People v. Carranco, H032412 (Cal. App. 2/24/2010)
| Decision Date | 24 February 2010 |
| Docket Number | H032412. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Appellant, v. JESSE CARRANCO, Defendant and Appellant. |
Appeal from the Santa Cruz County, Super. Ct. No. F12954.
Not to be Published in Official Reports
After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187) for Townley's shooting of Javier Zurita Lazaro on February 17, 2006 in Santa Cruz. The jury found that Townley was armed with a handgun (Pen. Code, § 12022) that he personally used (Pen. Code, §§ 12022.5, 12022.53, subd. (b)) and discharged (Pen. Code, § 12022.53, subd. (c)) and that he personally inflicted great bodily injury on Lazaro (Pen. Code, § 12022.53 subd. (d)). The jury also found that Carranco and Townley were minors who were at least 14 years old at the time of the offense within the meaning of Welfare and Institutions Code section 707, subdivision (d)(2) and were at least 16 years old at the time of the offense within the meaning of Welfare and Institutions Code section 707, subdivision (d)(1). They were charged and tried as adults.
Townley shot Lazaro after Townley and Carranco emerged from a car driven by Noe "Tony" Flores. Jose Ruben Rocha also emerged from that car. Flores and Rocha were originally also charged as codefendants with attempted murder, but their cases were severed on Townley's motion. Before trial in this case, each entered into a plea agreement in which the prosecution would reduce the charges in exchange for their declarations under penalty of perjury. Flores pleaded guilty to assault with a firearm subject to a three-year prison term, and the prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to assault with force likely to produce great bodily injury, with an expected sentence of two years. On the same date that Flores and Rocha entered their pleas, the prosecution filed a motion to reconsolidate the cases of Carranco and Townley, which the court subsequently granted.
After trial, at sentencing Carranco argued it would be unconstitutionally cruel and unusual for him to receive the same punishment as the shooter, Townley, which was a life sentence with the possibility of parole. The trial judge agreed, stating in part: "This is an extremely difficult call." The judge "had a question since day one as to whether anybody in the car besides" Townley and Flores knew that Townley had a gun. "To me it seemed like a case of you really have to be careful who you get in the car and ride around with." Carranco a bat he was holding. The court noted the involvement of Carranco's parents and whole family in gang activities. "[G]iven all these factors, it's my determination that it would constitute cruel and unusual punishment, and would constitute a grossly disproportionate sentence if I were to sentence him to a life sentence based on the conduct in the case." The court imposed the aggravated term of nine years for the attempted murder, plus one year for a principal being armed during the crime. The court ordered Carranco to pay victim restitution of $45,926, and other fines and fees. Carranco and the People have each appealed from the judgment.
On appeal, Carranco has joined in four sets of arguments made by Townley in his appeal, as well as making four of his own arguments. In a published opinion filed on November 9, 2009 in Townley's appeal (H031992), this court determined that it was reversible error for the trial court to impose a gag order forbidding defense counsel from talking to their clients about a written declaration by Flores. (People v. Hernandez (2009) 178 Cal.App.4th 1510.) We will reach the same conclusion for the same reasons in this appeal and will reverse the judgment.
In light of this conclusion, there are several contentions we need not and do not reach, including the People's challenge to the sentence reduction, Carranco's challenge to the victim restitution order, and incorporated arguments by Townley that the prosecutor committed seven kinds of misconduct and that the trial court erred in commenting on Flores's credibility and in excluding Carranco from hearings about Flores's declaration. However, we do consider Carranco's challenge to the sufficiency of the evidence, and for the guidance of further proceedings we will consider the admissibility of Carranco's pretrial statements and a claim of instructional error.
Rocha, Carranco, and Townley did not testify at trial, though each had talked to detectives before trial. Flores did testify at trial, pursuant to subpoena. We will summarize the trial evidence to the extent it is relevant to the contentions on appeal.
According to Flores, around 7 p.m. on Friday, February 17, 2006, Townley called Flores on the telephone and asked him to "do a ride" that night. To Flores, that meant to cruise around, not to go shoot someone. Flores was 18 years old at the time and owned a 1992 white Honda Accord. Flores was carrying in his car a T-ball bat, smaller than a regular baseball bat, as he had since he was "tagged" by some Sureños, whom he called "scraps," in downtown Santa Cruz on December 31, 2005.
