People v. Cruz

• Decision Date: 06 February 2012
• Docket Number: G045010,Super. Ct. No. 08CF0919
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ALFREDO CRUZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ALFREDO CRUZ, Defendant and Appellant.

G045010

Super. Ct. No. 08CF0919

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Filed: February 6, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted defendant Alfredo Cruz of second degree murder. The trial court sentenced defendant to 15 years to life in prison. We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts and procedural history of the case. Counsel did not argue against his client, but, pursuant to People v. Wende (1979) 25 Cal.3d 436, advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from defendant. We therefore examine the entire record on our own, and, in doing so, provide a brief description of the procedural history of the case, the facts as established by evidence at trial, and the punishment imposed upon defendant. (See People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

PROCEDURAL HISTORY

A felony complaint charging defendant, Edgar Calvillo, and Santos Julian Escamilla with murder was filed on March 24, 2008. Defendant pleaded not guilty. At the conclusion of defendant's preliminary hearing on September 5, 2008, the court ruled: "It appearing to the Court that a felony has been committed and there being sufficient and probable cause to believe that the Defendant committed said felony, Defendant is hereby ordered HELD TO ANSWER . . . as to count[] 1."

An information accusing defendant, Calvillo, and Escamilla with murder was filed on September 10, 2008. An amended information was filed on August 27, 2010. On multiple occasions, defendant waived his rights with regard to the timeliness of his arraignment and trial. The operative information, with regard to Escamilla (but not defendant or Calvillo), included additional counts accusing Escamilla of voluntary manslaughter and aggravated assault. The operative information also alleged a special circumstance with regard to Calvillo, murder by drive-by shooting (Pen. Code, § 190.2,subd. (a)(21)), as well as firearm enhancements pertaining to Calvillo and Escamilla (but not defendant).

Defendant's jury trial commenced on December 9, 2010. Calvillo was tried separately, this court affirmed his conviction of first degree murder (he was sentenced to 40 years to life) in People v. Calvillo (Mar. 25, 2011, G043333) [nonpub.opn.]. The record is silent with regard to the fate of Escamilla.

The prosecutor's opening statement described his theory of the case: "And the evidence is going to prove to you beyond any reasonable doubt that for the stupidest of reasons, this man committed murder. He didn't pull the trigger. . . . The evidence will show he is the one that knew where the victim lived. He is the one that drove them. He was the one that was driving at the time of the drive-by shooting . . . ."

Defense counsel countered in his opening statement that Calvillo shot the victim "on his own initiative . . . with no request by [defendant], who was driving away . . . ." Calvillo's conduct "was not expected, was not planned, was not foreseeable and, in fact, was contrary to the very words that . . . Calvillo told [defendant]. Nobody is going to get shot. We're not here to shoot." "As you heard, the facts are really not that much in dispute."

As reflected in the jury instructions, the prosecutor pursued alternative theories of liability: (1) aiding and abetting murder; (2) aiding and abetting the target offense of assault with a firearm, thereby leading to the natural and probable consequence of murder; and (3) conspiracy. Defendant sought a unanimity instruction pursuant to CALCRIM No. 3500, but the prosecution opposed such instruction and the court denied defendant's request. Both parties agreed that the court should not provide an accomplice testimony instruction with regard to Calvillo's statements, because it would be too confusing to the jury in light of testimony by Calvillo that was helpful in some ways to defendant.

The jury found defendant not guilty of first degree murder but guilty of second degree murder. Defendant moved for a new trial pursuant to Penal Code section 1181, claiming the court committed error by refusing to provide a unanimity instruction. The court denied the motion: "I think that counsel is confusing preliminary acts with final acts." The court noted that even if it had committed error, such error was not prejudicial: "[T]his is a minor technical point at best . . . ."

The court, applying California Rules of Court, rule 4.414, found probation to be inappropriate under the facts of the case. And after rejecting an argument that such a sentence would constitute cruel and unusual punishment under People v. Dillon (1983) 34 Cal.3d 441, the court sentenced defendant to 15 years to life in prison pursuant to Penal Code section 190, subdivision (a).

