People v. Gonzalez

• Decision Date: 30 March 2016
• Docket Number: B255375
• Citation: 246 Cal.App.4th 1358,202 Cal.Rptr.3d 26
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jorge GONZALEZ et al., Defendants and Appellants.

246 Cal.App.4th 1358

202 Cal.Rptr.3d 26

The PEOPLE, Plaintiff and Respondent

v.Jorge GONZALEZ et al., Defendants and Appellants.

B255375

Court of Appeal, Second District, Division 4, California.

Filed March 30, 2016

As Modified on Denial of Rehearing April 28, 2016

Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Gonzalez.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Erica Michelle Estrada.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant Alfonso Garcia.

Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

MANELLA

, J.

INTRODUCTION

Appellants Jorge Gonzalez, Erica Michelle Estrada, and Alfonso Garcia appeal from judgments and sentences following their convictions for the murder of Victor Rosales under a felony-murder theory. Appellants challenge the trial court's evidentiary rulings, its jury instructions and their sentences. They contend the trial court erred in admitting the statements of an unavailable percipient witness under the spontaneous statement exception to the hearsay rule. They also contend the court erred in instructing the jury to determine whether a prosecution witness was an accomplice, and argue that the purported accomplice's testimony was not sufficiently corroborated. Appellants further argue that because the information charged them with malice murder, they were entitled to instructions on malice murder, its lesser included offenses and the defenses of accident and self-defense. Estrada and Garcia contend they were improperly sentenced to life imprisonment without the possibility of parole because the jury's true findings on the robbery special circumstance enhancement were not supported by sufficient evidence. Finally, they contend the abstracts of judgment improperly reflect imposition of a parole revocation restitution fine.

With the exception of the claim regarding the parole revocation fines, we reject appellants' contentions. The record supports the trial court's admission of the percipient witness's remarks as spontaneous statements, as they were made shortly after the shooting of Rosales, while the witness was under the influence of that startling event, and were not testimonial. As to the alleged accomplice, we conclude that he was not an accomplice as a matter of law, and that the trial court properly instructed the jury to determine the issue. Moreover, any error was harmless, as the alleged accomplice's testimony was sufficiently corroborated.

With respect to the trial court's failure to instruct, sua sponte, on malice murder, its lesser included offenses and defenses, we conclude that in light of the jury's guilty verdicts on felony murder and its true findings on the robbery special circumstance allegations, any error was harmless. To the extent People v. Campbell (2015) 233 Cal.App.4th 148, 182 Cal.Rptr.3d 491

(Campbell ) suggests a different analysis, we respectfully disagree. Finally, we conclude that under People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 (Banks ), there was sufficient evidence to support the jury's true findings as to all appellants on the robbery special circumstance allegation. Thus, appellants were statutorily eligible to be sentenced to life imprisonment without the possibility of parole. Accordingly, we affirm the convictions and modify the abstracts of judgment to delete the parole revocation fines. As amended, the judgments are affirmed.

PROCEDURAL HISTORY

Appellants were charged in a second amended information with the malice murder of Rosales (Pen.Code, § 187, subd. (a)

; count 1).¹ As to all appellants, it was alleged that a principal was armed with a firearm (§ 122022, subd. (a)(1)), and that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)). Gonzalez was also charged with shooting at an occupied vehicle. (§ 246; count 2.) As to both counts, it was alleged that Gonzalez personally and intentionally discharged a firearm which caused great bodily injury and death to Rosales (§ 12022.53, subds. (b), (c) & (d)).

A jury found appellants guilty on count 1, found true the robbery special-circumstance allegation, and found not true the firearm allegations. The jury acquitted Gonzalez of count 2. The trial court sentenced each appellant to life imprisonment without the possibility of parole.

Appellants filed timely notices of appeal.

FACTUAL BACKGROUND

A. The Prosecution Case

1. Anthony Stephen Kalac's Testimony

After asserting his Fifth Amendment right against self-incrimination at trial, Anthony Stephen Kalac was granted use immunity.² He testified that on October 6, 2009, he went to Garcia's house to get high. He had known Garcia for several years. At the house, Garcia introduced Kalac to his girlfriend, Jennifer. Kalac, who already had taken 10 “hits” of heroin, began smoking several more.

