FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of Tulare County Nos.
VCF321552 & VCF283307. Kathryn T. Montejano, Judge.
Lynne Klein, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Nora S. Weyl, and William K. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
POOCHIGIAN, Acting P.J.
Luis Arrellanes Aviles led officers on a foot pursuit through
houses, garages, and backyards in a residential neighborhood.
An officer found defendant hiding inside a bedroom closet of
a residence and ordered him to surrender; the officer did not
realize that defendant was in possession of a firearm.
Instead of complying with the officer's orders to
surrender, defendant fired multiple gunshots and wounded two
officers. One officer was shot four times, and the second
officer was shot once. The other officers at the scene
returned fire, and defendant finally surrendered after being
was charged and convicted of counts 1 and 2, the attempted
premeditated murders of the two police officers (Pen. Code,
§§ 664/187, subd. (a)) with firearm enhancements
(§ 12022.53, subd. (d)); and count 3, possession of a
firearm by a felon (§ 29800, subd. (a)(1)). Defendant
was sentenced to an aggregate term of 80 years to life in
state prison, plus a consecutive term of two years for his
plea in a separate case for assault with a deadly weapon - a
cutting instrument - by means of force likely to produce
great bodily injury. (§ 245, subd. (a)(1)).
affirm defendant's convictions in counts 1, 2, and 3 and
the jury's findings on the firearm enhancements.
published portion of this opinion, we address defendant's
reliance on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas) to argue that the
trial court violated his constitutional rights to due process
and equal protection by ordering him to pay certain fines,
fees, and assessments without finding he had the ability to
pay those amounts. We find Dueñas was wrongly
decided, and that a constitutional challenge to the
imposition of fines, fees, and assessments should be based on
the Excessive Fines Clause of the Eighth Amendment instead of
the due process rationale utilized in Dueñas.
remand the matter for the trial court to address specific
sentencing issues as set forth in the unpublished portion of
this opinion, and otherwise affirm defendant's
convictions, the firearm enhancements, and the fines, fees,
and assessments imposed.
16, 2013, Visalia Police Department Officers Collins and
Alfano were on patrol. They were members of the gang
suppression unit and drove an unmarked police cruiser that
was a black Dodge with a light bar inside the front
Alfano testified that even though the vehicle was not marked,
he knew that gang members in the area recognized the car and
knew the police were inside. Gang members referred to the
unit as the “black attack.” The officers were
wearing black uniforms and tactical vests that displayed
1:00 p.m., the officers were patrolling the “Holiday
Homes” area of Visalia. In their experience, the area
recently had a large amount of gang activity and gang-related
drug sales and shootings. The officers also had numerous
contacts with Norteño gang members in the area.
officers turned onto North Cain Street and saw a black
Hyundai Sonata traveling in front of them. The vehicle turned
very quickly into a residential driveway in in the middle of
the block. As the vehicle made the turn, it was going so fast
that the front end of the car hit the driveway's pavement
and the vehicle bounced.
Collins testified both doors of the car flew open and two
people got out. The two occupants were later identified as
defendant and Phillip Marquez. Defendant got out of the
driver's side and Marquez got out of the passenger side.
Alfano testified defendant “looked hard” in the
officers' direction, “held the look for a moment,
” and then began “to fast walk towards the front
of the residence.” Alfano testified defendant
“wasn't … just strolling up to the front
door, he was walking at a fast pace toward the gate on the
north side of the residence.” Marquez also walked
towards the front of the residence.
officers decided to stop and check out the vehicle; they
pulled their car to the curb in front of the residence.
Jumps the Fence
Collins testified that as soon as he got out of the patrol
car, the driver of the vehicle, identified as defendant,
“looked at us and turned around, ran the other way and
hopped a fence.” Collins testified that he believed the
driver “definitely saw us, and that's why he pulled
into the driveway.”
defendant hopped the residence's fence, Officer Collins
scaled the same fence and intended to follow him. Collins
lost sight of defendant and returned to the patrol car to
call for backup assistance.
defendant jumped the fence, Marquez was still standing in
front of the residence where defendant had stopped the car.
