People v. Cornejo
| Citation | 243 Cal.App.4th 1453,16 Cal. Daily Op. Serv. 737,2016 Daily Journal D.A.R. 635,197 Cal.Rptr.3d 686 |
| Decision Date | 20 January 2016 |
| Docket Number | C072053 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Adam CORNEJO et al., Defendants and Appellants. |
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant Adam Cornejo; Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Cornejo; Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant Isaac Vasquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
Deandre Ellison was shot to death as he pulled into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also in Ellison's car. Before the car came to a stop in the driveway, an SUV driven by Jesse Cornejo slowly drove past Ellison's house; the SUV's front and backseat passengers, Adam Cornejo and Isaac Vasquez, opened fire on Ellison's car.1 Neal managed to return fire with Ellison's gun before the SUV drove away. About 20 bullets were exchanged between the vehicles. Bullets also struck Ellison's house. Ellison was the only casualty. After crashing the SUV while being pursued by law enforcement, Adam, Jesse, and Isaac were taken into custody a short time later. Each was a Norteño gang member. Isaac was 16 years old with a developmental disability; Adam and Jesse were 17 and 18 years old, respectively.
Adam, Jesse, and Isaac were tried together and convicted by jury of one count of second-degree murder (Pen.Code, § 187, Count One),2 four counts of attempted murder (§§ 664/187, Counts Two, Three, Four, and Five), and one count of shooting at an inhabited dwelling (§ 246, Count Six). Jesse was also convicted of one count of driving in willful or wanton disregard for safety while fleeing from a pursuing peace officer. (Veh.Code, § 2800.2, subd. (a), Count Seven.) With respect to the murder, the jury found the offense was committed by means of shooting a firearm from a motor vehicle at another person outside the vehicle with the intent to inflict great bodily injury. (§ 190, subd. (d).) The jury also found the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b).) Various firearm enhancement allegations were also found to be true. (§§ 12022.53, subds. (c), (d), (e)(1), 12022.5, subd. (a).) The trial court sentenced Adam and Isaac to serve an aggregate indeterminate prison term of 120 years to life plus a consecutive determinate term of 9 years 4 months. Jesse was sentenced to serve the same indeterminate term of 120 years to life plus a consecutive determinate term of 10 years.
Defendants appeal. The following contentions are made by each defendant: (1) the evidence was insufficient to establish the “criminal street gang” requirement of the gang enhancements because there is no evidence Sacramento Norteño subsets are part of the larger Norteño organization; (2) the trial court prejudicially erred and violated defendants' constitutional right of confrontation by admitting expert gang testimony concerning the basis for the expert's conclusions they were active Norteño gang members; (3) the trial court prejudicially erred by allowing expert testimony that defendants probably fired first because Ellison would not have wanted to attract trouble to his home; (4) the trial court prejudicially erred and violated defendants' constitutional right to due process by excluding evidence they claim indicated Ellison had returned to a gang lifestyle, which they argue was critical to their self-defense claim; (5) the trial court prejudicially erred and further violated defendants' constitutional rights by providing the jury with a different instruction on causation than that contained in bracketed portions of CALCRIM No. 520; and (6) their respective abstracts of judgment must be modified to reflect the victim restitution order is a joint and several obligation. Adam and Isaac also assert: (7) the trial court's imposition of a sentence that is the functional equivalent of life without parole (LWOP) amounts to cruel and unusual punishment. Finally, Isaac contends: (8) the trial court prejudicially erred and violated his constitutional rights by allowing one of the detectives in the case to convey a misleading portion of Isaac's statement to police; and (9) the cumulative effect of the foregoing assertions of error requires reversal.
