People v. Mora
| Decision Date | 23 October 1995 |
| Docket Number | No. B086630,B086630 |
| Citation | 46 Cal.Rptr.2d 99,39 Cal.App.4th 607 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 95 Cal. Daily Op. Serv. 8353, 95 Daily Journal D.A.R. 14,334 The PEOPLE, Plaintiff and Appellant, v. Ernest Angel MORA, Defendant and Respondent. |
Gil Garcetti, District Attorney, Diana L. Summerhayes and Brent Riggs, Deputy District Attorneys, for plaintiff and appellant.
Michael P. Judge, Public Defender, Albert J. Menaster, Reed Webb and Kathy Quant, Deputy Public Defenders, for defendant and respondent.
A jury convicted defendant Ernest Angel Mora and codefendant Alex Arredondo on four counts (1) first degree murder with the special circumstances that the murder was committed in the course of burglary and robbery, (2) burglary, (3) robbery, and (4) attempted robbery. Defendant and Arredondo (not a party to this appeal) planned an armed robbery of a drug dealer in the dealer's home. According to plan, defendant, who knew the victim, gained entrance for the ostensible purpose of buying drugs, while Arredondo stood outside with a rifle. Arredondo then entered through the unlocked door, and during resistance by the drug dealer and another visitor, shot the drug dealer twice, killing him.
Because the prosecution did not seek the death penalty, the sole punishment provided by Penal Code section 190.2 for defendant's conviction of first degree murder with special circumstances is life imprisonment without possibility of parole. At defendant's sentencing hearing, however, the trial court concluded the statutory punishment of life imprisonment without parole is so grossly disproportionate to defendant's individual culpability as to constitute cruel or unusual punishment under People v. Dillon (1983) 34 Cal.3d 441, 477-489, 194 Cal.Rptr. 390, 668 P.2d 697. Based on Dillon, the trial court reduced defendant's offense to ordinary first degree murder so as to sentence him to prison for 25 years to life instead of life without parole. The People appeal the trial court's order, contending it is unlawful or unauthorized. (Pen.Code, § 1238, subds. (a)(6), (10).) We agree that the trial court exceeded its authority by failing to impose the sentence prescribed by law, life imprisonment without possibility of parole.
The evidence at trial was provided by the eyewitness testimony of Robert Nale, the other victim. On August 21, 1992, Nale and the murder victim Richard Minard were in the living room of Minard's home about 1:30 a.m., watching television and smoking marijuana, when defendant knocked on the door. Nale had previously introduced defendant to Minard for the purpose of buying drugs. Nale opened the door and admitted defendant. Defendant asked to share a joint of marijuana. As they were so doing, Arredondo knocked on the door. Defendant asked if his friend, Arredondo, could come in and use the bathroom, which was agreed. When the door was opened, Arredondo pushed his way in pointing a high-powered rifle. Arredondo and defendant told Minard and Nale to get down on the floor, which they did. Arredondo then instructed Minard to get up and "get his boxes of shit." As Minard rose to his knees to get up, defendant grabbed him. Minard threw defendant off, and Arredondo fired a shot into the floor. Minard picked up a coffee table and threw it at Arredondo. Arredondo fired a shot into Minard's chest. Minard grunted and fell to his knees, whereupon defendant pushed him the rest of the way down. Arredondo then stepped over Minard's body and shot him in the back. Each gun wound was fatal.
Defendant and Arredondo then instructed Nale to break into Minard's bedroom, where money and Tupperware containers of marijuana were on the bed. Defendant picked up the money and marijuana. As they left the house, defendant and Arredondo told Nale not to say anything or they would come get him.
Defendant presented no defense evidence at trial.
