People v. Hurtado, B200275 (Cal. App. 8/26/2008)
| Decision Date | 26 August 2008 |
| Docket Number | B200275 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDGAR HURTADO et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
APPEAL from judgments of the Superior Court of Los Angeles County, No. PA055043 c/w PA054484. Harvey Giss, Judge. Affirmed with directions.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Hurtado.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Ortega.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Edgar Hurtado and Juan Carlos Ortega appeal from the judgments entered upon their convictions by jury of three counts of premeditated and deliberate attempted murder (Pen. Code, §§ 664/187, counts 1-3),1 one count of shooting at an inhabited dwelling (§ 246, count 4), and three counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 6-8). Hurtado also appeals his convictions of two counts of having a concealed firearm in a vehicle (§ 12025, subd. (a)(1), counts 9 & 10), and three counts of carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1), counts 5, 11 & 12). The jury found to be true, as to both defendants, in connection with counts 1 through 3 and 6 through 8, the principal armed with a firearm allegation within the meaning of section 12022, subdivision (a)(1), and, as to Hurtado, in connection with counts 1 through 3, the firearm allegation within the meaning of sections 12022.53, subdivisions (b) and (c), and, as to counts 6 through 8, the firearm allegation within the meaning of section 12022.5, subdivision (a). It also found as to Hurtado, as to counts 1 through 8, that when the charged offenses were committed, he was released from custody on bail or own recognizance within the meaning of section 12022.1. The trial court sentenced Hurtado to three consecutive life terms with the possibility of parole plus 20 years on each for the firearm enhancement in section 12022.53, subdivision (c) and to a determinate term of nine years and Ortega to life with the possibility of parole plus one year.
Hurtado contends that (1) the trial court prejudicially erred in granting the prosecution's motion to consolidate the cases against him, (2) the evidence was insufficient to support his convictions of premeditated, attempted murder, and (3) the trial court prejudicially erred in instructing the jury in accordance with the modified "kill zone" instruction, as set forth in CALCRIM No. 600. Ortega contends that (4) his convictions of premeditated attempted murder and assault with a deadly weapon must be reversed because the trial court abused its discretion and deprived him of due process and the right to present a defense by excluding relevant evidence he sought to introduce and limiting his cross-examination of a prosecution witness, and (5) there was insufficient evidence to support his convictions. Each appellant joins in the contentions of the other to the extent they accrue to his respective benefit. (Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.) Respondent requests that the abstract of judgment be corrected to correspond to the trial court's oral pronouncement of judgment.
We affirm with directions.
The prosecution's evidence
The February 4, 2006 incident
We review the evidence in accordance with the usual rules on appeal. (See People v. Autry (1995) 37 Cal.App.4th 351, 358.) On February 4, 2006, at approximately 1:35 a.m., Los Angeles Police Officers John Matassa and his partner, Jose Herrera, made a traffic stop of a white, 1991 Nissan 300ZX, with two people inside, in the area of Kegel Canyon and El Dorado Avenue, in the County of Los Angeles. The Nissan did not immediately pull over, but when it did, both occupants exited. Hurtado, the passenger, was wearing a bulletproof vest.
The officers searched the vehicle and found a loaded .38-millimeter handgun and a loaded nine-millimeter handgun in a hole at the bottom of the seat in which Hurtado had been sitting and a note containing gang writing. The nine-millimeter handgun had a bullet chambered and the hammer cocked. The guns were not registered to Hurtado, and no fingerprints were found on them.
The April 12, 2006 incident
The shooting
Antonio Maldonado testified that on April 12, 2006, at approximately 9:00 p.m., he, Rene Galaviz, and Samuel Morales were leaving Galaviz's house on Defoe Avenue, a dead end street, in Pacoima, where Galaviz resided with his family. Maldonado lived with his family next door. Morales was Galaviz's sister's boyfriend. Ortega was often seen visiting his girlfriend, Vanessa, who was Galaviz's neighbor.
