People v. Frausto, 031519 CAAPP6, H042253

Docket Nº:H042253
Opinion Judge:MIHARA, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LUCIO FRAUSTO, Defendant and Appellant.
Judge Panel:WE CONCUR: GREENWOOD, P. J., ELIA, J.
Case Date:March 15, 2019
Court:California Court of Appeals
 
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THE PEOPLE, Plaintiff and Respondent,

v.

MICHAEL LUCIO FRAUSTO, Defendant and Appellant.

H042253

California Court of Appeals, Sixth District

March 15, 2019

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C1071221

MIHARA, J.

Defendant Michael Lucio Frausto appeals from a judgment entered after a jury found him guilty of one count of first degree murder (Pen. Code, § 187 - count 1), 1 four counts of attempted murder (§§ 664, subd. (a), 187 - counts 2, 3, 4, & 5), and one count of shooting at an inhabited building (§ 246 - count 6). As to each count, the jury found that defendant personally discharged a firearm causing the death of a person who was not an accomplice (former § 12022.53, subd. (d)). The trial court sentenced defendant to a term of 25 years to life for count 1, life with the possibility of parole for counts 2 through 5, plus 25 years to life for each of the five firearm enhancements on counts 1 through 5. The trial court also imposed a determinate term of seven years for count 6 plus 25 years to life term for the firearm enhancement, which was to run concurrently to the other counts. Defendant's aggregate term was 178 years to life.

On appeal, defendant contends: (1) the trial court erred when it admitted expert testimony based on historical cell tower information; (2) trial counsel provided ineffective assistance by asking questions on cross-examination that opened the door to the admission of damaging evidence; (4) the trial court violated his right to confrontation when it allowed the prosecutor to ask leading questions to a witness who had refused to testify; (5) the trial court erred when it excluded evidence that other individuals had a motive to shoot one of the victims; (6) the case must be remanded to allow the trial court to exercise its discretion to strike some or all of the firearm enhancements; (7) he is entitled to remand for the purpose of making a record of the facts relevant to the youth offender parole hearing he will receive during his 25th year of incarceration; and (8) the abstract of judgment must be modified to indicate that the sentence on count 6 is concurrent. The judgment is reversed. The matter is remanded to allow the trial court: (1) to consider exercising its discretion to strike any firearm enhancements; (2) to allow defendant to the opportunity to make a record of information that will be relevant in a future parole eligibility hearing; and (3) to modify the abstract of judgment.

I. Statement of Facts

A. Prosecution Case

1. The Shooting

On January 23, 2010, Leonel Acosta, Ricardo Mendez, Andrew Sotelo, Santos Munoz, and Albert Cobarrubias were playing pool in Cobarrubias's garage on Chopin Avenue in San Jose. Shortly before 11:00 p.m., 2 a man walked up the driveway and fired at least six shots from a.38 caliber revolver into the open garage door. Cobarrubias was killed. Sotelo described the shooter as a Mexican man in his late 20's with dark “slicked back” hair and a mustache. The shooter was wearing a white T-shirt. After the shooting, the shooter entered the passenger side of a “boxy, ” white four-door sedan, possibly a mid-90's Toyota.

David Castaneda, Cobarrubias's brother, was in his bedroom when he heard the gunshots. He ran to the garage and saw his brother on the floor. Castaneda heard the sound of bad brakes, that is, “a real squeaky noise” as a car left the area. Castaneda's house is in the Meadow Fair neighborhood. According to Castaneda, Cobarrubias hung out with members of the Varrio Meadow Fair (VMF) gang.

Munoz was a member of the VMF gang. Munoz believed that he was the target of the shooting, because he “was having some issues with [his] baby's mom and her boyfriend. And rumors had came about that... he had come to kill [him].” Munoz also told the police that he had had a problem with some Sureno gang members and he thought that they might have been after him.