According to gang expert Santa Cruz County Sheriff's Sergeant Roy Morales, Norteños and Sureños are rival Hispanic gangs. Norteños identify with the color red, the letter N, the Huelga bird symbol, and various representations of the number 14. Sureños identify with the color blue, the letter M, and various representations of the number 13. "Scrap" or "scrapa" is a pejorative term Norteños use for Sureños.
Flores was aware that Southerners associate with blue and Northerners associate with red. Flores denied being a Norteño gang member or associating with Norteño gang members, but he admitted associating with Norteño associates.
After receiving Townley's telephone call on February 17, 2006, Flores picked up Townley and his girlfriend at Townley's house in Santa Cruz. Townley was wearing a red and black Pendleton shirt-jacket. He was 17 years old, having been born in January 1989.
Shortly after Townley got into the car, he showed Flores a small handgun. Flores handled it briefly and returned it to Townley. Flores did not know if the gun was loaded. He did not see a satchel containing bullets.
Townley gave Flores directions to drive to Watsonville. It was dark when they arrived. They picked two people up, who introduced themselves to Flores. Townley got into the back seat with his girlfriend and Jose "Listo" Rocha, while Jesse "Little Huero" Carranco got into the front seat. Carranco was wearing a red sweatshirt with the words "Santa Cruz" on it. Carranco was 16 years old, having been born in September 1989.
From their conversation, Townley and Carranco seemed to know each other. Flores asked Carranco about four dots on his knuckles. Carranco said it represented the North Side.
North Side Santa Cruz is a Norteño gang with which gang expert Morales had not been familiar prior to this shooting. As far as he knew, it was a small Norteño gang with no connection to a prison gang.
Flores did not recall talking to Townley about his gang association. He did not see Townley show anyone else the gun that night.
They returned to Townley's residence in Santa Cruz, dropped off his girlfriend, and drove around downtown Santa Cruz. Carranco said, "How's that Norte life?" to a pedestrian.
Carranco told Flores where to drive. They parked and visited Anthony Gonzalez's apartment on Harper Street. Flores did not know Gonzalez. There were about 10 teenagers in the apartment drinking. They went into Gonzalez's bedroom for about 15 minutes. Gonzalez and Carranco left the room and talked for a couple of minutes. At the time, Gonzalez identified himself as a Norteño, though not associating with any subset.
Townley, Carranco, Rocha, and Flores left the apartment together. Carranco gave Flores more directions on where to drive. The passengers in the car were talking about finding a Sureño and saying there would be violence. Flores told Detective Sulay that Carranco was doing most of the talking. According to Flores, there was no talk about shooting anyone as they drove around. As they were driving down 17th Avenue, they saw a male pedestrian wearing a blue sweater on a sidewalk in front of an apartment complex. Someone said he might be a Sureño. Flores complied with Carranco's requests to make a U-turn and pull over.
That night, Javier Zurita Lazaro left his apartment to retrieve something from a friend's car. Lazaro lived in the Ocean Terrace apartments on the corner of 17th Avenue and Merrill Street. According to then Santa Cruz County Sheriff's Deputy Stefan Fish, who had worked in the area for five years, at that time the Ocean Terrace apartments were associated with Sureños. According to gang expert Morales, some apartment complexes in Santa Cruz are associated with Norteños, others with Sureños.
Lazaro was born in Mexico, but had lived in Santa Cruz for 10 years. He was 28 years old and was not involved in a gang. He was wearing a sky blue sweatshirt imprinted with the words "North Carolina" and light yellow pants. He lit a cigarette and walked around as he smoked. He saw a white Honda pull up and heard someone inside the car say in Spanish, "Come here." According to Flores, Townley does not speak Spanish. Lazaro thought the request was addressed to someone else, so he kept walking.
Townley, Carranco, and Rocha got out of the car quickly. Carranco grabbed the bat in the car. Flores did not see anyone but Townley with a gun that night. There was no discussion about the gun as they got out of the car. The three crossed the...
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