When they exited the house, Maldonado saw a white SUV driving towards the dead end of the street, make a three-point turn, then return to stop in front of the Galaviz residence. He saw three people inside. One of them asked, "Where are you from?" Maldonado responded, "From nowhere." Either the driver or front passenger yelled, "Fuck A.F.L., H.K." "A.F.L." was a tagging crew. Maldonado then saw movement in the vehicle and a gun on the passenger side.2 He did not see who actually fired the shots, as he and Galaviz hit the ground. Three or four shots were fired, hitting a tree behind Maldonado and the front door of the Galaviz residence, and shattering a window on a back door. The vehicle then drove away.
According to Galaviz, only he and Maldonado exited the house.3 Galaviz first saw a large "creamish colored" vehicle driving slowly away from the dead end of his street. The vehicle stopped in front of his house, and he did not see who did the shooting. He denied telling police that he saw a white vehicle going towards the dead end. Galaviz did not hear anyone say anything before shots were fired and denied telling police that he did. He also denied that he and his friends and the people in the SUV were "mad-dogging" each other, and that a girl named "Lettie" told him she knew he had identified the people who shot at him and that he was going to "get it."
Galaviz's father, having heard the gunshots, called 911 and described the vehicle used in the shooting as a white SUV, possibly a Ford Explorer, with chrome rims. Later, he spoke with Detective Dena Kendrick about a witness relocation program. After the shooting, the Galaviz family moved from Defoe Avenue.
Apprehension of appellants
At the time of the incident, Officer Joseph Cavestany and his partner, Officer Tom Lunan, received an assault with a deadly weapon radio call, describing the involved vehicle as Galaviz's father had described it. On their way to Defoe Avenue, they saw a vehicle matching that description. As the officers made a U-turn and proceeded to follow the vehicle, it abruptly pulled to the curb.
The driver and the right rear passenger exited and were ordered to the ground. The driver, appellant Ortega, complied, but the rear passenger, Felipe Ortega, fled and was chased by Officer Lunan. Officers Matassa and Herrera assisted in the foot pursuit, Officer Herrera apprehending him. The front passenger, Hurtado, who was out of custody on bail on charges related to the February 4, 2006 incident, remained in the vehicle and was removed by the officers.
The field showup
Officer Leonard Drayton responded to the scene of the shooting and took Maldonado, Galaviz and Morales to a field showup. They were separately shown the three men who had been in the Explorer. Galaviz and Maldonado identified Ortega as the driver and Hurtado as the shooter, although, at trial, Galaviz denied identifying them. Morales could not identify anyone, as he said he was inside at the time of the shooting, but identified the vehicle as the one that drove by Galaviz's residence.
Witness statements
After apprehending Felipe Ortega and delivering him to Officer Cavestany, Officers Matassa and Herrera proceeded to Defoe Avenue. There, Officer Matassa interviewed Morales, who told him that he, Galaviz and Maldonado were leaving Galaviz's house when they saw a white Explorer with chrome wheels, driving slowly on Defoe Avenue. It made a U-turn at the end of the street, came back the other way, and stopped in front of the Galaviz house. Someone inside asked where they were from and Maldonado responded, "From nowhere." An individual inside yelled, "Fuck A.F.L., H.K.," and the front passenger displayed a handgun and fired three or fours shots. Morales and his friends hit the ground, and the SUV left.4 Galaviz and Maldonado gave substantively similar statements to Officer Herrera, but Maldonado identified Hurtado by name as the person who made the comment and pointed the gun.
The next day, Detective Kendrick again interviewed Galaviz who gave a statement similar to the one he had given the night before. He also told the detective that A.F.L. stood for "All Fearless," a tagging crew with which he associated, but was not a member. He later told the detective that while visiting at San Fernando High, a girl named Lettie approached him and said that "the word was out" that he and the other victims had identified a suspect in the shooting and "that they were going to get it."
Defendants' statements
At approximately 12:45 a.m. on April 13, 2006, Hurtado gave a signed, handwritten statement to Officer Matassa. In it, he admitted being in the Explorer and driving around. Shots were fired after words were exchanged with individuals who said they were with the A.F.L. tagging crew.
Between 9:00 and 11:00 a.m. that same morning, Detective Kendrick interviewed Hurtado. This interview was not recorded, and no written or signed statement of the interview was taken. Detective Kendrick testified that Hurtado...
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