(Super. Ct. Nos. SF105530A, SF105530B)
The opinion of the court was delivered by: Blease , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a joint trial before separate juries, defendants Richard Garcia Sanchez and Francisco Mendez were convicted of the first degree murder of Sergio Reyes (Pen. Code, § 187, subd. (a)*fn1 ; count 1), with two special circumstances, discharging a firearm from a motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)) and being an active participant in a criminal street gang and carrying out the murder to further the activities of the gang (§ 190.2, subd. (a)(22)). Defendants also were convicted of shooting a firearm from a motor vehicle (former § 12034, subd. (c); count 2)*fn2 ; and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). Mendez alone was convicted of shooting at an inhabited dwelling (§ 246; count 3). As to both defendants, the juries found true allegations a principal intentionally and personally discharged a firearm in the commission of counts 1 and 2 (former § 12022.53, subds. (d) and (e)(1)),*fn3 and that counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Sanchez's jury also found true allegations Sanchez intentionally and personally discharged a firearm in the commission of counts 1 and 2 (§ 12022.53, subd. (d)), and Mendez's jury found true and allegation count 3 was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The trial court sentenced Sanchez to life without the possibility of parole on count 1, plus an additional 25 years to life for personally discharging a firearm and causing death in the commission of the murder, which the court ordered "merged into the life without parole." The court imposed and stayed sentences of 25 years to life on the additional firearm enhancement and a term of life with a minimum parole eligibility of 15 years on the gang enhancement ancillary to count 1. As to count 2, the court imposed and stayed a sentence of 7 years (the upper term), plus two terms of 25 years to life for the firearm enhancements, and 10 years for the gang enhancement. As to count 4, the trial court imposed and stayed a sentence of 3 years (the upper term).
The trial court sentenced Mendez to life without the possibility of parole on count 1, plus 25 years to life for the firearm enhancement, which the court ordered "merged into the life without parole sentence for Count 1." The court imposed and stayed a sentence of life with a minimum parole eligibility of 15 years on the gang enhancement appended to count 1. As to count 2, the trial court imposed and stayed a sentence of 7 years (the upper term), plus 25 years to life for the firearm enhancement, and 10 years for the gang enhancement. As to count 3, the court imposed and stayed a sentence of 7 years (the upper term), plus an additional term of life with a minimum parole eligibility of 15 years for the gang enhancement. As to count 4, the court imposed and stayed a sentence of 3 years (the upper term). The court also imposed various fines and fees, including a $30 court facilities assessment for each offense. (Gov. Code, § 70373.) Defendants appeal. Sanchez contends the trial court prejudicially erred in (1) including "developmental disability" in the jury instruction on mental competence at his competency hearing, (2) admitting evidence Mendez was present and remained silent when Sanchez made statements implicating himself and Mendez in Reyes's murder, and (3) sentencing him on count 2. Mendez contends the trial court prejudicially erred in (1) allowing testimony to be read to the jury when neither he nor his attorney was present, (2) instructing the jury regarding flight, (3) sentencing him to life without the possibility of parole on count 1 when he was 15 years old at the time of Reyes's murder, and (4) imposing a court facilities assessment. Mendez also joins in Sanchez's claim that the trial court erred in sentencing defendants on count 2.
We shall modify the defendants' sentences on counts 1 and 2 and affirm the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Late on the afternoon of November 15, 2006, Reyes was shot and killed as he walked to the store to get some milk. Reyes's young niece, who was outside at the time, heard gunshots and ran inside and told family members what she had heard. Various family members rushed down the street and discovered Reyes lying in a ditch.
Neighbors telephoned 911 and reported hearing shots fired. A paramedic arrived minutes later. Reyes "took one breath and he was pulseless [sic]." He was transported to San Joaquin County Hospital and was pronounced dead at 6:15 p.m. He had been shot three times. Among other things, his left lung and heart were perforated, causing massive bleeding.
After hearing two shots, Flo Ming, who lived near the scene of the shooting, ran outside and observed a car "[back] up, kind of went in the ditch and . . . [pull] out and c[o]me flying down the street in front of [her] house." No shell casings were recovered from the scene, suggesting the weapon used was a revolver.
Law enforcement officers received a tip in August 2007, and on August 16, 2007, searched a residence where Mendez was reportedly staying. When officers arrived, Mendez ran out the back door. He was found hiding inside a "shed area" and taken into custody.
Mendez was interviewed by law enforcement later that same day. Evidence concerning his statements only was presented to his jury. On the day of the shooting, defendants were "cruising around" in their friend Rafael Cruz's car when they came across Reyes. Sanchez, who was driving, pulled over near where Reyes was walking and asked him if he "bang[ed]," and Reyes responded by asking Sanchez the same question. Sanchez pulled out a gun, fired eight shots at Reyes, and took off "to get away." Mendez initially claimed he did not know Sanchez had a gun, but later admitted that Sanchez "didn't have no [sic] gun," and that the gun that was used to shoot Reyes, a .22-caliber revolver, belonged to Mendez. Sanchez provided the bullets, which he obtained from his father. Mendez also stated that he had the gun in the glove box of Cruz's car, handed it to Sanchez when they saw Reyes, and told Sanchez, "you shoot him or I shoot him." When asked what happened to the gun after the shooting, Mendez explained that he later threw it out the window of a car during a high speed chase with police, and he assumed it was retrieved by the police.
