People v. Corona

• Decision Date: 17 August 2020
• Docket Number: B297528
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CORONA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CORONA, Defendant and Appellant.

B297528

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

August 17, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA143941)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed.

Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and David W. Williams, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Francisco Corona of second degree murder (Pen. Code, § 187, subd. (a))¹ for killing Joseph Barela. The jury also found true the allegation Corona personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Corona argues that the trial court should have instructed the jury on voluntary manslaughter because there was substantial evidence he killed Barela in the heat of passion and that his trial counsel was ineffective in failing to ask the court to sanitize, or give an instruction limiting the use of, certain gang evidence. Finally, Corona argues the court erred in ordering him to pay 10 percent interest on his deposit in the Restitution Fund, which is administered by the Victim Compensation Board, because the Board is not a "victim" within the meaning of section 1202.4, subdivision (k).

We conclude the trial court did not err in failing to instruct on voluntary manslaughter because substantial evidence did not support such an instruction. We also conclude Corona did not receive ineffective assistance of counsel because his trial attorney had a rational tactical reason for not asking the court to sanitize the gang evidence or give a limiting instruction and because Corona cannot show prejudice. Finally, we conclude section 1202.4 required the trial court to order Corona to pay interest on the entire amount of the restitution award, including his deposit to the Board. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Corona "Taxes" Barela's Girlfriend

Corona was a member of the Bell Gardens Locos criminal street gang. His gang moniker was "Flaco," and he had a Bell Gardens Locos tattoo on his face. Barela was a former member of the North Hollywood Boys criminal street gang. He was "involved in drugs," had "money problems," and had many enemies. According to one of his friends, Barela was often running from people and "lived his life watching his back." Barela's girlfriend, Laura Rice, used to live with Corona.

In May or June 2016 Rice was selling drugs in territory claimed by Bell Gardens Locos. Corona came to "tax" Rice, which a Bell Gardens police detective explained occurs when "someone is conducting business in the area that [gangs] claim as their territory." Corona collected the tax by taking Rice's cell phone and some drugs worth $10 or $20. Rice told Barela what happened.

B. Barela Confronts Corona

Soon after Barela learned Corona had taken Rice's cellphone and drugs, he confronted Corona. Barela's brother-in-law Maxwell Huerta, who had known Corona for several years and had also been taxed by him, witnessed the argument. According to Huerta, Barela and Corona argued and called each other names, and Corona pulled out a knife. Huerta saw that Barela also had a sharp object in his hand, which may have been a knife, and that both men "were up to stabbing each other." Huerta said that, until he intervened, Barela "did not want to get away" from Corona and "didn't want to stop messing with him."Barela and Corona eventually calmed down, and Huerta later told police he believed the two men at that point were "cool" with each other. Rice, however, testified "it was all bad" after that incident.

Corona later told Rice he "didn't want to pop his cherry on Joey," which she understood meant Corona did not want Barela to be his first "kill." In late June or early July, several days before the shooting, Corona and Barela saw each other again. Although Rice was not there, she said the encounter left Barela upset.

C. Corona Kills Barela

On July 4, 2016, approximately one month after Huerta witnessed the argument between Barela and Corona, Barela visited Huerta in a tent by a riverbed near Bell Gardens where Huerta lived. The tent was at the bottom of steps that led up to the top of the riverbed.

Huerta gave two versions of the incident that day involving Corona and Barela. In a videotaped police interview in September 2016, a few months after Barela was killed, Huerta said that at approximately 5:00 p.m. or 6:00 p.m. he heard the sounds of an argument coming from the top of the riverbed. Huerta went up the steps to investigate and saw Corona and Barela about 120 feet away from him. Huerta initially thought "everything was cool," but then he heard Barela call Corona "a bitch" and yell, "You gonna take me out, fuckin' take me out." Huerta saw Corona had a gun. Huerta continued to walk forward until he was 15 feet away from the two men. Huerta said Corona looked at him, looked at Barela, and shot Barela in the side. Barela fell to the ground and began screaming, asCorona was holding the gun and "looking at [Huerta] in [his] eyes." Before getting on Barela's bicycle and fleeing, Corona said to Huerta, "You better not say nothing."

In another interview and at trial, however, Huerta said that, while he was in his tent, he heard what he thought were fireworks, turned around, saw Barela, and ran up the steps. When he got to the top, he saw that what he believed were fireworks was actually a gunshot and that Barela was down on the ground screaming. Huerta said he saw a person with a gun in his hand whom he described as tall, skinny, and wearing "something black," like a mask. The shooter, whom Huerta said he could not identify, ran to a car and drove away.

An autopsy concluded Barela had been shot from an indeterminate range. The cause of death was a single gunshot wound from a bullet that entered the left side of Barela's body and exited his back, injuring several organs and his aorta.

The police did not find any forensic evidence, such as fingerprints or DNA, connecting Corona to the shooting. Corona denied he killed Barela, claiming his friend "Smash" did it. Corona acknowledged his prior confrontations with Barela, but claimed he had been in Huntington Park with two friends, Maria Gonzalez and Jose Lopez, at the time of the shooting. Investigators were unable to find either individual.

D. The Jury Convicts Corona of Murder

The jury found Corona guilty of second degree murder and found true the firearm allegation. The trial court sentenced Corona on the murder conviction to a prison term of 15 years to life, plus 25 years to life for the firearm enhancement. The trial court ordered Corona to pay a relative of Barela restitution in theamount of $1,359.85, plus 10 percent interest from the date of sentencing, and to deposit $7,500, plus 10% interest from the date of sentencing, in the Restitution Fund to reimburse the Board for assistance to Barela's family. Corona timely appealed.

DISCUSSION

A. The Trial Court Did Not Err in Failing To Instruct on the Heat of Passion Form of Voluntary Manslaughter

1. Applicable Law and Standard of Review

"'"[I]t is the 'court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.'"' [Citations.] 'Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense.'" (People v. Westerfield (2019) 6 Cal.5th 632, 718.) "A trial court must instruct a jury on lesser included offenses when the evidence raises questions regarding whether every element of a charged offense is present. [Citation.] No instruction on lesser included offenses is required if there is no evidence that there was any offense less than that charged. Instructing the jury on a lesser included offense is not required when the evidence supporting such an instruction is weak, but '"'whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury,'"' such an instruction is required. [Citation.] Whether the evidence is substantial is tested by considering whether a jury would conclude the lesser but not the greater offense was committed." (People v. Vargas (2020) 9 Cal.5th 793, 827.) "[W]ereview independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.)

"'Murder is the unlawful killing of a human being . . . with malice aforethought.'" (People v. Nelson (2016) 1 Cal.5th 513, 538.) "Voluntary manslaughter, a lesser included offense of murder, is defined as the unlawful killing of a human being without malice. [Citations.] Manslaughter instructions are warranted when substantial evidence exists to support a jury's determination that the killing was committed in the heat of passion and thus does not constitute a first degree murder." (People v. Vargas, supra, 9 Cal.5th at p. 827; see People v. Smith (2018) 4 Cal.5th 1134, 1163.)

"'Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter.' [Citation.] Heat of passion killing is distinct from malice murder because thought in some form...