California Court of Appeals, Second District, First Division
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA085739, Arthur H. Jean, Jr., Judge.
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David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lisa Sedillo appeals her March 2013 conviction of one count of second degree murder (Pen. Code, § 187, subd. (a)),  five counts of attempted murder (§§ 664, 187, subd. (a)), and one count of shooting at an inhabited dwelling (§ 246). The convictions arise out of a gang-related shooting on December 1, 1992 that occurred outside a home in Long Beach. Francisco Moreno, the actual shooter, was convicted in 1995 of murder and attempted murder. Defendant was the driver of the getaway car, and although witnesses identified defendant from a photo array, no witness was able to identify defendant at a live lineup, and as a result, defendant was not charged in connection with the crime. In 2010, a wiretap of defendant’s phone in an unrelated matter recorded statements in which defendant admitted her involvement in the December 1, 1992 murder, and in May 2010, defendant was charged in connection with the shooting.
On appeal, defendant contends that (1) the attempted
murder and shooting at an inhabited dwelling counts are time barred; (2) the
wiretap evidence was improperly obtained and should have been excluded; (3) the
trial court abused its discretion in several key evidentiary rulings; (4) her
convictions for attempted murder are not supported by substantial evidence and
the trial court incorrectly instructed the jury on attempted murder; (5) the
trial court harbored bias against expert eyewitness testimony; and (6) the
trial court committed sentencing error. We affirm defendants conviction on the
murder count, reverse her convictions on the attempted murder counts, and
for a determination of whether the statute of limitations on the shooting at an inhabited dwelling count has expired.
In June 1995, Moreno was convicted of the December 1, 1992 murder of Jason Bandel, and the attempted murders of David Huizar, Juan Carpio, Nicole Valle, Mandi Montez, and Maria Lerma.
An information filed October 11, 2011 charged defendant with the December 1, 1992 murder of Jason Bandel (§ 187, subd. (a); count 1), the attempted murders of David Huizar, Juan Carpio, Nicole Valle, Mandi Montez, and Maria Lerma (§§ 664, 187, subd. (a); counts 2-6), and shooting at an inhabited dwelling (§ 246; count 7). The information further alleged that the attempted murders were willful, deliberate and premeditated.
A. Prosecution Case
1. Eyewitness Testimony of the Shooting
On December 1, 1992, at approximately 3:45 p.m. to 4:00 p.m., a wake was held for Rafael Presidio, known as “Keeper, ” who was a member of the KOS tagging crew in Long Beach. Mourners gathered at the home of brothers David Huizar, Ricardo Huizar (Ricky), and Juan Carpio at the corner of 20th Street and Myrtle Avenue. Several people were sitting on the front steps of the house. Maria Huizar, the mother of the brothers, was inside the house, as were several members of Presidio’s gang. The house is located in Barrio Pobre gang territory.
Maria Alarcon, who was walking down 20th Street, witnessed the shooting. She saw a man, on foot, shoot at the group of people in front of the Huizar home, which was about a half a block away. Alarcon could not tell whether the pistol the man was holding was wrapped in a towel or a sheet. Alarcon hid in some bushes and saw the man run toward a waiting white car parked on Myrtle driven by a woman. Alcaron observed that the woman was thin with shoulder length curly hair. The car drove away quickly, went down an alley, and turned on 20th Street. Alarcon was worried about her children, and she ran down the same alley towards her house. After she made sure her children were safe at home, she went back through the alley to the Huizar house. When the white car went by again about five minutes later Alarcon could see it was the same woman. She could see the woman’s face.
Mandi Montez,  who was one of the guests at the wake, was shot in the leg. The shooter was on foot and shouted, “East Side Longo.” Case testified at the trial of Moreno, who was known as “Whisper, ” and identified him as the shooter.
Juan Carpio was sitting on the porch when he was shot. He heard someone yell “East Side Longo.” Out of the corner of his eye he saw someone walking up at a quick pace. Carpio turned for a “split second” and saw a figure with a rifle or a long gun. He turned and ran around the corner of the house. When he came back to the front of the house he saw Montez, Valle, his brothers and Bandel lying on the ground. Carpio heard from 15 to 17 shots. Carpio saw that Huizar had been shot in the buttocks. Bandel was lying on his back and gasping for air. Bandel tried to catch his breath and then he stopped breathing. Carpio had made it inside the house, but he had also been shot.