Garcia announced they were going to a hotel down the street to celebrate “somebody's girlfriend's birthday.” Kalac left his heroin stash at Garcia's house. Garcia, Kalac and Jennifer then walked to the Crystal Inn, which was nearby on Prairie and 112th Street.

At the Crystal Inn, Garcia knocked on a door of a second floor room. Gonzalez opened the door. Garcia introduced Kalac to Gonzalez and to the other occupant—Gonzalez's girlfriend, Estrada. Kalac entered and sat on a couch while the other occupants began speaking among themselves. Garcia told Gonzalez, “Let's pack a bolt,” which referred to putting methamphetamine into a pipe to smoke. Gonzalez replied that there were no drugs in the room. Garcia, Gonzalez, and Estrada then discussed where they could obtain drugs. Kalac left the hotel to meet his heroin dealer at a nearby location. When the dealer did not show up, Kalac returned to the hotel room. Garcia, Gonzalez, Estrada and Jennifer were still present.

Estrada told Garcia and Gonzalez that she had someone they could “come up on.” Kalac understood “come up on” to mean “rob.” Estrada said the proposed robbery victim was a drug dealer. She also mentioned he was an ex-boyfriend who had been “physical” with her. At this point, Gonzalez became “agitated.” Estrada, Garcia, and Gonzalez began talking about robbing the person Estrada had mentioned. Because no one in the room had money, Erica asked Kalac for money to pay for a room at a hotel next door. She stated she would give Kalac heroin from the robbery in return for the money. He gave Estrada $30, but did so unwillingly.

He did not intend to assist or facilitate the robbery.

Estrada then told everyone to be quiet so she could call the drug dealer. She told the dealer to meet at the laundromat across the street in 30 minutes.

After the conversation, Garcia and Gonzalez left for the laundromat. Garcia said he would act as a lookout. Kalac never saw a gun or heard guns discussed.

Estrada called the drug dealer again to find out when he would arrive at the laundromat. After this call, Estrada began packing to move out of the hotel. Kalac and Jennifer helped Estrada load the bags into her car, a black Cadillac. They drove to the American Inn, just south of the Crystal Inn. Responding to a phone call, Estrada said she would “be there in two minutes,” and left shortly thereafter with Jennifer, leaving Kalac in the hotel room.

After several minutes, Kalac decided to go home. He was walking south on Prairie Street when he saw Garcia and Gonzalez on the other side of the street. Garcia crossed the street and told Kalac that “shit went bad.” Kalac and Garcia then walked to the American Inn. Garcia changed his clothes, and the two men walked to Garcia's house, where Kalac retrieved his heroin and left for home. He denied seeing or handling the gun used to shoot Rosales. In February or March 2010, Kalac encountered Jennifer. She told him the drug dealer had died.

2. Other Evidence Concerning Kalac

Inglewood Police Officer Michael Han testified that on February 1, 2010, an informant who requested anonymity came to the police station, stating she had information about a murder. Officer Han spoke with the informant and later sent out a group e-mail to all homicide detectives. The email stated: “ ‘For your information, on Monday, February 1, 2010, I met with an anonymous informant at the IPD Lobby. The informant said he/she heard the following story from a male white subject by the name of Anthony Kalac. The informant relayed that recently he/she heard Anthony Kalac talk about a robbery to a drug dealer. Anthony Kalac said a male subject by the name of “Ralph” or “Alf” was the mastermind in the robbery. On or about October, 2009, “Ralph,” Anthony Kalac, and two other subjects (one male and one female) executed the robbery. Anthony Kalac said “Ralph” shot and killed the drug dealer, who was in the car, in the area of 113th Street and Prairie Avenue. After the murder “Ralph” gave the gun to Anthony Kalac to get rid of it.’ ”

The informant was later identified as Stefanie San Angelo. She testified she was dating Kalac in 2009. A few days before she talked with Detective Han, she had received information that Kalac might have been involved in a shooting. She could not recall whom she heard it from. She provided that information to the detective. After talking with the police, she spoke with Kalac. Kalac said he had gone to buy some drugs with “Alf and there was another guy and female there. They intended to jack somebody. It was either the girl's boyfriend, ex-boyfriend.... They contacted him. He came out. They went down to meet with him. [Kalac] stayed in the room.... He [the victim] wasn't giving it up. He either tried to run away or drive away. They shot at him, hit him, and that was it.” San Angelo was not sure how Kalac learned of the shooting. She had asked him, “Did you walk past a...