Officer Alfano immediately ordered Marquez to stop. Marquez
complied with the order. Alfano detained Marquez, conducted a
patdown search, and placed him in the back of his patrol car.
was no evidence that Marquez was in possession of any
Search for Defendant
officers responded and set up a perimeter in the residential
area where defendant had jumped the fence, in the area
between North Cain and North Stover Streets. The officers
contacted residents and obtained their permission to search
their homes and backyards.
resident on North Cain heard noise like someone had jumped
his fence. The resident found a pair of white shoes in the
backyard that did not belong to him and later pointed them
out to the police.
resident on North Stover Street saw someone with a gun run in
front of her house. The man was a police officer, but she did
not realize it at the time. She became frightened and hid in
a closet with her children. After a short time, she thought
she heard someone try to open a door in the house. She stayed
in the closet with the children. About 10 minutes later, she
decided to leave the closet since it had been quiet. She
walked through the house and everything seemed normal. She
decided to lock the door that led from her house into the
garage. When she opened the door to the garage, she found a
man was in the garage, and he was holding a gun. He was
wearing a beige T-shirt and white or beige shorts with dark
checkered squares. She did not see his face. He was holding
the doorknob and trying to keep the garage door closed. She
screamed and closed and locked the door. She ran to the front
of her house, saw the police officers in the street, and
yelled that someone was in her garage with a gun.
Ferreira, who was searching the area, stood up on a fence at
the house on the corner of Douglas Avenue and North Stover
Street. He saw a man in a white T-shirt and black shorts
jumping fences but could not follow him.
Ferreira and Sergeant Epp searched a residence on North
Stover after receiving permission from the occupants. They
went through every room except one bedroom where the door was
locked. They did not find anything, checked the backyard, and
then went to another house.
Collins Finds Defendant in the Closet
Officer Ferreira searched another property, he returned to
the backyard of the house he had just searched with Sergeant
Epp on North Stover. He looked through the windows of the
house and discovered the bedroom door that had been locked
when he initially searched the house was now open. Ferreira
told Officer Collins that they should go back into the house
and search that room.
Ferreira went into the bedroom that had been locked and did
not find anything. Officer Collins and Ferreira checked
another bedroom, where the drapes were closed, and it was
dark. Ferreira did not find anyone and walked into the
Collins remained in that bedroom. He was holding his service
weapon in his hand. He opened the closet door and it was full
of clothes and other items. He moved some of the clothes
around and realized he was looking at a person's
Shoots Officers Collins and Ferreira
Collins testified that someone was hiding in the closet. He
stepped back, identified himself as a police officer, and
ordered whoever was in the closet to show his hands. No one
responded. Collins placed his service weapon in his holster
because he planned to use his hands to arrest the person in
Officer Collins reached into the closet, he heard a loud bang
and felt a sharp pain. The man in the closet, later
identified as defendant, shot Collins under his right
Ferreira heard Officer Collins order someone to show his
hands. He ran back to the bedroom and saw the muzzle flash
when Collins was shot.
Ferreira testified that he next saw the muzzle of the gun
“[p]rotruding through the clothes toward the bottom of
the closet” and saw another muzzle flash. Defendant was
still in the closet and shot Ferreira in the left shoulder.
Officer Collins testified he saw the muzzle flash when
Ferreira was shot.
he was shot, Officer Ferreira stumbled out of the bedroom
because he thought the gunman was tracking him. Ferreira went
into the adjacent bedroom, closed the door, and waited for
the gunman to follow him.
Collins backed away from the closet, but defendant fired
another shot, and Collins was hit in the upper left arm.
Collins tried to reach for his service weapon, but his arm
was injured. Defendant fired another shot from the closet
that hit Collins in the center of his chest. Collins was
wearing a bulletproof vest, and it stopped the bullet from
entering his body.
