People v. Iraheta

• Decision Date: 31 August 2017
• Docket Number: B261606
• Citation: 14 Cal.App.5th 1228,222 Cal.Rptr.3d 706
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos Miguel IRAHETA, Defendant and Appellant.

14 Cal.App.5th 1228

222 Cal.Rptr.3d 706

The PEOPLE, Plaintiff and Respondent,

v.Carlos Miguel IRAHETA, Defendant and Appellant.

B261606

Court of Appeal, Second District, Division 3, California.

Filed August 31, 2017

Certified for Partial Publication.^*

Marilee Marshall, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.^**

Defendant and appellant Carlos Miguel Iraheta was convicted of shooting at an occupied motor vehicle ( Pen. Code, § 246 )¹ with a section 12022.53, subdivision (d) firearm enhancement, and sentenced to 30 years to life in prison. Iraheta contends that in light of our Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), admission of gang expert testimony, as well as evidence related to "field identification" cards, was prejudicial error. We agree, and therefore reverse.

In the unpublished portion of the opinion, we reject Iraheta's arguments that addition of the section 246 charge after his successful appeal of his earlier conviction constituted vindictive prosecution and the section 246 conviction was barred by the statute of limitations.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. People's evidence

(i) The December 2002 shooting of Michael Orozco

On December 20, 2002, at approximately 5:30 p.m., Noe Martinez drove his white Honda Civic to the Jr. Market in Inglewood. Inside the market, Jose Tovar, whom Martinez did not know, stared at him, giving him a bad feeling. When Martinez left the market, Tovar walked toward Martinez's Honda. Tovar was a member of the Inglewood 13 criminal street gang.

Martinez then drove to the home of his friend, 17–year–old Michael Orozco, where the two socialized and drank beer and tequila. At approximately 8:30 that evening Orozco and Martinez headed for another friend's home. Because Martinez was feeling "buzzed," Orozco drove Martinez's Honda. Their route took them past the Jr. Market.

Meanwhile, Iraheta, his pregnant girlfriend Melody Maciel, his younger brother Richard Iraheta,² and his stepbrother Alexis Moreno planned to go to the movies. Iraheta drove the group in his Camaro. En route, they stopped at

the Jr. Market, where Iraheta saw his friend Tovar. While they were talking, Martinez's car passed by the market, and Tovar pointed at it.

Martinez saw Tovar's gesture and told Orozco to "step on it." Iraheta followed them in his Camaro. Orozco drove to 65th Street and, at Martinez's direction, stopped the car. Martinez exited the Honda, intending to talk to the people in the Camaro. He was wearing a red hat and a dark red jacket or shirt. Iraheta, driving the Camaro, pulled up slowly. Martinez lifted his hands up and said, " ‘what's going on?’ " As the Camaro passed the Honda, Iraheta fired a single gunshot and sped off. The shot shattered the Honda's driver's side window and hit Orozco in the neck, fatally wounding him.

(ii) The investigation

Officers stopped the Camaro shortly after the shooting. An officer found a loaded gun under the front passenger seat. One round was expended. Forensic testing revealed that the bullet that killed Orozco had been fired from the gun. At a field showup conducted shortly after the shooting, Martinez identified the Camaro and Iraheta. Officers did not find a gun in Martinez's Honda.

(iii) Statements and testimony by the other occupants of the Camaro

Moreno and Melody testified that as the Honda passed the Jr. Market, it slowed and then sped off. En route to Melody's house, Iraheta's group came upon the Honda stopped in the middle of the road, partially blocking their path. Melody asked Orozco to move the car. Martinez approached the back of the Camaro. Both Melody and Moreno heard Richard say, " ‘he's got a gun.’ " Iraheta pulled a gun from under his seat, fired a single shot at the Honda, and drove off. A white SUV or truck with its high beams on briefly chased the Camaro. Melody asked Iraheta, " ‘What were you thinking? Why did you do it?’ " He replied that "he was sorry; that he didn't want to put us in this situation but he did it for our own safety." Iraheta handed the gun to Melody and told her to put it under her seat. In a recorded police interview, Moreno stated that Iraheta had followed the Honda after leaving the market. He explained at trial that he did not mean Iraheta intentionally followed the Honda, but that Iraheta simply travelled in the same direction.

