People v. Chacon
| Decision Date | 21 October 2016 |
| Docket Number | F069786 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHACON, Defendant and Appellant. |
It is ordered that the opinion filed herein on October 21, 2016, be modified as follows:
1. The first paragraph at the top of page 48, the sentence beginning "We cannot say" is modified to read as follows:
We cannot say, on the record before us, that any such objection would have been futile, particularly in light of the discussion of the Sixth Amendment issue in People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1137, and the California Supreme Court's grant of review, prior to defendant's trial, in People v. Sanchez (2014) formerly 223 Cal.App.4th 1, review granted May 14, 2014, S216681.
There is no change in the judgment.
Appellant's petition for rehearing is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo- Anthony Chacon (defendant) was charged by amended information with premeditated murder, committed by discharging a firearm from a motor vehicle at another person with intent to inflict death, and committed while defendant was an active participant in a criminal street gang and to further the activities of the gang; and during commission of which defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death, and intentionally inflicted great bodily injury or death as a result of discharging a firearm from a motor vehicle (Pen. Code,1 §§ 187, subd. (a), 189, 190.2, subd. (a)(21), (22), 12022.53, subd. (d), 12022.55; count 1), premeditated attempted murder, committed by discharging a firearm from a motor vehicle at another person with intent to inflict death; and during the commission of which defendant personally and intentionally discharged a firearm (§§ 187, subd. (a), 189, 664, 12022.53, subd. (c); count 2), discharge of a firearm at an inhabited dwelling (§ 246; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). As to counts 1 through 3, it was further alleged the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and, as to all counts, that defendant served a prior prison term (§ 667.5, subd. (b)).
A jury convicted defendant of counts 1 through 3, but acquitted him of count 4 and found not true the allegations, with respect to counts 1 and 2, that the crime was premeditated. The jury found true all remaining special allegations on counts 1 through 3. After return of the verdicts, the prior prison term allegations were dismissed. Defendant's motion for a new trial was denied, and he was sentenced to prison for an aggregate term of life without the possibility of parole plus 40 years to life plus 20 years.
On appeal, we hold: (1) The trial court did not err by refusing to sever/bifurcate the gang allegations; (2) The trial court's determination the People's proffered gangexpert qualified to testify as an expert witness was within its discretion; (3) The evidence was sufficient to sustain the jury's true findings on the gang allegations and gang-murder special circumstance; (4) Any error in the admission of evidence concerning one victim's standing in a gang was harmless; (5) The trial court did not err by instructing on flight; and (6) Defendant's trial was not rendered fundamentally unfair by the cumulative effect of errors; but (7) Defendant must be resentenced on count 2. Accordingly, we remand for resentencing on that count, but otherwise affirm.
A three-unit apartment complex stands on the northwest corner of Virginia Avenue and South Robinson, in Bakersfield. The units face east toward Robinson. There is a stop sign on Robinson at Virginia. The parking lot for the complex is at the north end of the complex, and is separated from the units' front lawn by a chain-link fence with a gate. A cement walkway leads from each of the three front doors to the sidewalk and curb running along Robinson, but the chain-link fence surrounds the yard so there is no curb access.
As of April 30, 2012, Jeffery Littlejohn, Anna Moreno, and Aaron Nash resided in apartment A, the first unit nearest the corner of Virginia and Robinson.2 Also residing there were Katie Wimberly, her boyfriend Lynn Harris, her two-year-old daughter Ka-Mya, and her four other children.
That day, Ricardo Rivera and his friend, Raymond "Caveman" Velasquez, a Hispanic man who lived in the neighborhood, decided to walk to the store. Velasquez was wearing a black shirt Rivera had loaned him. They walked south on Robinson,intending to turn west on Virginia. As they reached the northernmost edge of the apartment complex's parking lot, Rivera saw a dark blue SUV (sports utility vehicle) that could have been a Tahoe or Yukon. The SUV, which was facing south, was parked at a pink house just north of Murdoch, the first street to intersect Robinson north of Virginia. Two men, who appeared to be Hispanic, were outside the SUV. They were staring in the direction of Rivera and Velasquez.
Rivera and Velasquez ignored the men and continued on toward the store. Near the corner of Virginia and Robinson, Velasquez stopped outside the fence to talk to a Black man he knew. Rivera was also on the sidewalk outside the fence, but about 10 feet north of Velasquez.
The conversation lasted five to 10 minutes, whereupon the SUV pulled up. As it was pulling up, Rivera saw the driver and someone in the front passenger seat. He could not see into the back seat, because the windows were tinted. The front windows were rolled down, however.
The SUV stopped with the passenger window next to Velasquez. Someone in the SUV asked, "hey, you guys trippin'?" Rivera did not know who said it. Rivera and Velasquez were shocked, because the phrase essentially asked whether one group was having problems with the other, and it often was associated with some kind of fight or threat. Rivera heard Velasquez talking with those in the SUV, but the exchange did not sound angry, and he heard no gang slogans. About two or three minutes after the SUV pulled up, however, Rivera saw the passenger's hand sticking out of the car. The passenger was holding a gun that appeared to be a semiautomatic. Shots were fired. Velasquez, who was seven or eight feet from the vehicle, was not hit, although the shirt Velasquez was wearing had a hole in it after the shooting that was not there when Riveraloaned him the garment.3 One of the bullets hit the curb or sidewalk, causing some of the cement to strike Rivera's leg. Rivera and Velasquez fled.
Sometime after the shooting, Rivera was shown a photographic lineup.4 He was unable to identify anyone in the SUV. At trial, he testified he did not see anyone in court whom he remembered being inside the vehicle. According to Moore, who interviewed Rivera, Rivera was reluctant to tell Moore everything he knew. Rivera told Moore he saw the right front passenger lean out of the SUV. Rivera described him as a Hispanic male, with facial hair and some hair on his head that was not too long or too short. He also said the shots came from the right front seat of the vehicle, and that he saw the gun.
Harris recalled all the children, including Ka-Mya, playing in front of the apartments when he walked outside to head for his car in the parking lot. Velasquez, whom Harris knew as Caveman, was on the sidewalk outside the fence. Harris did not see any other people outside the fence, but he did see a dark blue Navigator.
Harris was at the gate when shooting started. He turned around and saw what looked like fireworks bouncing off the ground, but they were bullets ricocheting. Someone was leaning out of the car with a gun in his hand. Although the windows in the Navigator were tinted, Harris was able to see the driver and front passenger — defendant — as the vehicle drove off southbound on Robinson after the shooting. Harris did not get a good look at the driver, who was Hispanic.
Ka-Mya was lying on the ground. Harris picked her up, put her in his car, and drove off. When he saw some sheriff's deputies, he gave her over to them. Ka-Mya subsequently died from a penetrating gunshot wound of the body. The bullet enteredKa-Mya's right chest, perforated a lung and her diaphragm, perforated one of her vertebrae, and lodged in the soft tissue of the left back.
Harris was interviewed by Moore approximately eight hours after the shooting. Harris gave Moore a description of a Hispanic male who could have been bald. The man was not wearing sunglasses and did not have any piercings. Harris did not know if the man had facial hair. Harris said he was able to get a good look at the shooter's face because the shooter leaned out of the vehicle from the right front seat. Moore showed Harris a photographic lineup sometime in May. When Moore asked if Harris could identify anyone, Harris wrote "not sure." At trial, Harris explained he did so because he did not want to have to go through this. Thinking of Ka-Mya changed his mind.5
Littlejohn recalled standing in the...
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