People v. Moreno

Decision Date15 September 2020
Docket NumberB291857
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ANTHONY MORENO, Defendant and Appellant.
CourtCalifornia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA141778)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed and remanded with directions.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Anthony Moreno appeals from a judgment entered after the jury convicted him of first degree murder and possession of a firearm by a felon. The jury found true Moreno personally used and intentionally discharged a firearm causing the victim's death. The jury also found Moreno committed the crimes for the benefit of a criminal street gang.

On appeal, Moreno contends (1) the trial court prejudicially erred by failing to instruct the jury that a conspirator can be an accomplice, whose testimony must be viewed with caution and corroborated by other evidence; (2) the court prejudicially erred in limiting the defense gang expert's testimony and admonishing him in a threatening manner; (3) the court prejudicially erred in failing to provide a playback of the audiotape of a witness interview in response to the jury's request during deliberations for the direct examination of the witness; (4) the court prejudicially erred in admitting a detective's description of Moreno as "crazy," but knowing what he was doing, and Moreno's jail-cell statements to a confidential informant; and (5) the court committed instructional error in defining the primary activities element of the gang enhancement.

Moreno also claims multiple sentencing errors. He argues the trial court erred by not staying the sentence on the firearmpossession conviction pursuant to Penal Code section 654.1 Moreno also contends, the People concede, and we agree the abstract of judgment must be corrected to reflect the court's imposition and stay of the firearm enhancement for Moreno's personal use of a firearm under section 12022.53, subdivision (b). Finally, Moreno requests we remand for the trial court to conduct a hearing on his ability to pay the court assessments and restitution fines pursuant to this court's opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the judgment as modified but remand for the trial court to allow Moreno to request a hearing and present evidence demonstrating his inability to pay the court assessments and restitution fines.

FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Information

The amended information charged Moreno with willful, deliberate, and premediated murder (§ 187, subd. (a); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). As to count 1, the amended information specially alleged Moreno personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (id., subd. (c)), and personally and intentionally discharged a firearm causing death (id., subd. (d)). As to both counts, the amended information alleged the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C) [count 1]; id., subd. (b)(1)(A) [count 2].)

B. The Prosecution's Case
1. The murder

Moreno was a member of the Artesia 13 gang. Moreno and fellow gang members used a detached garage in Artesia as a hangout. The garage walls were covered with Artesia 13 gang graffiti. Fellow gang member James "Lonely" Roberts2 testified Moreno lived in either the front house or the garage, but on cross-examination Roberts admitted he had no "specific knowledge" of that fact.3

On the night of November 24, 2015, Moreno and fellow gang members Roberts, Austen "Risky" Evans, and Dennis "Meklo" Mello, gang member or associate Raul "Sean John" Ruiz, gang associate Christina "Boxer" Martin,4 and Dawn "Molly" McEveety5 were together in the garage. Everyone was smoking crystal methamphetamine. Roberts testified Moreno sat on a couch about five to six feet from McEveety, who was seated on areclining chair looking at her smartphone. According to Evans, Moreno was sitting in a wheelchair, "off by himself" and "just real quiet." Evans, his girlfriend Martin, Roberts, Mello, and Ruiz were in a group seated on plastic chairs across from Moreno and McEveety, talking and "getting high a little bit." Another group of eight people were talking by a computer in the back corner of the garage. At some point Roberts and Evans saw a police car on the television monitor, which was connected to a security camera facing the alley next to the garage.

Approximately 15 minutes after the police car drove by, Moreno pulled out a rifle case from under the couch where he was sitting, and he removed a .22-caliber rifle from the case.6 Moreno sat holding the rifle for two minutes on his lap before saying, "Nobody—not everybody run at one time." Then, without saying anything further, Moreno chambered a round, pointed the rifle at the side of McEveety's head, and pulled the trigger. When the bullet hit McEveety's head, she raised her hands to the side of her head, jumped slightly, and looked over at Moreno. Moreno chambered another round and shot McEveety in the head a second time.

Mello did not see the shooting, but he heard two shots. After the first shot, Mello looked around and saw McEveety holding the left side of her head with her left hand. There was a pause, and then Mello heard a second shot. Moreno said, "Don't fuckin' run." Mello looked at Moreno and realized Moreno had shot McEveety. Mello was certain Moreno had shot McEveety because Moreno was the only one in the garage with a gun.

Evans testified everyone "was taken by surprise" and "in shock." According to Evans, after the shooting Moreno looked around the garage and said, "All right. Help me bag her up." Mello was the first person to run outside after the shooting. Roberts testified he got up and said, "What the hell?" Then he exited the garage in shock. Evans and Martin remained in the garage for two to three minutes before leaving.

Evans, Mello, and Roberts testified they did not know Moreno was going to shoot or kill McEveety and did not take part in her killing. Roberts had been intimate with McEveety a week before her death and considered her a friend. Evans and Roberts were not aware of any paperwork showing McEveety was a snitch working with law enforcement.

2. The investigation

On November 29, 2015 Los Angeles County Sheriff's Deputy Jesus Perez and another deputy responded to a radio call reporting an abandoned red hatchback car7 located by the boundary of Pico Rivera and Whittier. When Deputy Perez arrived, the other deputy asked him to assist in opening the hatchback door to inspect an ice chest in the back seat.8 They opened the ice chest and found a dead body inside. They closedthe ice chest and the hatchback door, secured the scene, and called the homicide bureau.

Los Angeles County Sheriff's Detective Domenick Recchia arrived at the scene that afternoon. He saw the body of a young female in the ice chest. The body was transported to the coroner's office, where it was identified as McEveety based on her fingerprints. Detective Recchia viewed McEveety's body at the coroner's office and observed her pants were low on her waist and "one of her pant legs was kind of exposed over her foot as if someone either tried to take her pants off or put her pants back on." DNA recovered from the ice chest handle matched that of Ruiz. Moreno's DNA and fingerprints were not recovered from the ice chest or vehicle.

Deputy medical examiner Job Augustine concluded McEveety died from two gunshots wounds to the left side of her head in a homicide. In addition, McEveety suffered a gunshot wound on her left hand. Augustine opined one of the bullets went through McEveety's left hand before entering her head. There was no evidence McEveety had been sexually assaulted.

After learning of McEveety's identity, Detective Recchia contacted her family. McEveety's mother provided Detective Recchia with McEveety's Facebook account and username. One of McEveety's sisters notified Detective Recchia of two Facebook posts by Lorna Ramos, one of McEveety's Facebook friends. Ramos knew McEveety through her son Robert Villasenor, who was an Artesia 13 gang member. Ramos's computer password was Arta 13.

On November 28, 2015 at 6:32 p.m., Ramos had posted on her Facebook profile, "RIP Molly." The next morning Ramos posted a second Facebook message, "So young, so sad." Ramosmade both Facebook posts before law enforcement found McEveety's body. Ramos initially told Detective Recchia she heard about McEveety's death on the news. When Detective Recchia told Ramos the media did not report about McEveety's death until after Ramos's posts, Ramos stated she saw someone else post about the death on Facebook. Ultimately Ramos admitted her cousin Delia had told her about McEveety's death. Ramos was not sure if her cousin was an Artesia 13 gang member.

McEveety's family reported McEveety did not have a cell phone plan, and therefore her smartphone "would only be active if she was connected to the internet [with] an I.P. address." Detective Recchia subpoenaed McEveety's Facebook and cell phone records, which showed she last accessed her Facebook account on the day of the shooting at 7:34 p.m. at the location of the back house on the property...

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