Maria Huizar, who was inside the house, was looking out the front screen door. She could tell the shots were coming from 20th Street (20th). She looked toward where she heard the shots and saw someone carrying a white bundle. Before the shooting she had seen a white car go by on Myrtle Avenue (Myrtle). The driver had light-colored shoulder length hair.
Esperanza Ramirez was living in the area of 20th and Myrtle. She heard gunshots. Ramirez ordered her daughters to get on the floor. She looked out the window and saw a car go down the alley. The driver was a woman and there was a male passenger. The woman’s hair was not black.
2. Police Investigation
Police recovered ten .223-caliber expended bullet casings at the scene of the shooting. The murder weapon was never found.
Bandel had four gunshot wounds. He had been shot in the abdomen, right arm, and chest.
Officer Timothy Cable of the Long Beach Police Department (LBPD) showed a six-pack to Alarcon and Ramirez; both women identified No. 3 (defendant) as the driver of the white car. Unlike the other photographs which were mug shots with a gray background, defendant’s photo was a DMV photo with a blue background. At a live lineup, neither woman selected defendant as the driver of the white car.
About six to seven weeks after the shooting police arrested defendant and interviewed her. Defendant denied involvement in the shooting and denied knowing Moreno. At the time of the shooting defendant claimed to be at the home of her boyfriend.
Detective Hector Gutierrez of the LBPD went to defendant’s home on May 20, 2010 to serve a search warrant. Police recovered four newspaper clippings from the house, one of which was about the Bandel shooting.
3. Wiretap Evidence
In a March 6, 2010 recording between defendant and an unidentified male, defendant boasts that “[she] used to run with the Malditos... all day. The Malditos those were my boys... that was my clique.” Defendant talks about her “big homie” Whisper and how he taught her everything she knew. “[H]e’s doing fucking life and I’m out here walking free. I owe that... like I told him I owe you my life homie. You took the fuckin blame for everything and I’m walking free.... [¶]... [¶] And ever since then it’s been eighteen years.”
On March 16, 2010 at 9:48 a.m., defendant told Jose Brito that Whisper had gotten caught with the gun and had taken all of the blame. Witnesses had picked her in the photo array, but did not identify her in the live lineup. Her boyfriend “Green Eyes” had given her a good alibi. In an earlier conversation defendant said, “So, for 18 years, since [Whisper has] been inside... I've been with him every fucking step of the way. Whatever he needs from me, I always come through.”
On March 31, 2010, defendant spoke with Ruhani Bustamante, who asked her whether she remembered “Keeper” or “Creeper” from KOS who “got killed.” Defendant responded, “Yeah, yeah. That was me and him.” Defendant talked about how she used to be filled with anger and hate, when she saw one of her enemies at the mall, she would spit at them. If they had a baby with them, she would throw the baby out of the car seat.
4. Other Evidence
The court took judicial notice that Moreno was convicted in June 1995 of the murder of Bandel, and the attempted murder of Huizar, Carpio, Valle, Montez, and Lerma.
B. Defense Case
On May 8, 2010, Detective Hugo Cortes with the LBPD interviewed Alarcon. In the interview, Alarcon told them she was inside the house when
she heard the shooting. Alarcon also told him that she first saw the white car was when the man got out of the car and began shooting. The car turned down the alley with a screeching of tires and passed through the alley again. Alarcon saw a woman driving the car and there were two men in it. The first time Alarcon saw the car the shooter was driving and the female was in the passenger seat.
Martin Flores, a gang expert, testified that gangs are composed of youths aged 13 to 24 and are territorial and race-based. A gang member’s reputation will increase if he or she commits a violent crime for the gang, and a gang member’s status in the gang increases by association with a gang’s more senior members. A gang member who has avoided prosecution for a crime achieves higher status in the gang through bragging about the crime and can maintain a connection with other gang members who have been convicted. If a gang member is suspected of lying, his or her status will drop within the gang.
