People v. Borruel
| Decision Date | 02 December 2022 |
| Docket Number | B307987 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANK BORRUEL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA480148, Judge George G. Lomeli. Vacated, Reversed in part and Remanded.
Danalynn Fritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Frank Borruel of second degree murder (Pen. Code, § 187, subd (a))[1] and being an accessory after the fact (§ 32). The jury found true gang enhancement allegations (§ 186.22) as to both counts and further found true that a principal discharged a firearm during a gang-related offense, resulting in death. (§ 12022.53, subds. (d)/(e)(1).) The trial court sentenced appellant to a total term of 70 years to life in state prison.
On appeal, appellant raises ten issues, contending: (1) the trial court erred in denying a hearing on his motion to traverse and quash a search warrant; (2) there was insufficient evidence establishing his involvement in the murder and/or that he aided and abetted the shooter; (3) his dual convictions for being both an aider and abettor to murder and an accessory after the fact are duplicative and the latter count must therefore be dismissed; (4) the evidence was insufficient to support the gang enhancement allegations; (5) the trial court erred in allowing expert testimony regarding a "common call analysis"; (6) the trial court erred in instructing the jury on aiding/abetting by including language that principals are "equally guilty" and by repeating the "equally guilty" language in answer to a jury question; (7) the alleged trial errors resulted in cumulative prejudice; (8) Assembly Bill No. 333 (2021-2022 Reg. Sess.; Stats. 2021, ch 699, §§ 1-5) (AB 333) requires reversal and retrial of the gang and gang-related firearm enhancement allegations (9) in light of the California Supreme Court's recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), the case must be remanded for the court to exercise its discretion whether to strike the section 12022.53, subdivision (d)/(e)(1), enhancement and instead impose a sentence under subdivisions (b) or (c); and (10) the court erred in imposing a $7,500 victim restitution award.
We conclude, and respondent concedes, that the case must be remanded to allow retrial of the gang and gang-related firearm enhancement allegations. We also agree with appellant that his accessory after the fact conviction must be reversed because it is based on essentially the same conduct that gave rise to the murder conviction. Discerning no cognizable or reversible error in the remaining claims, we affirm the judgment in all other respects.[2]
On March 5, 2018, Jesus Verduzco was shot by an assailant riding on a bicycle. Verduzco was a member of the 41st Street gang.
About ten or fifteen minutes later, Juan Ortiz, who was riding his bicycle in a nearby area, was fatally shot by a 41st Street gang member named Kamal Cleveland.
At trial, the prosecution presented evidence that connected the two shootings, as well as evidence that appellant, another 41st Street gang member, drove Cleveland to the second shooting and drove him away after the murder.
On March 5, 2018, around 12:35 p.m., Mayra Saucedo was walking near her home at 42nd Street and San Pedro Street when she saw a group of approximately four Hispanic men in their 20s on bicycles shoot someone. The bicyclists fled, but one bicycle remained behind. A truck pulled up; someone placed the bicycle in the truck and then drove away. Saucedo did not see any other vehicles.
Patricia Flores was at a food truck, near Gilbert Lindsay Park, when she heard four gunshots coming from near San Pedro Street. Several minutes later, she saw a man with blood on his face run across the street towards the park, asking for help.[3] The man collapsed in the park, and people gathered around him. Approximately five minutes later, a "sporty car," possibly a Mustang, and a Toyota Tacoma truck pulled over on San Pedro Street. Two African-American men and two Hispanic men got out of the vehicles and spoke to the person who had been shot. All the men were in their 20s. Several minutes later, as police sirens could be heard approaching the area, the men got back into their respective vehicles and drove away.[4]
Los Angeles Police Officer Marc Carrillo responded to the park and saw the shooting victim, Verduzco, also known as "Troubles," with wounds to his mouth and shoulder. Verduzco had 41st Street gang tattoos and was known to be a 41st Street gang member. Another officer, Paul Miller, attempted to obtain information on the shooter from Verduzco, who did not respond.