When police discovered defendant's involvement and interviewed him, he gave a statement the following January, which was not admitted into evidence at the jury trial, but the transcript of which was offered by defendant in support of sentence reduction under Dillon. Defendant told police: defendant and Arredondo had been drinking beer, when defendant said he wanted to get high and knew someone who sold drugs. Arredondo said, "Let's go rob him." Arredondo provided a rifle, and Arredondo and defendant went to the victim's house in defendant's car, driven by a third party who was not so drunk. Defendant could not identify the type of rifle Arredondo had, but described how it used large pointed bullets about three inches long. The plan was for Arredondo to enter the house with the gun after defendant gained entrance. After defendant went inside and talked awhile with the victims, Arredondo came in through the unlocked door pointing the rifle and said "Don't move ... get down on the floor." Nale attempted to grab the rifle from Arredondo, while Minard "rushed" defendant. Arredondo stepped back, and defendant heard a shot. Minard stepped back and fell to the floor. Defendant "froze" when Minard fell, and did not remember a second shot. Defendant did not know whether Minard was alive or dead. Defendant and Arredondo forced Nale to break open the bedroom door, and defendant grabbed the money and marijuana from the bed. Defendant told Arredondo not to shoot Nale. After they left, defendant and Arredondo fell asleep; when defendant awoke, Arredondo was gone with all the money and drugs; defendant got none of the proceeds. Defendant was bothered by the crime, because he never intended that anybody die; "nothing was supposed to happen"; nobody "was supposed to die"; it was "never supposed to go that far"; defendant only wanted to rob the victim of his drugs.
The probation report showed defendant was 23 years old at the time of the murder (August 1992) and had three prior convictions as an adult: (1) in January 1988 a burglary charge was reduced to misdemeanor theft, with 36 months' probation and 5 days in jail (defendant stole a "VCR"); (2) in May 1990 charges of burglary, assault, and malicious destruction of property were reduced to misdemeanor vandalism, with 12 months' probation and 60 days in jail (defendant kicked in a door in a dispute); (3) in June 1990 defendant was convicted of burglary and given a misdemeanor sentence of 12 months' probation with 10 days in jail (defendant did not recall the circumstances). Since dropping out of high school he had fathered two children and was intermittently employed in janitorial and fast food work.
Defendant moved for new trial, urging the court to find the evidence insufficient to show defendant acted with reckless indifference to human life as required by Penal Code section 190.2, subdivision (d). The trial court denied the motion for new trial.
In a sentencing memorandum defendant urged the trial court to reduce the sentence under Dillon. Defendant contended he deserved a lesser punishment than the actual shooter Arredondo; that according to his statement to police defendant never specifically intended the victim to die; and that according to numerous letters submitted to the court by defendant's relatives, defendant is caring, loving, and affectionate toward his family, well-mannered and nice.
The court first selected the determinate terms for burglary, robbery, and attempted robbery. The court imposed an upper base term and consecutive sentences, giving the reasons that the crimes involved great violence, planning, and sophistication, defendant had prior convictions, his crimes were numerous and of increasing seriousness, and his prior performance on probation was unsatisfactory.
As to the murder with special circumstances, however, the trial court reduced the offense to first degree ordinary murder so as to impose a term of 25 years to life instead of life without parole. The prosecutor argued that under Penal Code section 1385.1 the court had no power to strike the special circumstances finding. The court replied that People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, was still controlling and gave "a trial court ... the discretion to modify the verdict" in view of "the nature of the offender, his state of mind and his culpability." The court concluded, "[I]n reviewing the taped conversation that the defendant had with Sergeant Verdugo, and the critical point that it was Arredondo and not Mora that was the shooter, there are certain mitigating factors in this case as far as defendant Mora is concerned."
The prosecutor argued the court should not consider defendant's statement to police because it was not in evidence at the trial, was contrary to Nale's testimony, was self-serving to minimize his role, and was not given until the police discovered defendant's involvement. The prosecutor also noted that defendant set up the crime and continued with the robbery after the victim was shot. The prosecutor contrasted the unsophisticated minor in Dillon with defendant, who was 23 and had a prior record, and further suggested the court's previous findings about the seriousness of defendant's prior record were inconsistent with finding in his favor under Dillon.
The court commented that while Arredondo was a cold-blooded killer, 1
In the case cited by the trial court, People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, an unusually immature 17-year-old...
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