(iv) Gang evidence

A gang expert testified regarding the characteristics and activities of the Inglewood 13 gang. He opined that Iraheta was an Inglewood 13 gang member, based on his "West L.A." tattoo, attire, and association with other gang members. When given a hypothetical based on the facts of the case, the expert opined that the motive for the shooting was gang-related. Other

officers testified to contacts with and preparation of field identification (FI) cards regarding Iraheta and other persons they believed to be gang members.³

b. Defense evidence

Iraheta testified in his own defense. At the time of the shooting, he was 19 years old, had no criminal record, was in the military reserves, and was not a gang member. He and Melody were planning to marry. He had just been hired by Bank of America and was enrolled to start classes at ITT Tech. He had a "West L.A." tattoo, but it was not a gang tattoo. He had the gun for protection because he had been beaten up near his house by gang members approximately six months before the shooting. He had been walking home from a sandwich shop when gang members confronted him, and they attacked when he stated he was not a gang member.

On the night of the shooting, Iraheta, Melody, and his brothers were planning to go to the movies at Universal City Walk. He drove by the Jr. Market and his friend Tovar flagged him down. While he and Tovar were talking, Martinez's Honda passed by. Tovar warned Iraheta that the Honda's occupants had been "cruising around and looking for trouble" and had " ‘mad-dogg[ed]’ " him earlier that day. Iraheta left the Jr. Market a few minutes later. He did not intentionally follow the Honda, but his route took him to 65th Street. The Honda was stopped in the street, blocking it. Martinez was standing outside the car. Iraheta signaled to Martinez to move the car. Martinez then put his hands up as if to say " ‘What's up?’ " Eventually, Orozco moved the Honda enough that Iraheta attempted to squeeze by. Martinez approached the back of the Camaro. When the Camaro was approximately parallel to the Honda, Richard said, " ‘keep going. He gots a gun’ " or similar words. Iraheta saw Orozco looking at him and saying something. Orozco had a small pistol in his hand and was tapping it on the Honda's window. Iraheta grabbed his gun from under the seat and fired one round while simultaneously hitting the gas pedal. He believed Orozco was going to fire first. He was afraid Melody, who was carrying his baby, was going to be shot as she was closest to the Honda. When asked why he did not simply speed up and drive away, he explained: "My foot was halfway down on the [brake] pedal. And it just—it just happened quickly. I did speed off at the same time as I fired. And even if I would have hit the gas, [Martinez] was behind my car, and they would have just shot into my car, and Melody is right next to that other guy so the threat was there." On cross-examination, Iraheta admitted he had previously testified that he was unsure whether Orozco had a gun or a cellular telephone in his hand.

Tovar testified that he saw the Honda slow as it passed the Jr. Market. He believed one of the men in the Honda was a gang member because he was wearing red, a gang color. As he was talking to Iraheta, the Honda passed by again. Tovar told Iraheta to be careful because the men in the Honda " ‘might be guys looking for trouble’ " or "they don't look like they're from here." Tovar admitted he had been an Inglewood 13 gang member from 1996 to 1999. He admitted telling an officer in 2011 that he was an Inglewood 13 member, but he had not in fact been affiliated since 2000. Iraheta was not a gang member.

Among other things, the defense introduced the testimony of two witnesses who had attended basic training with Iraheta, and did not know him to be a gang member; expert testimony regarding the "fight or flight" syndrome; expert testimony regarding the Culver City Boys gang, whose gang color was red; and a gun expert's testimony that an object shown in a photograph of the Honda's interior, but not discovered by police, was a gun.

2. Procedure

In 2003, after an earlier trial, a jury convicted Iraheta of second degree murder with a firearm enhancement. We affirmed the judgment in an unpublished opinion. ( People v. Iraheta (Apr. 30, 2008, B173223, 2008 WL 1886795 ( Iraheta I )).) Thereafter our Supreme Court granted review and, after issuance of its opinion in People v. Chun (2009) 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425, transferred the matter back to us for reconsideration in light of that decision. Overruling prior precedent, Chun held that shooting at an occupied motor vehicle ( § 246 ) could not serve as the basis for a felony-murder instruction. We concluded that the trial court's contrary instruction was prejudicial error under Chun , and reversed in an unpublished opinion. ( People v. Iraheta (Nov. 20, 2009, B173223) 2009 WL 3957153 ( Iraheta II ). )⁴

The People then filed an amended information charging Iraheta with murder (§ 187, subd. (a)) and adding a second count of shooting at an occupied motor vehicle ( § 246 ), with section 12022.53 firearm allegations. Upon the retrial that is the subject of the instant appeal, the jury convicted Iraheta of shooting at an occupied motor vehicle in violation of ...