Sarah Savell owned a triplex property near 20th and Myrtle in Long Beach. At 3:45 p.m. on December 1, 1992, she heard gunfire. She saw a Hispanic man with a rifle wrapped in a towel. In the alley was a gray Honda Civic hatchback. The man got into the Honda’s passenger seat and the car sped away.
Mr. Foch, Savell’s former husband, was standing in the doorway of the apartment on the first floor when he heard firecrackers. He saw a young man walking in the middle of the street with a rifle partially wrapped in a towel. The man got into a small gray car that was in the alleyway. The car drove away. Foch saw the driver from the rear and could tell he was male because of his build and his hair cut, which was not long.
Maria Gloria Reyes was the mother of defendant’s boyfriend at the time and the grandmother of defendant’s child. She did not recall giving defendant an alibi, and did not know defendant had been arrested.
Dr. Robert Shomer, an expert in memory, perception and eyewitness testimony, testified that the accuracy of eyewitness identification decays after 24 hours, and is reliable about 50 percent of the time. A police officer conducting a photo lineup may influence the identification because he knows which photo is the suspect’s photo. A photo with a different colored background is more likely to be chosen. Hypothetically, if someone identifies a
person from a photo array but then fails to identify them at a lineup, the witness probably did not get a good enough look for an accurate identification.
The jury convicted defendant of all counts, set the degree of murder at second degree, and found not true the premeditation allegations on the attempted murder counts. The trial court sentenced defendant to an aggregate term of 35 years to life, consisting of 15 years to life for the murder count, the upper term of nine years on count 2, consecutive sentences of two years four months for the four remaining attempted murder counts, and a consecutive term of one year eight months on the shooting at an inhabited dwelling count.
I. Statute of Limitations
Defendant argues her convictions for attempted murder are time-barred because the complaint filed in 2010 charged premeditated attempted murder, an offense carrying no statute of limitations under section 799; thus, while the premeditation allegation permitted the otherwise time-barred attempted murder charges to go to trial, once the jury found the premeditation allegations untrue, the six-year statute of limitations of section 800 applicable to offenses punishable by eight or more years barred continued prosecution of those counts. Defendant also argues the section 246 charge is time barred from the face of the information because the prosecution did not plead any facts to toll the statute.
Respondent argues that because both premeditated attempted murder and attempted murder are the same offense, a single statute of limitations applies, even though attempted murder is not punishable by life imprisonment because, as expressly set out in section 805, the statute of limitations for a particular offense is determined by “the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.”
A. Attempted Murder Counts
“An accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations. . . ." (People v. Crosby (1962) 58 Cal.2d 713, 724-725 [25 Cal.Rptr. 847, 375 P.2d 839].) A defendant may assert the statute of limitations at any time as it is jurisdictional, and the issue thus may be raised for the first time on appeal. (People v. Williams (1999) 21 Cal.4th 335, 338-341 [87 Cal.Rptr.2d 412, 981 P.2d 42].)
Statutes of limitations in criminal cases are generally based upon the offense committed and are tied to the seriousness of the offense. (Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 707 [115 Cal.Rptr.3d 519].) “The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations [is] designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. [Citation.] (People v. Turner, supra, 134 Cal.App.4th at p. 1594.) This benchmark also serves the procedural need to provide predictability and promote uniformity of treatment. (Ibid.)
The basic felony statute of limitations is three years. (§ 801.) However, if a felony is punishable for a maximum term of eight years or more but less than life in prison, the statute of limitations is six years. (§ 800.) For a crime punishable by death or life imprisonment, there is no limitation on the commencement of prosecution. (§ 799.) Section 805, subdivision (a) further specifies that for the purpose of determining the applicable limitation period, “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” In addition, section 805, subdivision (b) provides, “The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense.”
Section 664, subdivision (a) provides with respect to attempted murder, in relevant part, “[i]f the crime attempted is... willful, deliberate,
and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.” Thus, an action for attempted premeditated murder maybe commenced at any time as it is governed by section 799. (Anthony v. Superior Court, supra, 188 Cal.App.4th at p. 705.) However, under section 800, Anthony concluded that ...