Collins testified he could not see the gunman or his weapon
in the closet, and just saw “a dark mass coming out at
me.” Collins realized that he had to reach for his gun
or the gunman was going to kill him. He managed to pull his
service weapon and returned fire into the closet.
Officer Collins raised his arm to fire, defendant fired
another shot and hit Collins a fourth time; the bullet
entered under Collins's armpit and went into his back.
Collins kept firing into the closet. He heard screaming and
believed he hit the gunman. Collins backed out of the bedroom
as he returned fire.
other officers rushed into the house when they heard the
gunshots. Sergeant Brown and other officers took position in
the hallway. Brown testified the suspect, later identified as
defendant, emerged from the closet and appeared to be
scooting out of the bedroom door. The suspect tried to get
into the hallway. Brown fired 13 shots until his weapon was
empty. The suspect was hit, spun around, and fell.
Ferreira came back into the bedroom and found defendant lying
on his back. Defendant was bleeding and moaning in pain. A
revolver was on the floor. Ferreira placed defendant in
handcuffs. Ferreira testified defendant was wearing the same
clothing as the man who had been jumping fences.
officers moved defendant from the house to the sidewalk. The
paramedics arrived and treated defendant for gunshot wounds,
and he was taken to the hospital.
had been shot multiple times and was wounded in his left eye,
left knee, just below the pelvis, right thigh, left forearm,
and right forearm.
Collins was shot four times. He was in the hospital for two
or three days, and unable to return to work for eight months.
Ferreira was shot once and did not return to work for two
Recovered in the Area
weapon was found on the bedroom floor. It was a.357-caliber
Magnum Ruger Blackhawk revolver. It contained six expended
police searched the garage at the house on North Stover,
where the resident had seen the man with a gun. They found a
glass smoking pipe and other items that appeared to have been
dumped in the garage and did not belong to the resident.
officers searched defendant's clothing that the
paramedics cut off his body and left on the street when they
treated him at the scene of the shooting. Defendant had been
wearing black and white cargo shorts. The pockets contained a
bindle with a white crystalline substance consistent with
methamphetamine, keys, a wallet containing $191, a California
identification card, and a debit card in the name of Andrea
Perez (later identified as defendant's wife).
damaged cell phone was in the front left pocket of
defendant's shorts. The cell phone had apparently been in
his pocket and was hit and damaged by a projectile from a
bullet. Defendant's clothing included white boxer shorts
with shamrocks, a red bandana, a white sock, and a red belt
with a buckle. The buckle had the letter “A” cut
into the buckle.
officer took photographs of defendant's tattoos at the
hospital. There was “XIV” under the ring finger
of his left hand; the letter “S” on his face,
above his right eyebrow; and “familia” on his
right cheek. The letter “K” was on the left side
of his face, above the left eyebrow. There were four dots to
the left side of his left eye.
had the letter “S” tattooed on his neck; a Raider
shield was under the “S” and appeared to black
out and cover another tattoo. “Familia” was on
his face; “Luis” was below his neck with the
letter “S” crossed out. “RIP
Anastasia” was on the left side of his neck;
“Noah” was on the left side of his neck with red
shading; and “XIV” was on the back of his head.
Collins testified defendant had a closely-shaved head that
showed tattoos; they were hidden by his hair length at the
time of trial.
Clothing and Tattoos
Ford took photographs of Marquez on the day of the shooting.
Marquez was wearing red Nike Air Jordan shoes. A red bandana
with solid creases on the top and bottom was neatly folded in
his left pocket. He was wearing red boxer shorts. His long
hair was in a “Mongolian” tail that was common
among Norteño gang members.
had “very prominent” tattoos of the letter
“N” on the right side of his face and the letter
“S” on the left side of his face; the letters
“SK” underneath his chin; and four dots on the
left side of his face. Ford testified the letters
“SK” were significant for Norteños.
had tattoos of the letters “G” and
“ST” on his right arm. Detective Ford testified
the letters represented Giddings Street, an area claimed by
Norteños in Visalia. On the web portion of his left
hand, there were four dots, “666” and a star. The
letters “CA” were on the inside of his left arm
and meant California, and there were four dots above it. The
words “can't” and “stop” were on
the left and right front sides of his chest.
