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People v. Aviles

California Court of Appeals, Fifth District

September 13, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
LUIS ARRELLANES AVILES, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          APPEAL from a judgment of the Superior Court of Tulare County Nos. VCF321552 & VCF283307. Kathryn T. Montejano, Judge.

          S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          OPINION

          POOCHIGIAN, Acting P.J.

         INTRODUCTION

         Appellant/defendant 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 wounded.

         Defendant was charged and convicted of counts 1 and 2, the attempted premeditated murders of the two police officers (Pen. Code, §§ 664/187, subd. (a))[1] 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)).

         We affirm defendant's convictions in counts 1, 2, and 3 and the jury's findings on the firearm enhancements.

         In the 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.

         We will 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.

         FACTS[*]

         On May 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 windshield.

         Officer 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 their badges.

         Around 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.

         The 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.

         Officer 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.

         Officer 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.[2]

         The officers decided to stop and check out the vehicle; they pulled their car to the curb in front of the residence.

         Defendant Jumps the Fence

         Officer 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.”

         When 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.

         Detention of Marquez

         When 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.

         There was no evidence that Marquez was in possession of any contraband.

         The Search for Defendant

         Numerous 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.

         A 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.

         A 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.

         Officer 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.

         Officer 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.

         Officer Collins Finds Defendant in the Closet

         After 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.

         Officer 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 hallway.

         Officer 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 shoulder.

         Defendant Shoots Officers Collins and Ferreira

         Officer 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 the closet.

         As 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 shoulder.

         Officer 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.

         Officer 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.

         After 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.

         Officer Collins backed away from the closet, but defendant fired another shot, and Collins was hit in the upper left arm.

         Officer 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.

         Officer 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.

         As 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.

         Officer 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.

         Apprehension of Defendant

         The 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.

         Officer 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.

         The 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.

         Defendant 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.

         The Officers' Injuries

         Officers Collins was shot four times. He was in the hospital for two or three days, and unable to return to work for eight months.

         Officer Ferreira was shot once and did not return to work for two months.

         Evidence Recovered in the Area

         Defendant's weapon was found on the bedroom floor. It was a.357-caliber Magnum Ruger Blackhawk revolver. It contained six expended shell casings.

         The 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.

         The 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).

         A 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.

         Defendant's Tattoos

         An 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.

         Defendant 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.

         Officer Collins testified defendant had a closely-shaved head that showed tattoos; they were hidden by his hair length at the time of trial.

         Marquez's Clothing and Tattoos

         Detective 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.

         Marquez 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.

         Marquez 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.[3]

         Defendant's Wife

         Andrea 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 child.

         Ms. 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.”

         Ms. 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.

         Defendant 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.

         Ms. 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 out.[4]

         Ms. 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.

         THE PROSECUTION'S GANG EVIDENCE[*]

         Gang Evidence[5]

         Officer 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 drugs.”

         Officer 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 members.

         Officers 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 enforcement.

         The Gang Stipulations

         Just before the prosecution's gang expert testified, the court advised the jury that the parties had entered into two stipulations.

         The first stipulation was that the “Norteños are a criminal street gang within the definition of … section 186.22.”[6]

         The 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 loops.”[7]

         The Prosecution's Gang Expert[8]

         Visalia Police Officer Logan, a member of the Gang Suppression Unit, testified as the prosecution's expert on criminal street gangs.

         Officer 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 tattoos.

         The 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.”

         Officer 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 members.”

         Over 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.

         The Sureño gang was the “number one enemy” of the Norteños. Law enforcement officers are also considered enemies of the Norteños.

         Officer 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 members.

         Officer 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.

         “It 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 [sic] get.”

         The 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.”

         Officer Logan testified about members of different gangs being together:

         “Q. And what is the relevance of gang members hanging out with other gang members?

         “A. 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 together.”

         Officer 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.

         The Gang Expert's Testimony About Defendant

         Officer 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.

         On 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 gang members.”

         Officer 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 gang-associated tattoos.

         Officer 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 gang member.

         Officer 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.”

         The Gang Expert's Testimony About Marquez

         Officer 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 Norteño.

         Officer 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.”

         On 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.

         On 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.

         On May 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.

         On September 12, 2010, Marquez was contacted by an officer during a traffic stop. Marquez was wearing gang clothing and said he “affiliates” with Norteños.

         Additional Stipulations

         The 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.

         The 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, subdivision (a).[9]

         DEFENSE EVIDENCE[*]

         Detective 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 this case.

         Sanchez 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 members.

         Detective 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

         On 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.

         Defendant's Trial Testimony

         Defendant testified on his own behalf.[10] Defendant admitted he had a history of selling drugs and had been incarcerated before.

         Defendant 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.

         Defendant had three children who had been removed from his custody and adopted, and that was part of the reason for his depression.

         Defendant 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.

         Defendant 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.

         Defendant 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.

         Defendant knew there was an outstanding warrant for his arrest, with a remand date to report to jail to serve time for a prior offense.

         Defendant 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 trigger.

         Defendant 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.

         Defendant 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.

         Defendant remembered that he was dragged out of the room and became unconscious. When he woke up, he was upset because he was still alive.

         Defendant 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 anxiety.

         Defendant 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 incident.

         Defendant 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 2014.

         At the 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 hole.

         Defense Expert[11]

         Dr. 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.

         Dr. Geshuri testified there were different grades of “mental retardation, ” from moderate to mild; then severe; and profound as the highest level.[12] 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 retardation.”

         Dr. 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.

         Dr. 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 suicide.

         Defense counsel asked Dr. Geshuri to respond to the following hypothetical:

         “Q. 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 given situation?

         “A. 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 others.”

         Dr. 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.

         On 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:

         “Q. 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?

         “A. It's an action, but it doesn't necessarily say what a person is thinking. [¶] … [¶]

         “Q. 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?

         “A. It's a possibility. [¶] … [¶]

         “Q. 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?

         “A. It's a possibility, but also [a] possibility that they really wanted to end it all right there and then.

         “Q. 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?

         “A. That's what he reported to me, and that's what I reported. I cannot say things that are not - that are speculated.”

         On further cross-examination, the prosecutor asked Dr. Geshuri about defendant's ability to make a false claim:

         “Q. 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?

         “A. I'm not saying that.”

         REBUTTAL EVIDENCE[*]

         Deputy 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.

         On 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 situation.[13]

         PROCEDURAL HISTORY[*]

         The Information

         Defendant 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.

         As to 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)).

         Also, 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. (b)(5)).

         A gang enhancement was separately alleged for count 3 (§ 186.22, subd. (b)(1)(A)).[14]

         Convictions and Sentence

         On July 28, 2015, after a jury trial, defendant was convicted of all three counts.

         The 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 ...


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