People v. Diaz
| Decision Date | 25 January 2013 |
| Docket Number | G046207 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RAMON DIAZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ramon Diaz, a minor, was convicted of a special circumstance gang-related murder and found to have personally discharged a firearm causing death or injury in the commission of the murder. He contends, inter alia, there is insufficient evidence of deliberation and premeditation, the court erred in instructing the jury, and the prosecutor committed misconduct. We affirm.
The information charged defendant Ramon Diaz and Oscar Hernandez1 with murder (Pen. Code,2 § 187, subd. (a); count one) and actively participating in a criminal street gang (§ 186.22, subd. (a); count two). The information further alleged the murder was committed for the benefit of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), defendant personally discharged a firearm causing injury or death (§ 12022.53, subd. (d)), Hernandez vicariously discharged a firearm (§ 12022.53, subds. (d), (e)(1)), and a gang-murder special circumstance (§ 190.2, subd. (a)(22)) in connection with the murder charge. A third count, voluntary manslaughter (§ 192, subd. (a)), was subsequently added by interlineation shortly before trial.
Saul R. got out of school on the afternoon of September 10, 2008, and was walking with his sister when he saw a friend of his, Rodrigo Valle, on the corner of Flower and Walnut Streets. Saul R. and Valle started talking, a crowd started to form, and Saul R.'s sister told him to get away from Valle. Saul R. saw defendant and another male wearing a baseball hat with a "B" on it approach Valle.
Defendant asked Valle where he was from. Valle did not answer. Saul R.'s cousin was there and started crying. Valle then responded, "Let's get down,"3 and"Krazy Proud Criminals" (KPC). Defendant said, "No," and pulled out a gun. Saul R. said Valle attempted to run, but was unable to as defendant shot Valle in the chest. Valle went to the ground and Saul R. heard three more shots. Then defendant and the male with the baseball hat ran. Saul R. stayed with Valle until the police and ambulance arrived.
Saul R. knew KPC is a gang and that Barrio Small Town is a rival gang. He also knew that asking "where are you from," is a "hit up" by a gang member. Saul R. had been hit up by defendant the week before defendant shot Valle. Defendant identified himself as "Bandit" from Small Town. Saul R. replied he did not "bang" and defendant let him go about his business.
Valle's sister was a student at the school. She said her brother met her at school that day to walk her home. She noticed her brother and defendant staring at each other. Then defendant and another male approached them. Valle took off his outer shirt. Defendant asked Valle where he was from. Valle said he was from KPC. Defendant then shot him four or five times and ran away. She said defendant advanced on her brother just prior to shooting him, and her brother backed up against a fence. Valle was "like almost leaning on the fence" when he was shot. She saw defendant was wearing a glove on his gun hand. Valle was unarmed and no blows had been exchanged or attempted.
Defendant's girlfriend at the time of the shooting testified. As she was leaving school that day, she saw defendant on the corner of Flower and Walnut Streets. She denied any memory of the shooting, but in the recorded statement she made to the police, she said she saw defendant cross the street and approach two males on the other side, asked one of the males where he was from, heard defendant laugh at the response, pull a gun out of his waistband and start shooting. She said she and defendant's cousin attempted to keep him from assaulting Valle, but he would not listen.
She also told police defendant had belonged to another gang and had the moniker "Panic." He then got jumped into Barrio Small Town and has the moniker "Bandit."
Defendant's cousin saw defendant approach Valle. She saw something in his hand, but thought it was a knife or a shank. She realized it was a gun after she heard three loud gunshots.
Ana N. was a classmate of defendant's at the school. She saw defendant remove a handgun from his waistband before the shooting and run away after the shooting.
Officer Michael Kuplast of the Santa Ana Police Department was dispatched to the location of the shooting. He saw a young male Hispanic on his back, bleeding from his upper torso. Kuplast tried speaking with him but Valle was unable to respond. Paramedics arrived shortly thereafter and transported Valle.
Kuplast found six .22-caliber shell casings in the area of the shooting. Another officer searched Valle at the scene. Valle was not armed.
Sergeant Charles Flynn took part in the investigation and contacted defendant. After being advised of his Miranda4 rights, defendant denied any awareness of the shooting. Defendant also denied membership in any gang. Flynn noticed defendant had an "S" tattooed on one arm and a "T" on the other. Flynn said the tattoos were a reference to the Barrio Small Town criminal street gang.
Dr. Anthony Juguilon performed the autopsy on Valle. Valle had been shot four times. One gunshot wound was to Valle's right upper back. The bullet pierced both lungs as well as the superior vena cava — the largest vein in the body — and the pulmonary vein. That bullet entered the pulmonary vein, went into the heart and then traveled through an artery, finally coming to rest in Valle's left femur area.
There was a gunshot wound to Valle's lower left back. That bullet entered the abdominal cavity, lacerating the small bowel. The bullet exited through the upper abdomen. A third gunshot wound was to the inside back of Valle's right forearm. The fourth gunshot wound was superficial. The bullet entered Valle's right wrist and exited through the top of his right hand.
Dr. Juguilon examined the body for stippling — unburned gunpowder found when a firearm is fired within approximately two feet — and did not find any. The doctor said the lack of stippling means the shots were fired from a distance of at least two feet.
Detective Julian Rodriguez is familiar with the criminal street gangs Krazy Proud Criminals and Barrio Small Town. He said the two gangs are rivals. He testified to the common signs or symbols used by Barrio Small Town, including their use of the letter B from sports teams like the Bruins or the Boston Red Sox. He also testified the gang's primary activities are assault with a firearm and possession of firearms, and to the gang's pattern of criminal activity. The detective said a "hit-up" consists of asking a person where he is from. He said the purpose may be twofold: either because the person hitting up the other does not know the person and he is in their territory, or the person doing the hit up has already determined to initiate a confrontation. The detective opined defendant was an active participant in the Barrio Small Town criminal street gang and that the shooting was for the benefit of and at the direction Barrio Small Town because an act of violence in broad daylight sends a message to the community about the gang, causing fear (or what the gang calls respect).
The jury found defendant guilty of first degree murder and actively participating in a criminal street gang. The jury also found all the special allegations, including the murder special circumstance, true. Although the special circumstance made defendant eligible for a sentence of life in prison without the possibility of parole (§ 190.5, subd. (b)), the court chose to impose a sentence of 25 years to life on the murderconviction as defendant was under 18 at the time of the offense. The court imposed a consecutive term of 25 years to life on the personal discharge of a firearm allegation for an aggregate term of 50 years to life. The court stayed the sentence on count two pursuant to section 654 and noted that pursuant to section 186.22, subdivision (b)(5), defendant cannot be considered eligible for parole until he has served at least 15 calendar years.
Defendant first contends the evidence does not support the jury finding he killed as a result of deliberation and premeditation, and the evidence supports only a charge of second degree murder. Murder is the unlawful killing of another with malice aforethought. (§ 187, subd. (a).) The crime is divided into degrees. (§ 189.) Murder is of the first degree when deliberate and premeditated. If the murder is not shown to be of the first degree, it is deemed to be second degree murder. (Ibid.)
(People v. Steele (2002) 27 Cal.4th 1230, 1249.) We must accept all assessments of credibility made by the trier of fact and determine if substantial evidence exists to support...
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