“Visalia” was across his stomach. His name,
“Marquez, ” was tattooed in red. The letters
“T” and “C” were, respectively, on
the inner portions of his left and right arms, so they could
be seen from behind when he was walking away.
Perez Aviles testified she had lived with defendant and was
later married to him. By 2013, they no longer lived together,
but defendant still came around because she was expecting his
Aviles testified defendant had been a Norteño
“[a]t one point in his life, ” and he belonged to
the “East Side Delano” set. Ms. Aviles testified
their last name was spelled with an “S”, but
defendant always spelled it “with a Z just throughout
his life.” Ms. Aviles knew Norteños did not like
to use the letter “S, ” and she assumed it was
because it stood for “Sureño.” Ms. Aviles
testified defendant hung around with people who claimed to be
Norteño gang members, and she could tell they were
Norteños based on the way they talked and used terms
such as “scrap.”
Aviles testified defendant was supposed to turn himself in
two years prior to the shooting in this case. Defendant said
he that he had been “on the run” for two years,
and “he just always told me he wasn't gonna go
back” to jail. Defendant never said that he would use
violence to prevent that from happening.
told her that he was treated for depression and received
medication when he was in the Youth Authority. He later went
for mental health treatment but never followed up.
Aviles testified that about two days prior to the shooting,
she argued with defendant because he did not have a job, and
he was jealous of the father of her older child. Defendant
said that he did not want to live and was going to commit
suicide if they separated or she left him. Ms. Aviles moved
Aviles admitted that she visited defendant in jail in June
2014. By the time of trial, she had filed for divorce, moved
for defendant not to have any visitation with their child,
and intended to sever all ties to him.
PROSECUTION'S GANG EVIDENCE[*]
Alfano testified that when he initially saw the two men run
out of the car that stopped in the residential driveway,
“they had a look of being gang members of having gang
affiliation” by their tattoos and “what they were
wearing, ” which was the “baggy dress style,
loose clothing, a lot of times to conceal weapons and
Alfano felt the incident was gang-related when it began
because of “the totality of the circumstances. It was
the fact that one of them ran from us and hopped a fence. The
other one [Marquez] had gang-related tattoos upon me
contacting that individual, and the baggy clothing and
… just it felt gang related to me…. It felt
gang related from my experience in my five years in the gang
unit and even my experiences prior to that working
patrol.” Alfano conceded that if he was testifying as a
gang expert in the case, he would need more evidence than
“just baggy clothing or just tattoos” to reach an
opinion of whether or not defendant and Marquez were gang
Collins testified he had two to three prior contacts with
defendant involving an arrest for domestic violence and a
field interview. Collins never had any problems with
defendant, and defendant had never been aggressive toward law
before the prosecution's gang expert testified, the court
advised the jury that the parties had entered into two
first stipulation was that the “Norteños are a
criminal street gang within the definition of …
second stipulation was that the shorts that were cut off from
defendant and left on the street by the paramedics had
“an elastic type band and no belt
Prosecution's Gang Expert
Police Officer Logan, a member of the Gang Suppression Unit,
testified as the prosecution's expert on criminal street
Logan testified the police department used 10 validation
points to determine if someone was a gang member. The
validation points were if the person admitted gang
membership, admitted membership while in a custodial
facility, involved in a gang-related crime, named by a
reliable source, writes or found in possession of gang
material, identified in or corresponds with gang members;
wore gang clothing or attire, and had gang associated
common tattoos for Norteños were “one dot on the
right arm, elbow, wrist, hand and then four dots on the other
side, X4, the number 14, the letter N, the word Norte.”