FACTS

Testimony of Margarita Rosas

Margarita Rosas introduced her cousin, Jackie, to defendant. Defendant and Jackie dated. Margarita Rosas also introduced Jackie to the murder victim in this case, Luis Rivera. Prior to the death of Rivera, defendant asked Margarita whether Rivera and Jackie were dating. Margarita replied that they were not. Defendant "was upset" when he asked his question.

Statements of Edgar Calvillo

The parties stipulated that a transcript of a police interview with Edgar Calvillo could be admitted into evidence and relied on by the jury as if Calvillo had testified in court.

There was a preexisting dispute between defendant and three brothers involving a female and allegations over someone popping someone else's tires. Calvillowas told that defendant and defendant's family had been threatened by the three brothers. Defendant drove to Lake Forest, California with Escamilla and Calvillo in a black Pontiac automobile. Escamillo and Calvillo were close friends; defendant was a friend of Escamilla. Calvillo took a gun with him, but his "intentions weren't to shoot him" but rather to "scare him." Defendant asked Calvillo why he was going to take the gun. Calvillo responded: "'Don't worry about it, I'm not going to shoot anybody.'"

When they arrived at their destination, defendant pointed out an individual (i.e., the victim) to Calvillo as one of the brothers. After engaging in a yelling match, Escamilla and the victim got into a fistfight; Escamilla threw the first punch. Defendant was standing next to the car. Calvillo stood and watched the short (10 seconds) fight. After the short fight ended, the victim's verbal taunts led Calvillo to retrieve his gun and point the gun at the victim's neck.

As defendant was driving away, the victim began yelling at the car. Calvillo became angry. Calvillo shot four times at the victim. When he left, Calvillo did not know if he hit the victim or not. Defendant asked, "'Why'd you shoot him?'" Calvillo responded, "'I didn't think I got him.'" Defendant was scared.

Testimony of Luis Aceves

Luis Aceves lives in Lake Forest, California, next door to the home of victim Luis Rivera. On the evening of March 20, 2008, Aceves and his family were preparing to leave on vacation. Aceves, standing outside, noticed a black, four-door Pontiac automobile in front of his house. Aceves observed two individuals in the front seat smoking cigarettes; he could not see into the back seat because the car had tinted windows.

Aceves then saw Rivera arrive home. Rivera parked in his driveway. Aceves and Rivera talked to one another. Three males stepped out of the black Pontiac automobile and approached Rivera. The individual who stepped out of the backseatcarried a rifle. The armed individual said to Rivera, "'I heard you been talking shit, motherfucker.'" He pointed his rifle at Rivera's face. The driver of the black Pontiac automobile told Aceves to mind his own business, and engaged in an exchange of pushes or shoves with Aceves to keep him away from Rivera. The front seat passenger "swung at" Rivera. All three passengers "tried to rush" Rivera, but Rivera succeeded in warding them off due to his superior size and fighting ability. There is no indication from Aceves's testimony that the driver made any physical contact with Rivera. A tense verbal exchange continued throughout the confrontation.

Aceves's father, who was waiting in his car for Aceves, approached and began yelling at the three attackers. The three attackers began retreating to their car. The armed individual told the driver, "Freddie, let's go. Fuck these pussies. They are not going to do shit." The driver entered the car first. The car started and the engine was revving loudly. Rivera was calling someone on his phone. As the car started moving, the back window came down and the barrel of the rifle was pointed out of the window. Aceves heard three gunshots. The car never stopped; it drove "fast down the street." Rivera yelled and ran; Aceves could tell Rivera had been hit by "the way he was yelling." Aceves picked up Rivera's cell phone; the 911 dispatcher had called Rivera's phone to return the call Rivera had been trying to make when he was killed.

Stipulations

The parties stipulated: (1) a cigarette butt recovered at the scene of the crime had defendant's DNA on it; and (2) a rifle, which was admitted...