On August 17, 2007, the day after Mendez was taken into custody, officers searched a residence where Sanchez was reportedly staying. While waiting outside, officers saw Sanchez leave the residence, and they took him into custody.
Sanchez was interviewed later that same day. Evidence concerning his statements only was presented to his jury. Sanchez initially told officers he was with Mendez when Mendez shot Reyes. He explained that he and Mendez had borrowed a gray four-door car from Cruz and were cruising around when they saw Reyes walking down the street. Mendez, who was driving, made a U-turn, pulled alongside Reyes, asked him, "What you bang," and then shot him eight times. Reyes fell to the ground and Mendez "took off." Mendez mistakenly believed Reyes was a Norteno. Sanchez was concerned he would be blamed for the shooting because he loaded the gun, and his finger prints were on the gun and the bullets. Sanchez denied having a gun or shooting at anyone that day.
After a detective advised Sanchez that witnesses had identified him as the driver and Mendez as the passenger, Sanchez admitted he was driving the car, and that he shot Reyes eight times.*fn4 He explained that Mendez said he wanted "to go shoot some busters"*fn5 and when Sanchez "rolled up on" Reyes, Mendez handed him the gun, and told him to shoot. Sanchez told Mendez he did not want to do it, and Mendez told him, "Do it, before I take the gun away and shoot you." Sanchez then shot Reyes eight times "[a]ll over his body" and "took off." Mendez told Sanchez he threw the gun away during a high speed chase with police. Mendez said he was riding in a brown Honda during the chase. Sanchez acknowledged he was a member of Vicky's Town (VST), a Sureno gang, and stated that other gang members threatened to kill him if he did not kill someone.
Later, Sanchez was interviewed a second time while Mendez was present. Mendez was instructed not to speak to Sanchez, and Mendez did as he was instructed. Sanchez again admitted driving Cruz's car and shooting Reyes. When he pulled alongside Reyes, Mendez handed him a .22-caliber revolver and told him to shoot. Sanchez had been a member of VST for seven years.
Cruz's father testified that in November 2006 Cruz drove a gray Ford Taurus. At approximately 11:30 a.m. on November 15, 2006, the day of the shooting, he observed two men arrive at his home, which he shared with Cruz, briefly go inside, and then leave in Cruz's car.
On November 21, 2006, six days after the shooting, law enforcement found a loaded .22-caliber revolver with a nine-round capacity next to the passenger side of a tan or silver Honda that had been involved in a chase with the California Highway Patrol. A ballistics expert testified that that two bullets recovered from Reyes's body most likely were fired from that gun.
On November 30, 2006, two weeks after the shooting, a police officer had a consensual encounter with defendants. Mendez was wearing blue shoes and a blue belt with the number 13 on the buckle and had two Sureno tattoos (the roman numeral XIII and the word "SUR") on his left hand. He said he had been a Sureno for about a year. Sanchez had VST and Sureno tattoos and said he was a Sureno and a member of VST, as was Mendez.
A gang expert testified that in 2006, VST consisted of 188 members and was a subset of the Sureno gang in Stockton since 1985. Both are criminal street gangs. They identify with the number 13, the color blue, and the word "Sur." Nortenos are their enemies and identify with the color red. Nortenos wear a Mongolian hair style (a shaved head with a ponytail in the back), and Surenos usually have shaved heads or close-cut hairstyles. Another gang expert opined that defendants were both active Sureno and VST gang members on the date Reyes was shot, that Reyes's murder was perpetrated for the benefit of, in association with, or at the direction of the Sureno/VST gang, and that Reyes was shot because he was believed to be a Norteno. The expert explained that Reyes's murder would benefit the gang by instilling fear in the community and giving status to the gang and the perpetrator within the gang, even if the victim was not a rival gang member.
Sanchez's defense was that he made a false confession and that Reyes was shot by some Nortenos. Sanchez called several witnesses to testify in his defense. Reyes's brother-in-law testified that shortly before the shooting, he saw a Ford Taurus slowly drive past his house, where Reyes was living at the time. There were four occupants, each of whom was wearing a red shirt and a red hat.
Reyes's niece, who was 15 years old at the time of the shooting, also saw a four-door Ford Taurus drive past her home while she and Reyes were outside earlier that day. The driver was a Hispanic man in his twenties with a Mongolian hair style and a red band in his hair. There were two people in the two front seats and three people in the backseat, and the driver appeared to be "mad-dogging" Reyes.
Arthur Gunter, who lived near where the shooting occurred, observed a gray Ford Taurus "flying past" immediately after the shots were fired. There were four Hispanic men in the car and they were all wearing red. He identified Cruz as the driver and directed officers to Cruz's home, where they observed what appeared to be the same gray Ford Taurus Gunter observed after the shooting.
Six months before Reyes was killed, Reyes's cousin witnessed a Norteno confront Reyes and ask Reyes "why he would spray paint [a] 13 in a Norteno area of town."
Mendez did not submit any evidence in his defense. During closing argument, his counsel did not dispute that Mendez was present when Sanchez shot Reyes or that it was his (Mendez's) gun that was used to shoot Reyes; rather, he suggested that Mendez did not know that Sanchez intended to shoot Reyes when he (Mendez) handed him the gun. Mendez's counsel argued that Mendez "should be a witness in this case, not a defendant."
The Trial Court Properly Instructed the Jury on "Developmental Disability" at ...