The number 14 represented the 14th letter of the alphabet,
which was the letter N that represented Nuestra Familia, the
northern prison gang. “X4” or “XIV”
stood for the roman numeral version of “14.”
Logan testified the color red and red clothing and apparel
were also associated with Norteños, including Nebraska
hats with the letter “N, ” and Cincinnati Reds
hats with the letter “C.” The letter
“C” stood for “catorce” which meant
“14” in Spanish. A Norteño gang member
would carry a red bandana to actively identify himself as a
Norteño “so that other Norteños, if
they're in a different city, different neighborhood, then
they can be readily identified by their friends in that city
as being Norteño gang members or to identify
themselves to rivals as being Norteño gang
the prior 10 to 15 years, active Norteño members have
not obtained visible gang tattoos or displayed red bandanas
to be more discreet when committing predetermined crimes and
prevent the police from documenting them as active gang
members. They may still keep a red bandana inside a pocket.
Sureño gang was the “number one enemy” of
the Norteños. Law enforcement officers are also
considered enemies of the Norteños.
Logan testified the officers in this case were shot in the
“Holiday Homes” area of northeast Visalia.
“It is predominately frequented by Norteño gang
members. More specifically, it's considered North Side
Visa Boys territory. This is a section of the town that is
dominantly controlled and where a lot of North Side Visa Boys
grew up.” There were two residences in the area
occupied by people who were members of Sureño gangs
known as BTL and Vicky's Town. As a result, other
residents of the area who were not in the gangs had been
caught in the crossfire of shootings between rival gang
Logan testified that no matter what gang a person was in, a
member who shoots at a police officer will raise his own
status and the status of his gang.
shows that you're willing to use violence to uphold not
only your own reputation, but the reputation of your …
gang. [¶] Shooting at a cop is the most heinous crime
that a gang member can commit, and that's gonna
[sic] boost the reputation of that gang as being
violence. [¶] Violence - respect in the gang is obtained
by violence. Dominance is obtained by violence. So the more
violent they are, the more that you believe and rivals
perceive them to be, the more respect they're gonna
gang member who shoots an officer will raise his own status
“tremendously” within the gang and “allows
them to hold positions of power by elevating their status.
They have shown they are willing to commit the most heinous
of acts for their gang. This, in turn, later allows them to
hold a position of power, give directives.”
Logan testified about members of different gangs being
And what is the relevance of gang members hanging out with
other gang members?
Back in the day, there used to be a lot of red on red
violence, gang members from one neighborhood fighting with
gang members from a different neighborhood. [¶] Now,
it's more organized so now you have association within
the neighborhoods where they'll go and commit crimes
Logan testified that an active gang member would not
associate with someone if he knew or believed the other
person was a dropout. Active members refer to dropouts as
“trash” and will not commit crimes with them. A
Norteño dropout would not want to advertise or openly
display their gang tattoos or red colors because active
Norteños would take action on that person.
Gang Expert's Testimony About Defendant
Logan testified about several contacts between defendant and
the Visalia Police Department. On March 10, 2010, officers
responded to the Blitz bar on a disturbance call about a
person brandishing a weapon. Defendant was apprehended after
he ran from a car. Defendant was wearing red boxers. Graciano
Trevino, an active Norteño gang member, was in the
car, and a loaded.380-caliber handgun was in the vehicle.
March 18, 2010, officers conducted a field interview with
defendant, who was carrying a red cell phone. Defendant was
not arrested that day. Officer Logan testified that defendant
“admitted to being an East Side Delano Norteño
gang member.” Defendant said that if he was going to be
incarcerated, “he would still be housed with active
Logan testified that on April 12, 2013, an officer conducted
a field interview with defendant. Defendant admitted gang
membership, that he associated with gang members, and he had
Logan testified that on August 2, 2010, Officer Alfano
contacted and arrested defendant for possession of
methamphetamine. Defendant admitted to being “an active
East Side Delano Norteño gang member, ” and he
had the letters “SK” tattooed on his neck.
