People v. Mariscal
| Decision Date | 01 April 2016 |
| Docket Number | B262278 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MARISCAL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA078033)
APPEAL from a judgment of the Superior Court of the County of Los Angeles, Antonio Barreto, Judge. Affirmed in part, reversed in part, and remanded.
Paul Couenhoven, 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, Senior Assistant Attorney General, Stephanie A. Miyoshi and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Mariscal was convicted of two counts of murder (Pen. Code, § 187, subd. (a)1), three counts of attempted murder (§§ 664 and 187, subd. (a)), street terrorism (§ 186.22, subd. (a)), and possession of a firearm by a felon (§12021, subd. (a)(1)). He contends there was insufficient evidence to support a finding the driver of the vehicle in which defendant was a passenger was a member of defendant's gang. Defendant also contends the trial court erred by instructing the jury that the element of a specific intent to kill required for an attempted murder conviction could be found based on a "kill zone," and by admitting evidence of the psychological impact of the attempted murder on one of the victims. Defendant further contends the trial court erred by imposing a parole revocation fine, and failing to credit defendant for the actual days he served prior to sentencing.
The Attorney General argues the indeterminate abstract of judgment2 should be corrected to reflect the trial court's oral pronouncements that defendant was sentenced to serve his terms on counts 1-5 consecutively, and was to serve the term of life with a possibility of parole on counts 3-5.
We reverse the trial court's imposition of a $200 parole revocation fine, and its order denying defendant custody credit. We remand the matter for the trial court to amend the abstracts of judgment consistent with this opinion. We otherwise affirm the judgment.
At about 3:00 p.m. on June 22, 2011, an employee of a property management firm located on Centinela Street, about 1.7 miles from Penmar Park in Venice, saw a Hispanic man with a slight build park a light or silver colored Volvo station wagon in the parking space near where she worked. About one hour later, Allan Mateo, Salvador Diaz, Andy Santiago, Emmanuel Vasquez, and Christian Hernandez, were sitting together on bleachers at Penmar Park in Venice. None of the young men were gang members at that time but they knew gang members.
The Volvo station wagon pulled up near the park. Defendant exited the Volvo and approached the group holding his hands behind his back. Defendant asked the young men where they were "from," effectively asking them the name of their gang. Mateo replied they were not gang members. Defendant pulled out a gun, said "Culver City," and shot Mateo. Defendant then pointed the gun toward Diaz, Hernandez, Santiago, and Vasquez.
Defendant shot: Mateo four times, two of which were fatal; Diaz twice in the chest, one of which was fatal; and Hernandez twice in his legs. Santiago fell through the bleachers onto the ground, and then ran and hid behind some parked cars. Neither Santiago nor Vasquez were shot.
Nine .9-millimeter shell casings were found near the bleachers at the park. All of the casings were fired from the same gun.
Maritza Perez, a softball coach, heard the gunshots. Defendant lowered the gun and ran, crossing a street in front of Perez. The headlights of the Volvo turned on.3 The driver of the car looked over his left shoulder in defendant's direction. Perez saw thedriver was a thin Hispanic man with short hair. Defendant ran to the car, looked around, and entered the car through the passenger door. The car drove away, but Perez was able to write down a portion of the car's license plate number—"W229." Perez called 911.
Citing People's Exhibit 7, defendant acknowledges the license plate of the car defendant entered was LTWY229. The car had been stolen between June 18 and 19, 2011, and defendant's fingerprints were found on its passenger door. Between approximately 4:00 p.m. and 4:15 p.m., telephone calls were made on defendant's cell phone using cellular towers near where the Volvo was found and near the shooting scene.
At 4:26 p.m., on June 22, 2011, the day of the shooting, defendant texted a female friend, At 4:30 p.m., a local news website, yovenice.com, posted a story about the shooting, stating three people had been shot. Defendant texted someone, He also texted this person, "Watch the news, bro."
At 4:53 p.m., a local television affiliate of the Fox News Network, posted a story about the shooting on its website. Later that day, defendant texted the female friend as follows: "News. Two men shot, One in leg. Fox 11 L.A. His friend texted back: "Did you shoot someone?" Defendant answered:
The following morning, the Volvo remained parked at the parking space for the vacant apartment complex. The driver's door of the car was half closed and keys were in the ignition. Perez identified photographs of the Volvo as the same car defendant entered after he shot the victims.
The police arrested defendant. After defendant arrived at the police station, he was allowed to use his cell phone. Defendant sent someone a text message, summarized by Los Angeles Police Department Detective Terrance Keyzer as follows:
Later at the station, defendant told his mother the police would "never find the gun," it was "impossible" for them to find it, and it was "gone."4 Defendant's mother told defendant the police had taken his cousin's cell phone. In response, defendant asked his mother if his cousin had deleted "the messages," and she responded, "Yeah."
Los Angeles City Police Officer Nicholas Coronado, the prosecutor's gang expert, testified a gang member earns "respect" by "putting in work," i.e., committing crimes. A "roll call" is a list of gang members, usually using their gang monikers/nicknames. The question "Where are you from?" is a threat or a challenge to rival gang members or the public at large that often precedes a confrontation.
Officer Coronado was assigned to the Pacific Police Station's gang enforcement detail and specifically assigned to monitor the Culver City Boys gang. The Culver City Boys gang membership was primarily Hispanic. The gang claimed portions of Culver City and nearby areas of Los Angeles. Venice 13 or "V13" claimed adjacent areas, including Penmar Park. The Culver City Boys had a rivalry with V13, among other local gangs.
The Culver City Boys primary activities included robberies, burglaries, assaults with deadly weapons, vandalisms, narcotics sales, and auto thefts. The gang members used signs including the letters "CXC" and "CC" to identify itself and communicate status in the gang. In 2009, two Culver City Boys gang members were convicted of separate robberies.
Defendant was an admitted Culver City Boys gang members. He had a tattoo of "CC" on his hand and a moniker of "Little Poste." A Culver City Boys roll call with the name "Little Poste" included on it was found in defendant's apartment.
Officer Coronado opined defendant was a Culver City Boys gang member and, based on a set of hypothetical facts matching the facts in this case, the murders and attempted murders were performed for the benefit of, at the direction of, or in association with the Culver City Boys gang. The expert also opined, because the driver of the Volvowas willing to help defendant conduct the shootings, the driver "[was] either a fellow gang member or [was] at the time an associate putting in work [to] show that he was "represent[ing the] hood [] too."
Dr. Mitchell Eisen, defendant's identification expert, testified several variables could affect the accuracy of an eyewitness's identification, including capacity limits on attention; stress and trauma; exposure duration and time passage. According to Dr. Eisen, the manner in which eyewitness evidence is collected may also affect an identification, including how the identification procedure is set-up and admonitions given to the witness. He opined a "double-blind" line-up (such that neither the eyewitness nor the officer conducting the line-up knows whether a suspect is included) is the most accurate manner in which to collect eyewitness evidence.
The Los Angeles County District Attorney filed an amended information charging defendant with the murders of Mateo and Diaz in violation of section § 187, subdivision (a) (counts 1 and 2), the willful, deliberate, and premeditated attempted murders of Hernandez, Santiago, and Vasquez in violation of sections 664 and 187, subdivision (a) (counts 3-5); street terrorism in violation of section 186.22, subdivision (a) (count 6); and possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (count 7).
The District Attorney alleged as to counts 1 and 2: defendant committed multiple murders, a special circumstance pursuant...
To continue reading
Request your trial