez to 25 years to life for first degree murder plus life in prison for each of the attempted murder counts, with 15-year minimum parole eligibility periods pursuant to section 186.22, subdivision (b)(5).*fn3
These timely appeals followed.
Hernandez contends the court committed reversible error in denying two defense motions under Wheeler, supra, 22 Cal.3d 258 and Batson, supra, 476 U.S. 79. He argues the court impermissibly supplied the prosecutor with a race-neutral reason for challenging three Hispanic jurors and the prosecutor's reasons for challenging three other Hispanic jurors were pretextual, speculative, and not supported by the record.
The use of peremptory challenges to excuse prospective jurors solely on the basis of group bias violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) It also violates a defendant's right to equal protection under the Fourteenth Amendment. (Id. at pp. 283-284; Miller-El v. Dretke (2005) 545 U.S. 231, 238.)
If one party believes the other is using peremptory challenges to remove prospective jurors because of their race, that party must raise a timely objection and make a prima facie showing of discrimination. This is done "'by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.'" (People v. Clark (2011) 52 Cal.4th 856, 904 (Clark).)
Upon a prima facie showing, the burden shifts to the other party to provide a race-neutral explanation for the juror challenge. (Clark, supra, 52 Cal.4th at p. 904.) The explanation "'need not rise to the level justifying exercise of a challenge for cause.' [Citation.] Rather, adequate justification by the prosecutor may be no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as 'a mask for race prejudice' [citation]." (People v. Williams (1997) 16 Cal.4th 635, 664.)
If the challenging party offers a race-neutral explanation, the trial court must decide whether the opponent of the challenge has proved purposeful racial discrimination. (Clark, supra, 52 Cal.4th at p. 904.) Since the trial judge's findings turn on an evaluation of credibility, those findings are entitled to deference and will be upheld if the court's ...