2. The Stutz Way Stabbings

On August 2, 2009, defendant, Raymond Frausto (Raymond), one of defendant's brothers, and Miguel Garcia went to Stutz Way where they were “partying with Meadow Fair girls.” At some point during the party, Priscilla Olivo was disrespected by a “light-skinned guy with four dots under his left eye.”3 Olivo called her boyfriend Steven Barajas to complain. When Barajas insulted defendant, Olivo relayed the insult to defendant. Defendant replied, “[F]uck your boyfriend.” Defendant, who had tattoos indicating membership in Eastbound Loco Mob (EBLM), believed that Barajas was a member of VMF. Shortly after the phone call, 10 to 15 members of VMF arrived at the house and attacked defendant, Raymond, and Garcia. The three men suffered life-threatening injuries from multiple stab wounds.

3. Luz Beltran and Joseph Tarango

Beltran and defendant had been friends since high school. On the night of the shooting, defendant asked Beltran if he could borrow her 1995 Toyota Camry. He told her that he needed to take his cousin home and he did not have gas in his car. Though she said no, he persisted and asked her over 20 times. She finally agreed to lend him her car so he would stop bothering her.

At about 10:00 p.m., defendant arrived at Beltran's house in his Cadillac and called her. She went outside and they exchanged keys. He left and returned about a half an hour to an hour later.4 While defendant was using her car, Beltran made several calls to his cell phone, but he did not answer. When defendant returned the car, he was alone and did not say where he had gone. However, he told Beltran that he did not pick up his cousin. Defendant called her later that night and told her to put air freshener in her car. She asked him why and he would not tell her. At one point in the conversation, he said, “[J]ust fucking do it.” Beltran called defendant several more times that night, but he ignored her calls.5

Later that same night, when Beltran picked up some friends in downtown San Jose, she saw defendant driving his Cadillac. Shortly thereafter, he called her and said, “What the fuck [are you] doing downtown... go home.” The following day, defendant told her that he needed to talk to her because he did “something dirty.” He told her that if the police contacted her, she was “[n]ot to talk to them, and tell them that [she] didn't know him.”

Joseph Tarango was Beltran's boyfriend at the time of the shooting. Tarango was a member of EBLM. According to Tarango, defendant left EBLM on bad terms in 2008 because he no longer wanted to be involved in violent confrontations with other gangs.

Tarango was in custody in county jail6 when he learned from Beltran that defendant had borrowed her car and returned it, and that the police had confiscated it a few days later. Tarango believed that defendant had violated the fourth bond of the Norteno “constitution, ” which prohibited a Norteno from taking advantage of another Norteno's family member. Tarango eventually found out that defendant had been charged with murder and was also in custody. They were housed on the same floor, but in different dormitories.

Tarango reported to higher-ranking Nortenos in jail that he wanted defendant disciplined for using Beltran's car to commit a crime. Tarango believed that the discipline defendant eventually received was too lenient. Tarango then attempted to impose his own discipline with a fellow Norteno named Wicked, but nothing ever happened to defendant.

While they were in jail, Tarango asked defendant why he had used Beltran's car to “smoke somebody.” Defendant responded, “[T]hey got my brother.” According to Tarango, defendant then “kind of shook it off as to [he] didn't think it would be traced back to her. [He] didn't think anything was gonna come of it” because he told Beltran to wipe the car down.

4. Defendant's Broken Date with Collins

Claudia Sandoval Collins had a sexual relationship with defendant. On the night of the shooting, Collins and defendant exchanged a series of text messages in which they made plans to meet that night. This exchange ended at 7:06:44 p.m. Defendant never showed up. The next text messages began 43 minutes after midnight, when Collins chastised defendant for failing to show up. Defendant replied, “I'm hella sick.” Collins texted him not to “hit [her] up anymore.”

5. Defendant's Admissions

David Espinoza, defendant's brother, 7 lived in a studio apartment in a duplex. Steven Sosa lived in the other studio apartment. The two apartments were connected by a door. The day after the shooting, Sosa and his friends, Odell Warren and Robert Moreno, were watching the NFL playoff game.8 Defendant entered Sosa's apartment through the door from Espinoza's apartment. Defendant told them that “he got the guys who got them, ” which Warren interpreted as the individuals...

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