People v. Acero

• Court: California Court of Appeals
• Writing for the Court: HOFFSTADT
• Decision Date: 03 May 2018
• Docket Number: B278213
• Citation: People v. Acero, B278213 (Cal. App. May 03, 2018)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LINO JESUS ACERO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. LINO JESUS ACERO, Defendant and Appellant.

B278213

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

May 3, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA106410)

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed.

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * Lino Jesus Acero (defendant) walked into an AM/PM Mini-Mart in 1994 and demanded that the clerk empty the register; when the clerk refused, defendant pulled out a gun, shot him in the chest, and fled in a waiting car. Defendant was 17 years old at the time. More than 20 years later, defendant was charged with, and convicted of, murdering the store clerk, and was sentenced to prison for life without the possibility of parole. On appeal, defendant, who is now 40 years old, argues that he should have been tried in juvenile court; that the trial court made numerous instructional and evidentiary errors; that substantial evidence does not support the special circumstance justifying his life sentence; that the trial court erred in handling a juror who was reported to be sleeping; that the cumulative effect of these errors warrants reversal; that his sentence is cruel and unusual punishment; and that he is entitled to a remand to allow the trial court discretion to strike a firearm enhancement. We conclude that defendant's arguments lack merit, and affirm his conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The Crime

On a Friday in November 1994, two men walked into an AM/PM Mini-Mart in Diamond Bar, California. One of them approached the store clerk and demanded money from the cash register. The clerk did not comply. The man making demands walked behind the counter, pulled out a gun, and pointed it at the clerk with his left hand; the clerk still did not comply. The man then shot the clerk in the chest. Without taking any money, the shooter and his companion fled to a car waiting outside the Mini-Mart. The clerk died.

B. The Investigation

1. Immediate investigation

Law enforcement could not immediately identify the shooter or his companion.

Two customers were inside the Mini-Mart at the time of the attempted robbery and shooting: One described the shooter as a thin-built Hispanic man approximately five feet seven or five feet nine inches in height who was dressed "like a cholo," while the other described the shooter as "definitely white" but was unable to assign any ethnicity.

The Mini-Mart's rotating surveillance cameras recorded most of the incident, but they were of poor quality. The resulting videotapes did not capture the shooter's facial features, but still made it possible to identify the shooter's sex, skin color, hair, and clothing as well as the fact that the shooter had a tattoo on the back of his neck and that he was left handed.

Without any definitive leads regarding the shooter's identity, the investigation was shelved.

2. Ten years later

In 2004, law enforcement reopened the investigation into the shooting by airing the Mini-Mart surveillance video on "L.A.'s Most Wanted," a television show showcasing unsolved crimes. Jennifer Estes (Estes) called in, and reported that she immediately recognized defendant as the shooter in the video. Estes confirmed that defendant had a tattoo on the back of his neck and was left handed. Estes and defendant had dated and used drugs together for many years after the shooting. Defendant is five feet five inches tall.

Because defendant was incarcerated on other matters for months and years at a time, the investigation was once again put on hiatus.

3. Twenty years later

In 2013, law enforcement showed the two Mini-Mart customers a photo spread containing defendant's photograph; neither identified defendant as the shooter.

In 2014, law enforcement followed up on defendant as a possible subject by shaking the proverbial trees: They uploaded the Mini-Mart's surveillance video onto YouTube, obtained a wiretap on defendant's phone, and began interviewing defendant's friends and family regarding the shooting.

On the wiretapped calls, defendant spoke with his family and friends about the YouTube video. During some conversations, he denied any involvement in the robbery/murder. In others, he acknowledged his involvement: He told one friend, "Dude, they . . . got me on fucking camera"; he told his aunt, "when I was 17 years old, I went into an AM/PM and fucking shot some fucking guy at the register and didn't get nothing. And I didn't wear no ski mask and—it's on YouTube"; he told his brother that one of his ex-girlfriends "knows it's me"; and when his nine-year-old daughter said, "it doesn't look like you," defendant responded, "I know, but it is, that's, that's when I was 17 years old." Defendant also told his brother not to answer any questions from the police.

Law enforcement interviewed Crystal Perry (Perry), a woman who dated defendant after the robbery and had two children with him. When the interviewing officers showed Perry the surveillance video, she began to cry; when asked why, she said, "because it looks like [defendant]."

Thereafter, law enforcement arrested defendant and placed him in a jail cell with an undercover officer. Law enforcement then staged a lineup; afterwards, defendant told the undercover officer that he had changed his walk during the lineup so it was unlike the video.

II. Procedural Background

The People charged defendant with a single count of murder (Pen. Code, § 187, subd. (a)).¹ The People also alleged the special circumstance that the murder occurred while defendant was "engaged in the attempted commission of the crime of robbery," thereby rendering defendant eligible for the death penalty or life without the possibility of parole (§ 190.2, subd. (a)(17)). The People further alleged that defendant "personally used a firearm" (§ 12022.5, subd. (a)).

Because defendant was 17 years old at the time of the crime, the trial court transferred the matter to the juvenile court for a "fitness hearing." The juvenile court held an evidentiary hearing and, applying the law in effect at 1994, found that defendant was not fit for adjudication in juvenile court. The case was transferred back to adult court.

The matter proceeded to a jury trial.

At trial, the People introduced the evidence discussed above. Also, one of the two Mini-Mart customers identified defendant as the shooter. Defendant called his brother to testify that the person on the video was not defendant as well as three expert witnesses—an expert on eyewitness identifications, a medical expert who testified about the trajectory of the clerk's wounds, and a forensic video expert.

The jury found defendant guilty of first degree murder, and found the special circumstance and firearm allegations to be true.

The trial court sentenced defendant to prison for life without the possibility of parole, and struck the firearm enhancement.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Trial in Adult Court

Defendant argues that this case should have been tried in juvenile court because he was 17 years old at the time of the crime and because the newly enacted Proposition 57 entitles him to a hearing before the juvenile court to decide whether he should be tried as a juvenile or an adult. We need not decide what standard of review to apply to this claim because we independently conclude that defendant is not entitled to the relief he seeks.

The Public Safety and Rehabilitation Act of 2016 was adopted by the voters in November 2016 as Proposition 57. (Welf. & Inst. Code, § 707, subd. (a).) Under Proposition 57, the People can no longer file charges against a juvenile charged with more serious felonies, including murder, directly in adult court. Instead, the People must first file in juvenile court and ask the juvenile court to transfer the case to adult court; the juvenile court is then tasked with evaluating whether the juvenile is fit for adjudication in adult court after considering five statutorily enumerated factors. (Id., § 707, subd. (a)(2); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Proposition 57's provisions apply retroactively to any defendant whose conviction was not "final" as of November 2016. (Id. at pp. 303-304.) Although defendant was tried, convicted, and sentenced beforeNovember 2016, his conviction is not yet final (People v. Smith (2015) 234 Cal.App.4th 1460, 1465); accordingly, Proposition 57's procedures apply to him.

We nevertheless conclude that defendant is not entitled to relief under Proposition 57, and do so for two reasons.

First, the juvenile court in this case already held a fitness hearing that is functionally indistinguishable from the one required by Proposition 57. To be sure, the juvenile court applied the law in effect in 1994. Under that law, a juvenile court was tasked with deciding whether the juvenile is "fit" for adjudication in juvenile court after considering five statutorily enumerated factors;² if the juvenile is charged with a serious felony (such as murder), the juvenile is presumed not to be fit for juvenile court but the juvenile may rebut that presumption by showing that he is fit for juvenile court under all five factors. (Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 773-774.) The five factors enumerated by the 1994 law are the...