Following oral argument, our Supreme Court decided People v. Prunty (2015) 62 Cal.4th 59, 192 Cal.Rptr.3d 309, 355 P.3d 480 (Prunty ), which squarely addresses the first contention listed above. We requested supplemental briefing on the new case. Having reviewed this briefing, we conclude Prunty requires reversal of the gang enhancement findings (§ 186.22, subd. (b)) as to all defendants. Also, because each defendant was found to qualify for vicarious firearm enhancements under section 12022.53, subdivision (e)(1), which requires violation of section 186.22, subdivision (b), as an element of that enhancement, we must reverse these vicarious firearm enhancements as to all defendants as well.
We disagree with the remaining contentions raised by all defendants, except for the conceded point that their respective abstracts of judgment should reflect the victim restitution order is a joint and several obligation. Specifically, the challenged expert “basis” evidence did not violate defendants' constitutional right of confrontation. Nor did the trial court err by allowing expert testimony that defendants probably fired first because Ellison would not have wanted to attract trouble to his home. Defendants' contention that the trial court prejudicially erred and violated their constitutional right to due process by excluding evidence of Ellison's return to an active gang lifestyle is forfeited. Nor were their respective counsel ineffective for failing to preserve the issue for review. We also reject defendants' claim the trial court prejudicially erred and violated their constitutional rights by providing the jury with a different instruction on causation than that contained in a bracketed portion of CALCRIM No. 520. While the instruction provided was erroneous in two respects, the error was harmless.
We do, however, agree with the Eighth Amendment challenge brought by both Adam and Isaac. The record is unclear as to whether the trial court properly took into consideration all mitigating circumstances attendant in each juvenile offender's life, including but not limited to his chronological age at the time of the crime and his physical and mental development, before imposing a functionally equivalent LWOP sentence. In light of the importance of this constitutional right, and uncertainty as to whether the trial court appropriately took such mitigating circumstances into account, we conclude the appropriate remedy is to remand for a new sentencing hearing as to Adam and Isaac. Finally, the remaining claims brought by Isaac alone also fail. The trial court did not prejudicially err or violate his constitutional rights by allowing one of the detectives to convey a portion of his statement to police. Nor does the cumulative effect of the foregoing assertions of error require reversal.
Accordingly, with respect to Adam and Isaac, we reverse the gang enhancement and vicarious firearm enhancement findings, otherwise affirm their convictions and enhancement findings, and remand the matter to the trial court for resentencing; following the new sentencing hearing, their respective abstracts of judgment shall reflect that any victim restitution order imposed by the trial court is a joint and several obligation. With respect to Jesse, we reverse the gang enhancement and vicarious firearm enhancement findings, modify the judgment to strike these enhancements, and affirm the modified judgment. The trial court is directed to amend Jesse's abstract of judgment to reflect the modifications and to indicate the victim restitution order already imposed is a joint and several obligation.
On the afternoon of January 19, 2011, Ellison left his home to go to the store.
He drove his wife's Ford Taurus and brought along three other men, including Neal, who sat in the back of the car directly behind Ellison. On the way to the store, Ellison picked up another man, who was walking to Ellison's house, and then continued on to the store. Ellison, a former gang member, had a .40–caliber handgun in the car's center console. According to his wife, he bought the gun for protection. Having recently testified against another gang member in exchange for being released from jail, Ellison had received threats and was concerned about retaliation for being a “snitch.” Neal was aware of the threats. He was also aware Ellison had a gun in the center console.
When Ellison and his companions returned from the store, they turned onto Ellison's street and noticed two vehicles approaching from the opposite direction. The first vehicle was a small car. The second vehicle was a Ford Explorer containing the defendants in this case. In order to pull into his driveway, which was on the left side of the street, Ellison turned between the two vehicles. Around this time, Neal noticed the occupants of the Explorer were giving them “hard looks” and said: “[W]ho is them muggin' us?” Before Ellison was able to put the car in park, Neal opened his door and started to step out to “figure out who was in them cars.” As he did so, the Explorer stopped in front of Ellison's house and the front and backseat passengers, Adam and Isaac, opened fire with semi-automatic handguns.
Neal managed to “jump...
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