People v. Cervantes

• Decision Date: 29 April 2004
• Docket Number: No. B150919.,B150919.
• Citation: People v. Cervantes, 118 Cal. App. 4th 162, 12 Cal. Rptr. 3d 774 (Cal. App. 2004)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ubaldo CERVANTES et al., Defendants and Appellants.

12 Cal.Rptr.3d 774

118 Cal.App.4th 162

The PEOPLE, Plaintiff and Respondent, v. Ubaldo CERVANTES et al., Defendants and Appellants.

No. B150919.

Court of Appeal, Second District, Division 3.

April 29, 2004.

Certified for Partial Publication.^*

Review Denied August 11, 2004.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Ubaldo Cervantes.

Mark D. Lenenberg, under appointment by the Court of Appeal, Simi Valley; Marilee Marshall & Associates, Marilee Marshall, Pasadena, for Defendant and Appellant Jose Martinez.

Law Offices of Andrew Levy and Andrew Levy, under appointment by the

Court of Appeal, Pasadena, for Defendant and Appellant Cesar R. Morales.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.

KLEIN, P.J.

Ubaldo Cervantes, Jose Martinez and Cesar Morales appeal the judgments entered after conviction by jury of first-degree murder and attempted willful, deliberate and premeditated murder. (Pen.Code, §§ 187, 664/187.)¹ The jury that tried Morales and Cervantes, as well as the jury that tried Martinez, found the offenses had been committed for the benefit of a criminal street gang and that a principal personally discharged a firearm causing death as to the murder count, and a principal personally discharged a firearm causing great bodily injury as to the attempted murder count. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The jury that tried Martinez found he personally discharged a firearm in the commission of both counts. (§ 12022.53, subd. (c).) The trial court sentenced Martinez to a term of 84 years to life in state prison and sentenced Cervantes and Morales to terms of 80 years to life in state prison.

In the published portion of the opinion, we reject the claim that evidence of a statement made by Morales to his neighbor regarding the underlying incident should not have been presented at trial as against nondeclarants Cervantes and Martinez. In the unpublished portion of the opinion, we reject various other claims but modify the judgment as to Martinez to strike a two-year enhancement imposed as to count II and modify the judgment as to Cervantes to reflect a term of life with the possibility of parole in count II. In all other respects, the judgments are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution's evidence.

a. The offenses.

On January 2, 1999, at approximately 2:30 a.m., Schundra Estrada heard a car engine outside her residence on Loosmore Street in the Cypress Park area of Los Angeles. Estrada then heard footsteps of more than one person leaving the car, followed by approximately eight gunshots from around the corner on Pleasant View Avenue. Estrada next heard footsteps running to the car, car doors closing and more than one voice saying, "go, go, go, go." Estrada looked outside and saw a white Honda leave the scene. Estrada's boyfriend was on the telephone with the 911 operator as the Honda departed.

Police officers found Joey Valentino lying in a pool of blood on Pleasant View Avenue. Gustavo Alvarado was a few feet away. Both had been beaten about the face and shot in the head at a downward trajectory. Alvarado additionally had been shot in the back. One of Valentino's teeth had been knocked from his mouth. Valentino died as a result of the gunshot wound to the head. Alvarado lost an eye and remains paralyzed below the chest. Valentino and Alvarado were students at the time of the shooting, did not belong to a gang or carry weapons and Valentino was in the Army reserve.

Shortly after the shooting, Los Angeles police officers followed a white Honda that refused to yield. Two males ran from the passenger side of the Honda toward a California Department of Transportation (Caltrans) yard and evaded the officers. The driver, Juan Naranjo, remained seated in the Honda and was apprehended.² Martinez fled from the driver's side of the Honda. Shortly before the officers caught Martinez, he discarded a Glock 9 mm handgun. Martinez wore dark blue knit gloves and had a 30-round magazine clip for the Glock.

In a search of the Cal-Trans yard, officers found a TEC-9 handgun, a loaded magazine for that weapon, a .357 magnum handgun and a latex glove. Two blue gloves were found at the entrance of the yard. A blue knit cap and another pair of dark gloves were found near the yard.

A Luger cartridge was found in the Honda. Cervantes's fingerprints were on the inside of the front passenger window of the Honda, which was registered to Morales. A hair fragment found on one of the knit caps shared 10 to 12 similarities, out of a possible 15, with Cervantes's hair. A blood stain on the razor wire on top of the fence around the Cal-Trans yard contained Morales's DNA.