Officer Carrillo canvassed the area for witnesses and looked for evidence. Carrillo saw a blood trail and bullet casings on the sidewalk of the northwest corner of 42nd Street and San Pedro Street. Further east on the same sidewalk, Carrillo found a firearm. Verduzco later admitted to having fired the gun.
In the meantime, Officer Miller, who had activated his body-worn camera, was about to cross San Pedro Street when a Toyota Tacoma truck passed in front of him. The handlebars of a bicycle were visible in the back of the truck.
Other officers at the scene located surveillance footage from San Pedro and East 42nd Street. The videos showed a white Camaro with tinted windows and dark rims, as well as a pickup truck. Neither the driver nor the license plate of the white Camaro could be seen in the video.
Verduzco was interviewed at the hospital. He indicated the shooter did not mention a gang name. Verduzco maintained he had shot his own gun at the sky and declined an offer to be placed in protective custody. No suspect was ever identified as the shooter; nor was there ever a particular gang connected to the shooting of Verduzco.
At 12:48 p.m., ten or fifteen minutes after the first shooting, police responded to a second shooting nearby. Juan Ortiz had been shot in front of his sister Monique's apartment on McKinley Avenue south of 51st Street. As Juan was approaching her apartment on his bicycle, Monique heard about six shots and saw him fall to the ground. Monique did not hear anyone say anything-or yell any gang names-before the shooting. A neighbor stated, "[t]hey went that way," and Monique saw a white car with tinted windows "going fast" down McKinley and passing 52nd Street.
Just before Ortiz was shot, Carlos Estevez was in his car stopped behind a new white car, either a Camaro or a Dodge, heading southbound on McKinley Avenue at the intersection of 51st Street. The white car had a rear license plate but Estevez did not get the number. While they were stopped, an African-American man, approximately 20-to-21 years old and wearing denim pants, got out of the passenger side of the car, crossed the street between 51st and 52nd Streets, and headed south on McKinley. After Estevez lost sight of the man, he heard seven or eight gunshots. Estevez parked his car, exited the vehicle, and saw a bloodied man on the ground. The African-American man got back into the passenger side of the white car, which was halfway between 51st and 52nd Streets. The white car then turned left on 52nd Street.
An ambulance arrived and took Ortiz to the hospital. Ortiz, who had three gunshot wounds, died from a gunshot wound to the back which pierced several organs, including his heart.
Six .40 caliber casings and a bullet fragment were found near the curb on McKinley. A bicycle was lying near the casings.
Surveillance video from nearby residences and a market depicted a white Camaro with black rims and tinted windows at the scene. There did not appear to be a front license plate on the Camaro, and the rear license plate number was not visible on the video. In video obtained from the market, a person could be seen exiting the white car and shooting Ortiz.
After Ortiz's murder, Officer Aaron Hernandez viewed surveillance video and identified 21-year-old Cleveland as the shooter. Officer Hernandez was familiar with Cleveland based on prior contacts and recognized the way in which Cleveland's right hand curled inwards in a distinctive manner. Cleveland had tattoos on his right hand and chest stating, "BSR," which stood for "Brown Sur Rifa," a clique of the 41st Street gang, as well as the numbers 4 and 1 tattooed on his face.
On March 6, 2018, the day after the shootings, Officer Hernandez was patrolling in a police vehicle when he saw Cleveland within the territory of the 41st Street gang, approximately four blocks from Gilbert Lindsay Park. Cleveland appeared to be trying to hide between some cars in a parking lot. Officer Hernandez arrested him. At the time, Cleveland had one cellular telephone in his possession; the phone was confiscated by Hernandez and given to Detective Thompson.
On May 10, 2018, at approximately 10:16 p.m., Officer Maraea Toomalatai and her partner were patrolling Main Street, less than a mile from Gilbert Lindsay Park, when she saw a white Camaro with silver rims, a tinted driver's side window and a black hood, rooftop, and trunk driving down Martin Luther...
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