Defendant said the tattoo “stood for scrap killer,
” and scrap was a derogatory term for a Sureño
Logan testified that in his opinion, defendant was “an
active Norteño gang member” at the time of the
shootings in this case, and that he “was functioning as
an active Norteño gang member in Visalia.”
Gang Expert's Testimony About Marquez
Logan also testified about Philip Marquez, who was the
passenger in defendant's car and was arrested immediately
after he exited the vehicle. Logan testified Marquez had
several gang tattoos that showed he identified himself as a
Logan testified that on August 26, 2009, a deputy from the
Tulare County Sheriff's Department arrested Phillip
Marquez for battery with a gang enhancement. Marquez admitted
to “being an active North Side Visa, NSV gang member
and that he also associated with gang members during the time
of the incident.”
January 3, 2010, Marquez was interviewed by the sheriff's
department as a witness to a petty theft investigation.
Marquez was with Ryan Lopez and Geronimo Hernandez. Lopez was
known as “Grinch” and an active MGB, “which
is Mexican Gang Bangers, Norteño gang member, ”
and Hernandez was also an active Norteño member.
March 17, 2010, Officer Pena contacted Marquez during a
traffic stop. Marquez said he “backs up north and that
he has also fought in order to back up the north in the past,
” and that he would be housed with active Northerners
if he was taken to juvenile hall.
26, 2010, Marquez was contacted during a curfew violation. He
was with five men: Miguel Calderon, Joseph Marquez, Jesus
Hernandez, Oscar Martinez, and Rudy Dominguez, “all of
which are active Northerners” in Visalia. Hernandez was
an active North Side Visa Youngster and Martinez was in the
Northside Visa Boys.
September 12, 2010, Marquez was contacted by an officer
during a traffic stop. Marquez was wearing gang clothing and
said he “affiliates” with Norteños.
court advised the jury about two additional stipulations. The
parties stipulated to the admission of a Department of
Justice laboratory report with an analysis of all of the
firearms that were fired, and shell casings and projectiles
recovered from the shooting scene.
parties also stipulated that defendant was convicted on
December 1, 2010, in case number VCF243623 for a felony
violation of Health and Safety Code section 11377,
Sanchez, the lead investigator, was called as a defense
witness and testified there was no evidence defendant made
any gang signs or uttered any gang slurs during the course of
testified that, at the time of trial, defendant was in
custody. There were three possible classifications for
housing: Norteños, Sureños, and “keep
separates.” Defendant was housed with prisoners who are
kept separate from others. The group consisted of sex
offenders, gang dropouts, those at risk from being with other
people, and a new and separate gang made up of dropout gang
Sanchez testified it was common after gang members were
arrested for committing crimes, that they learn about the
gang enhancements and try to disassociate themselves with
their gangs afterwards.
cross-examination, the prosecutor asked Detective Sanchez for
his opinion about various gang issues; the court found
Sanchez qualified to testify as an expert. Sanchez testified
that based on his experience, it was not common for gang
members who kill or attempt to kill police officers to yell
out gang slurs before committing the crimes. Sanchez
testified that gang members usually yell out gang slurs when
committing crimes against rival gang members.
testified on his own behalf. Defendant admitted he
had a history of selling drugs and had been incarcerated
had previously received treatment for depression about five
or six years earlier, when he was in the Youth Authority.
