People v. Morales
| Decision Date | 30 July 2021 |
| Docket Number | A157644 |
| Citation | 282 Cal.Rptr.3d 151,67 Cal.App.5th 326 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Luis Javier MORALES, Jr., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Shannon Case, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Katie L. Stowe, Elizabeth W. Hereford, Deputy Attorneys General for Plaintiff and Respondent.
Defendant Luis Javier Morales, Jr. fired six shots in the direction of a parked, occupied car, resulting in the death of his pregnant acquaintance who stood in the street near the car. The jury convicted Morales of two counts of first degree murder, one count of attempted murder, one count of shooting at an occupied vehicle, and one count of possession of a firearm by a felon. The jury also found true four firearm use enhancements under Penal Code 1 section 12022.53, subdivision (d) ( section 12022.53(d) ), and a multiple murder special circumstance allegation ( § 190.2, subd. (a)(3) ).
Morales contends: (1) the prosecutor committed prejudicial misconduct in closing argument and his counsel was ineffective for failing to object thereto; (2) the attempted murder conviction must be reversed because there was insufficient evidence to support a kill zone jury instruction, and the instruction given was legally erroneous; and (3) with respect to the firearm use enhancement found true on count 1, Morales was deprived of due process by the court's failure to instruct that the requisite great bodily injury or death under section 12022.53(d) must be to a person other than an accomplice.
Morales also raises the following sentencing challenges: (1) the court erred in imposing two terms of 25 years to life for first degree murder (counts 1 and 2), along with a life without the possibility of parole (LWOP) term for the multiple murder special circumstance finding; (2) remand is required to allow the trial court to exercise its discretion under section 12022.53, subdivision (h) ( section 12022.53(h) ) to strike the firearm use enhancements; and (3) the sentencing and youthful offender parole provisions of sections 3051, 1170, subdivision (d)(2)(A)(i) ( section 1170(d)(2) ), and 190.5, subdivision (b) violate equal protection principles. We modify Morales's sentence on counts 1 and 2 and the special circumstance finding to reflect two LWOP sentences, and we reverse the true finding on the section 12022.53(d) firearm use enhancement as to count one. We otherwise affirm the judgment.
Based on Morales's act of firing six shots at the occupants of a parked car and the resulting deaths of a young woman who stood near the car and her unborn baby, Morales was charged with two counts of murder with a multiple murder special circumstance allegation and firearm use enhancements ( §§ 187, subd. (a), 190.2, subd. (a)(3), 12022.53, subds. (b), (c) & (d) ) (counts 1 and 2); attempted murder with firearm use enhancements ( §§ 664, 187, subd. (a), 12022.53, subds. (b), (c) & (d) ) (count 3); shooting at an occupied vehicle with a firearm use enhancement ( §§ 246, 12022.53, subd. (d) ) (count 4); and possession of a firearm by a felon ( § 29800, subd. (a)(1) ) (count 5). A jury found Morales guilty as charged and made true findings for the special circumstance allegation and the section 12022.53(d) firearm use enhancements.
The trial court sentenced Morales to a term of LWOP on the special circumstance allegation and to two consecutive terms of 25 years to life for each murder. The court imposed but stayed the four 25 years-to-life terms for the firearm use enhancements associated with counts 1 through 4; a term of 7 years for attempted murder; a term of 1 year and eight months for shooting at an occupied vehicle; and a term of eight months for the felon in possession of a firearm conviction. Morales timely appealed.
In September 2016, 18-year-old Ilaysia M. was seven months pregnant with Deandre L.’s child. Deandre L. had ended the relationship and had a new girlfriend, Maria M. Ilaysia M. was upset over the end of the relationship, so, on September 5, Ilaysia M., her cousin Maria U., and their friends, Joselin E. and Carla G., drove around looking for Deandre L. and Maria M. to confront them. Maria U. planned to fight Maria M.
The women saw Deandre L. and Maria M. at a bus stop near Deandre L.’s house. Before the women could get out of their car, however, Deandre L.’s friend, Gustavo D., picked the couple up in his Cadillac. When Gustavo D. drove away, the women followed. They spotted Gustavo D.’s car in a market parking lot. The women pulled into the parking lot and got out of the car; Maria U. went to Maria M.’s door, hit the window, and told her to open the door. Maria U. and Maria M. started fist fighting.