Seven expended shell casings were found at the scene of the attack and five additional casings were found across the street. A criminalist testified the Glock had fired 10 of the 12 casings. The 11th casing could have been fired by the Glock but was not fired by the TEC-9. The 12th casing could have been fired from the TEC-9 but was not fired by the Glock.

b. Statements by the defendants.

(1) Morales's statement to Dolores Ojeda.

On January 2, 1999, at about 9:30 p.m., Dolores Ojeda, who worked as a surgical medical assistant, went across the street to the home of Morales. Ojeda had known Morales for approximately 12 years. Ojeda also knew Cervantes, Martinez and Naranjo. Ojeda's daughter dated Martinez for approximately 18 months. Ojeda spoke to Morales on the front porch of the residence. Morales had slashes and cuts on his hands which were swollen.

Morales told Ojeda he received the cuts "jumping fences." Morales said he had gone to a party the previous night in Cypress Park with Cervantes, Martinez and Naranjo to look for some males who had made advances toward Morales's girlfriend. Naranjo drove and stopped when they saw two males. Morales, Martinez and Cervantes questioned the two males about where they were from and asked them about a "girlfriend." The two males were held at gunpoint on their knees and said they did not know what Morales was talking about. Morales struck one of the males with his handgun and told Martinez to search the males for weapons. Martinez did not find a weapon but Morales said one of the males had a weapon. Morales shot one male because his "friend was lying." When the second male ran, Morales and Cervantes shot him. Morales, Cervantes and Martinez returned to the Honda and told Naranjo nothing had happened. Morales ran from the car after they were followed by the police and jumped a fence near a freeway. Morales also told Ojeda he thought the two males were the "wrong guys." Morales expressed fear he might lose his job as a security guard.

Ojeda telephoned the police on January 7, 1999, and reported what Morales had said to her. Ojeda knew Morales, Cervantes and Martinez were admitted gang members. Ojeda was afraid to testify in this case.

(2) Martinez's statement to Detective Teague.

On January 4, 1999, Martinez waived his rights per Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and gave Los Angeles Police Detective Andrew Teague a statement that Teague reduced to writing and Martinez signed. Only the jury that tried Martinez heard evidence of this statement. Martinez told Teague he had been a gang member for about one year. Martinez finished work at approximately 1:00 a.m. on January 2, 1999, and went driving with Morales and Cervantes into the territory of another gang in Cypress Park. Morales had a Glock handgun in his waistband and produced a TEC-9 from under the driver's seat and gave it to Martinez. Cervantes had a .357 revolver. As they exited the freeway, Morales said they were "going to get some fools from Cypress" and that it was "personal." Morales drove directly to the scene of the assault and said, "They will be there. They always kick it there." When they stopped, Morales exited the car and told Naranjo to drive. Morales, Cervantes and Martinez, armed with the Glock, the .357 and the TEC-9, respectively, crossed the street and waited until they saw three males exit a car, which then drove off. One of the males entered a house. Morales and Cervantes crept toward the two remaining males while Martinez acted as a lookout. Morales confronted the males and questioned them about a female. One of the males denied involvement with the female. Morales struck the two males. Martinez heard gunshots and, when Morales and Cervantes retreated to Martinez's location, Martinez fired three or four rounds into the air to dissuade anyone from chasing them. In the Honda, Morales traded guns with Martinez.

Teague testified as an expert on gangs that appellants drove "to the heart of a ... rival's territory," armed with a "high-powered weapons." These facts combined with Morales's statement they were going to "get some fools," in Teague's opinion, meant "they are going to shoot somebody. And when you shoot somebody in a gang, you ... are shooting to kill."

c. Other evidence.

When he was arrested on January 4, 1999, Morales had two lacerations on the palm of his right hand and the knuckles of his left hand were swollen and bruised. That same day, Officer Jose Carrillo observed a long cut across Cervantes's chest and several small cuts on his arms.

In June 1998, Morales told Los Angeles Police Officer Jose Vasques that he used a 9 mm Glock handgun in his work as a security guard.

Ana Barraza testified that at the time of the shooting, she was dating Morales and that she had been threatened by the father of her child, Adrian Flores, a member of a Cypress Park gang. Approximately five months after the shooting in this case, Flores abducted Barraza from a residence on Pleasant View Avenue.

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