After he was released from the Youth Authority, he was
supposed to receive treatment at the mental health clinic but
failed to keep up with the schedule.
had three children who had been removed from his custody and
adopted, and that was part of the reason for his depression.
testified that he had attempted suicide four times. In 2010,
he cut himself, so he could bleed to death. On a second
occasion, he took some codeine pills. On a third occasion, he
took about 100 codeine pills and was hospitalized.
testified that his fourth suicide attempt occurred in this
case because he was trying to commit “suicide by
cop.” About two days before this incident, his wife
left him. She was pregnant with his child and said she was
taking his child away from him. Defendant told her that he
would find a way to get himself killed.
testified that he was driving the car when he saw the
officers “roll up” on him. When he saw the
officers, he decided that he wanted to have them kill him. He
was “tweaked out.” He pulled into a driveway and
got out of the car. Defendant did not have a gun with him.
Defendant remembered that he ran from house to house. He was
hiding, “trying to figure out how to do it, ” and
looking for a weapon.
knew there was an outstanding warrant for his arrest, with a
remand date to report to jail to serve time for a prior
testified that he could not remember where he found the gun.
“[Y]ou heard what the detective said. He said
that's a place of crime, and I searched and I found
one.” Defendant remembered being in the bedroom closet.
He was “blowing up on my wife on the phone, kept on
calling her, texting her, trying to see … if I can
stop myself before anything.” Defendant pointed the gun
at himself because he was “thinking about trying to do
it myself, ” but he did not have the nerve to pull the
could not see clearly from the closet, but heard someone walk
in. He heard the radio and knew the police officers were
there. Defendant heard them tell him to come out and saw
someone move the clothes. He thought the officers would kill
him since “the gun was in my face.” Defendant
went blank and did not remember pulling the trigger, aiming
at the police, or shooting the officers. Defendant did not
remember getting shot.
remembered backing out of the closet and bedroom, and he
still held the gun. “I pushed my way out [of] the room
and they shot me again” when he was outside the closet.
Defendant never intended to hurt an officer and did not
realize they had been shot.
remembered that he was dragged out of the room and became
unconscious. When he woke up, he was upset because he was
was shot eight times and received medical treatment for his
bullet wounds in the arms, legs, knee cap, and pelvis. He
also received treatment and medication for depression and
testified that after he was arrested for the shootings, he
was placed in protective custody at the jail because he had
already decided to stop gangbanging in 2011, prior to this
testified that when he was in custody, he wrote a Christian
believer testimony about his life and experience. He
described that he had contemplated suicide, and that as the
bullets were piercing his body, he was in a sort of ecstasy
because he had finally succeeded at something. He wrote the
testimony to help others and show that he made a mistake. He
sent it to a Christian magazine, which published the story in
time of trial, defendant was in the “hole” for
“allegedly” cutting his cellmate. He denied that
he cut his cellmate with a homemade weapon. Defendant
admitted that during a telephone call from the jail, he told
a woman that he was in the hole for stabbing his cellmate.
Defendant said he was “faded” when it happened,
which meant he was drinking. Defendant testified that when he
made these statements to the woman, he was not admitting that
he stabbed his cellmate but just explaining why he was in the
Yosef Geshuri, an attorney and a psychologist, testified as a
defense expert. On May 23, 2014, Dr. Geshuri interviewed
defendant, administered standardized tests, and assessed
defendant for psychological and mental deficiency issues.
Defendant told Dr. Geshuri that he had been “thrown
into the streets” very early in life, he started a
pattern of criminal behavior from a young age, and he had
been dealing drugs for some years.
Geshuri testified there were different grades of
“mental retardation, ” from moderate to mild;
then severe; and profound as the highest level. A normal
average IQ would be 100. Defendant's test results showed
his IQ was around 60 or 61, which is rated to be “in
the middle mental retardation range.” A cognitive
ability test showed defendant's overall age equivalent
was about nine and a half years old. His vocabulary was at
the level of an eight-year-old. The tests showed defendant
had long and short term memory problems. His overall memory
quotient was 59, where the average would be 100, which was
the “[m]ild or even moderate level of
Geshuri administered “a brief screening for
malingering, ” and determined defendant was
“[n]ot likely to be malingering.” On
cross-examination, Dr. Geshuri conceded defendant said he did
not know the meaning of certain words during the testing
process, and his failure to respond to the questions could
raise the issue of whether he was malingering.