Elias Q., who was in the front passenger seat of Gustavo D.’s car, got out, and, according to Joselin E., tried to hit or push Ilaysia M. At trial, Elias Q. denied trying to hit or push Ilaysia M., but admitted that he had pushed Maria U. "away." Deandre L. also intervened and called Ilaysia M. and her friends "bitches." After the fight ended, Deandre L. and Elias Q. told the women to come over to Deandre L.’s house, and Joselin E. testified that Elias Q. made a gun gesture with his hand.
Ilaysia M. and her friends were angry and upset, and one of them decided to call Morales, whom Joselin E. was casually dating, on Joselin E.’s cell phone. The women told Morales about the fight, including that Deandre L. had called them names and that Elias Q. had tried to push Ilaysia M. They asked Morales to accompany them to Deandre L.’s house, and they talked about wanting to fight.
The women then met Morales, who was with Luciano D. and Deepak N., at the corner on Bush Avenue. One of the women asked the men to "slide" over to Deandre L.’s house. "Slide" can imply something violent. At Bush Avenue, defendant got out of his black Nissan and went inside a nearby residence to go get something. Maria U. saw defendant holding a black gun in the street at Bush Avenue and 21st Street.
The two cars then went to Ilaysia M.’s grandmother's house, and the plan became to go to Deandre L.’s house. The word "slide" was used again. Maria U. told police that Morales said he was "going to slide on" Deandre L. Joselin E. told police that she saw Luciano D. with a gun that day before going to Deandre L.’s house. The women knew that Morales had a gun and knew that Luciano D. had one on that occasion. The women wanted Morales and his companions to bring their weapons and go with them to Deandre L.’s house, where they were going to pick a fight. The women drove to Deandre L.’s house, and the three men did as well in Morales's car.
When the women arrived at Deandre L.’s house, Gustavo D.’s Cadillac was parked next to the sidewalk in front of Deandre L.’s driveway, and Gustavo D. and Elias Q. were in the car. Elias Q. testified that another person, Jason, was also in the Cadillac, and he believed that Jason was in the car when the fight occurred earlier at the market. Maria U. also said that Jason was in the Cadillac when they arrived at Deandre L.’s house. Gustavo D., however, testified that Jason was not in the Cadillac when the women arrived at Deandre L.’s house. Gustavo D. sat in the driver's seat and Elias Q. in the front passenger seat of the Cadillac. Elias Q. said Jason was in the backseat. The boys were smoking synthetic marijuana, and Deandre L. and Maria U. had gone inside Lowe's house.
Joselin E. stopped her car in the middle of the street facing the opposite direction from Gustavo D.’s car. Maria U. asked Gustavo D. if he "had a problem with" her, and, as she spoke, Ilaysia M. got out of the car, "walk[ed] up to" Gustavo D., and asked where Deandre L. and Maria M. had gone. By Gustavo D.’s account, all of the women were aggressive and started "screaming" and demanding to see Maria M. He testified it was clear they wanted to continue the confrontation.
At some point, Morales, Luciano D., and Deepak N. arrived in Morales's black Nissan. Gustavo D. and Joselin E. testified that Morales drove by in a black car after the women parked. Gustavo D. testified that Morales parked his car 30 to 40 yards behind Gustavo D.’s car, facing the same direction as the women's car. Gustavo D. and Elias Q. could only see Morales's car by turning around or looking in the rearview mirrors.
Ilaysia M. stood near the driver's side window of Gustavo D.’s car with her body facing him. As they spoke, Maria U.—who had returned to Joselin E.’s car—saw Morales and Luciano D. get out of Morales's car. Maria U. testified that she saw Morales point his gun in the direction of the Cadillac. She did not hear anything before Morales shot. Gustavo D. also saw Morales shoot, and Gustavo D. and Maria U. saw sparks from Morales's gun as it fired. Joselin E., who sat in the driver's seat of her car, dropped down but saw one bullet come from the front of her car across and pass on the side; the bullet came from the direction of Morales's car. A neighbor testified that she heard several gunshots in quick succession. Elias Q. counted four or five shots. San Pablo's ShotSpotter system—a network of audio-recording devices placed throughout the city that detect the sound of gunfire and "geolocate" its origin—detected six gunshots at 7:56 p.m., at 17th Street and Post Avenue.
At the sound of gunfire, Gustavo D. testified that he opened the driver's side door and fled from the car. He saw Morales shooting as he fled. Elias Q. opened the door on the other side of the car and also "ran for [his] life." They both hopped the fence to Deandre L.’s backyard and waited for the police to arrive. Elias Q. testified that Jason ran from the car as well, but he did not see him again that day. As he jumped over the fence,...
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