People v. Arzate
| Decision Date | 27 February 2019 |
| Docket Number | B286532 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. VICTOR MARCUS ARZATE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA136663)
APPEAL from the judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Affirmed in part, reversed in part and remanded with directions.
Kathy R. Moreno, 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, David E. Madeo, Theresa A. Patterson, and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * * Defendant and appellant Victor Marcus Arzate (defendant) was convicted, along with his codefendant Anthony Michael Delci, of first degree murder. Gang and firearm use allegations were also found true. Defendant was sentenced to state prison for a term of 60 years to life.
Defendant challenges his conviction on numerous grounds. He argues the admission of his pretrial statement to an undercover agent violated his rights under the Fifth and Fourteenth Amendments against self-incrimination. Defendant also contends the prosecutor committed misconduct during closing argument by arguing his opinion of defendant's guilt and improperly vouching for prosecution witnesses. In the alternative, defendant contends his counsel was ineffective for failing to object to the improper argument. Defendant further argues the gang enhancement is not supported by substantial evidence, and that case-specific hearsay was admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Defendant argues prejudicial cumulative error based on the combined prejudice arising from the admission of his confession and the gang evidence, as well as the prosecutorial misconduct. Defendant argues that even if his conviction is affirmed, a remand for resentencing is warranted in light of the amendment of Penal Code section 12022.53 during the pendency of this appeal. Finally, in supplemental briefing, defendant argues two statutory fees must be reversed and the restitution fine stayed in light of the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude a limited remand is warranted to allow the trial court the opportunity to exercise its sentencing discretion as now afforded by the amended version of Penal Codesection 12022.53, subdivision (h). We affirm defendant's conviction in all other respects.
On the afternoon of August 30, 2014, Joann R.1 was at her home near La Cuarta Avenue and Washington Street in the city of Whittier. Her adult son, Jonathan R., and adult daughter, Maria G., as well as several other family members were also there. Maria, who had been on the front porch with one of her children and Jonathan, came inside and told her mother not to go outside because a white car had driven by and someone in the car had been "throwing" gang signs.2
A few minutes later, Joann and Jonathan went out into the front yard to pick up a few items that had been left outside. Joann saw a man (who she later identified as defendant) standing in the street in front of her house. Defendant yelled at Jonathan "where you from?" Joann understood this to be gang talk. Jonathan yelled back that he was "from nowhere," attempting to indicate he had no gang affiliation.
Looking through a window from inside the house, Maria saw that the white car had returned and one of the passengers was out in the street. She could hear her brother saying that hewas "from nowhere" but otherwise could not hear what was being said.
Defendant kept yelling at Jonathan so Joann said By that point, Jonathan had stepped out to the front gate which was open to the sidewalk. Joann noticed that defendant was holding a "shiny" handgun. She yelled at her son that the man had a gun and Jonathan told her to run. Joann turned and headed toward the back yard. From the window, Maria saw her brother turn his back on defendant as if to come back inside the house. And then, defendant started shooting.
Joann heard a gunshot and Jonathan yelling out. When she turned back toward her son, she heard another shot and saw Jonathan fall onto his knees, bleeding, and clutching at the gate. She heard a total of four gunshots. Joann screamed for her daughter as she tried to help her son. Maria and her boyfriend ran outside and someone called 911.
Juan G. witnessed a portion of the incident from his car, as he happened to be driving by that afternoon. Juan and his wife were driving eastbound on La Cuarta Avenue near the intersection with Washington Street. Juan saw two men in the street that appeared to be in a "heated" conversation. His windows were rolled up so he could not hear what they were saying, but they were about four feet apart and he could see they were yelling at each other. One of the men was wearing black shorts, a black tank top, a baseball cap and was holding a "shiny silver" revolver down at his side. Juan tried to drive around them and make a left turn but a white Honda CRV was blocking the alley, so he made a right turn instead. Almost immediately he heard four gunshots. When he looked in his rearview mirror,he could see the Honda still in the alley facing the street. The man in the black shorts ran toward the white Honda, jumped into the front passenger seat and then the Honda immediately drove off down the street.
Juan did not get a good look at the faces of the men involved in the argument so he could not identify anyone, but after he made his turn down the alley and came around the block, he saw the Honda again, as it was fleeing the scene. He was able to write down the license plate number because of traffic congestion. He saw two, possibly three, people in the Honda. Juan drove back to the where the shooting had occurred to give the police officers the license plate number. Police officers were already on the scene when he arrived.
On that August afternoon, G.E. was 14 years old and had just been jumped into the Pico Nuevo gang the night before by defendant, who used the moniker Suspect, and codefendant Delci, who went by the moniker Toker. Sometime around noon, they were driving around in the city of Whittier in Delci's white Honda CRV. Delci was driving, defendant was in the front passenger seat and G.E. was sitting in the back seat.
When they pulled up to the intersection of La Cuarta Avenue and Washington Street, G.E. saw some people standing outside a house on the corner. G.E. thought they might be gang members because they had a lot of tattoos. G.E. "threw a gang sign" out the window--a "P" for Pico Nuevo. They drove around and eventually came back to that same intersection. One of the men with the tattoos was still standing outside the home near some trash cans. Delci stopped the Honda, and defendant grabbed a silver handgun and got out of the car. G.E. asked Delci what was going on and he said, "who knows," and told G.E. tojust calm down and be cool. Defendant walked toward the other man who was now standing at the open gate in the front yard. Defendant stopped in the middle of the street.
G.E. saw defendant holding the gun in his hand, with his arm down at his side. Defendant and the other man started "banging on each other," meaning they were saying, "Ese, where you from?" G.E. then heard at least three gunshots and saw the other man fall to the ground near the gate. He noticed for the first time there was an older woman in the yard and she put her hands up to her face. G.E. was shocked and "frozen" in the back seat. Defendant ran back to the Honda. When he got inside, defendant said "I got him." They then fled the scene.
Jonathan was transported to the hospital where he was pronounced dead. His cause of death was identified as multiple fatal gunshot wounds (one to the lower back and one to the back of the right leg).
Detective Jose Bolanos of the Whitter Police Department interviewed Jonathan's sister Maria at the scene shortly after the shooting occurred. She wanted to remain anonymous and appeared fearful. Detective Bolanos also ran the partial license plate number they had been given for a white Honda. He and the other officers investigating the shooting were eventually able to identify codefendant Delci as a possible suspect.
Around 10:00 that same night, Delci was seen driving the white Honda. He was pulled over and detained. Prior to getting out of the vehicle, Delci made gestures with his hands consistent with known gang signs. The Honda was impounded and searched the next morning. The rear driver's side cargo panel was loose. When the panel was removed, a stainless steelrevolver was found inside, along with a "speed loader" for the revolver. Subsequent ballistics testing matched the revolver to the bullets recovered from Jonathan's body during the autopsy.
Sometime in early September 2014, defendant was arrested and taken into custody on an unrelated robbery charge. Detective Chad Hoeppner of the Whittier Police Department, along with another detective, interviewed defendant with respect to the robbery charge and also took a DNA sample. During this questioning, defendant invoked his right to remain silent and requested counsel.
Detective Hoeppner then arranged for an undercover agent to be placed with defendant in a holding cell. The undercover agent was not a law enforcement officer. He had several tattoos...
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