Geshuri testified that defendant had personality and
emotional issues, severe depression, anxiety, and the thought
processes of a 10-year-old child. It was not unusual for such
a person to have suicidal ideations or to have attempted
counsel asked Dr. Geshuri to respond to the following
You have a person who has mild retardation, severe
depression, anxiety, thought disorder, who has attempted to
commit suicide on many different occasions. What is the
likelihood that they could form the intent to kill under any
Generally speaking, people who are in that level of
diminished ability, both in terms of cognitively and
emotionally, think more about killing themselves than killing
Geshuri conceded that someone with “mild mental
retardation” could come up with the idea of killing
someone, it would be something within the realm of that
person's thought processes, and that person would be able
to act on those thoughts.
cross-examination, Dr. Geshuri testified that defendant said
he wanted to die and did not have the nerve to pull the
trigger when he was in the closet. The prosecutor asked
additional hypothetical questions:
If someone shot an officer four times from within a few feet,
including a bullet that hit them right just left of the
center of [the] chest … [¶] isn't that an
action that gives a suggestion of what the person is thinking
when he pulled the trigger?
It's an action, but it doesn't necessarily say what a
person is thinking. [¶] … [¶]
Well, if the person shot the only other officer in the room,
as well, does that not leave you with a thought that perhaps
the person was shooting the officer so he wouldn't get
arrested; is that not a possibility in your mind?
It's a possibility. [¶] … [¶]
Okay. So you have somebody who's running on warrants,
who's saying I don't want to go to jail, it just
doesn't cross your mind that when they shoot two police
officers that they're doing that to avoid going to jail?
It's a possibility, but also [a] possibility that they
really wanted to end it all right there and then.
How do you end it all when you kill the two people who have
guns? …. [¶] Two [officers] in the room …
and you shoot both of ‘em, where's the whole
suicide by cop thing?
That's what he reported to me, and that's what I
reported. I cannot say things that are not - that are
further cross-examination, the prosecutor asked Dr. Geshuri
about defendant's ability to make a false claim:
Are you saying that the defendant is so mentally retarded
that he could not come up with a claim that he was trying to
commit suicide falsely after being arrested?
I'm not saying that.”
Robert Sarrae was assigned to the jail where defendant was
held in custody after his arrest in this case. On April 14,
2015, he received a note from defendant's cellmate that
led to an investigation. It was discovered that
defendant's cellmate had two small, superficial
lacerations, on his wrist and his chest area, which resulted
in light bleeding.
April 26, 2015, defendant made a call from jail to a woman. A
deputy monitored the call and testified defendant told the
woman that he was in the “ ‘hole.' ”
The woman asked why. Defendant said, “ ‘I stabbed
my cellie' ” because defendant was “
‘faded,' ” which meant that he was either
drunk or under the influence of a controlled substance.
Defendant did not sound upset or bothered about the
was charged with counts 1 and 2, the attempted premeditated
murders of Officers Collins and Ferreira, knowing that the
victims were peace officers; and count 3, felon in possession
of a firearm.
counts 1 and 2, it was alleged defendant personally used a
firearm (§ 12022.53, subd. (b)); personally and
intentionally discharged a firearm (§ 12022.53, subd.
(c)); and personally and intentionally discharged a firearm
that proximately caused great bodily injury or death to
Officers Collins and Ferreira (§ 12022.53, subd. (d)).
as to counts 1 and 2, it was further alleged the offenses
were committed for the benefit of a criminal street gang and
were punishable by life in prison (§ 186.22, subd.
enhancement was separately alleged for count 3 (§
186.22, subd. (b)(1)(A)).
28, 2015, after a jury trial, defendant was convicted of all
jury found the gang allegations were not true for counts 1
and 2, attempted premeditated murder of the two officers, but
that the allegation was true ...