People v. Moreno

• Decision Date: 19 April 2021
• Docket Number: F078495
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RAUL DIAZ MORENO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. RAUL DIAZ MORENO, Defendant and Appellant.

F078495

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 19, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 16CR-07163)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Raul Diaz Moreno sexually abused his adopted daughters, S.M. and B.M., over the course of many years. Eventually, S.M. moved out. When S.M. was 19 years old and B.M. was 17 years old, B.M. sent S.M. a message reporting that she was being sexually abused by defendant. S.M. went with her boyfriend, her newborn daughter, and two companions to retrieve B.M. from the family home. Eventually, B.M. exited the residence, followed by defendant. As S.M., B.M., and their companions walked toward their vehicles, defendant shot S.M. in the back of the head; shot S.M.'s boyfriend in the ribs, shoulder, and back; and shot B.M. in the leg. Defendant pointed the gun at S.M.'s other two companions and pulled the trigger, but the gun failed to fire. When law enforcement arrived, defendant fired an additional two to three shots from inside the residence. Defendant surrendered to law enforcement a few hours later. All victims survived the shooting.

A jury convicted defendant on three counts of attempted murder (Pen. Code §§ 187, subd. (a), 664, subd. (a);¹ counts 1-3); five counts of assault with a firearm (§ 245, subd. (a)(2); counts 4-8); two counts of assault with a firearm upon a peace officer (§ 245, subd. (d)(1); counts 9-10); continuous sexual abuse of S.M. (§ 288.5, subd. (a); count 11); attempted forcible rape of S.M. (§§ 261, subd. (a)(2), 664; count 12); continuous sexual abuse of B.M. (§ 288.5, subd. (a); count 13); and forcible lewd acts upon a child as to B.M. (§ 288, subd. (b)(1); count 14). As to counts 1 through 3, the jury found defendant had personally and intentionally discharged a firearm and caused great bodily injury. (§ 12022.53, subd. (d).) As to counts 4 through 6, the jury found defendant had personally used a firearm (§ 12022.5, subd. (a)), and had personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts 7 and 8, the jury found defendant had personally used a firearm. (§ 12022.5. subds. (a), (d).) As tocounts 11, 13, and 14, the jury found defendant had committed an offense specified in section 667.61, subdivision (c) against more than one victim. (§ 667.61, subds. (b), (e).)

The court sentenced defendant to an aggregate term of 120 years to life plus 29 years, as follows: consecutive terms of two years, four months on each of counts 1 through 3, plus terms of 25 years to life for each of the firearm enhancements; a consecutive term of four years on count 7, plus 10 years for the firearm enhancement; a consecutive term of one year on count 8, plus one year, four months for the firearm enhancement; consecutive terms of two years on each of counts 9 and 10; a consecutive term of one year, eight months on count 12; and consecutive terms of 15 years to life on each of counts 11, 13, and 14. Sentence on counts 4 through 6 was imposed and stayed pursuant to section 654. The court also ordered defendant to pay a $10,000 restitution fine, a $560 court operations assessment, a $420 conviction assessment fee, and $22,785.55 in victim restitution.

On appeal, defendant contends his conviction on count 14 must be reversed due to improper communication between the court and jury that violated his constitutional rights, and because the court's response to a jury question was erroneous. Defendant additionally contends the fines, fees, and assessments imposed by the trial court violate his federal and state constitutional rights because he is unable to pay. Lastly, defendant contends the abstract of judgment must be corrected in several respects.

We conclude the court's communication with the jury did not violate defendant's constitutional rights and, in any event, was harmless beyond a reasonable doubt. We also conclude defendant has failed to demonstrate prejudice arising from the court's challenged response to the jury's question. We additionally conclude defendant has forfeited his challenge to the fines, fees, and assessments imposed by the trial court and, in any event, his arguments are without merit. We agree that the abstract of judgment requires correction as explained below, and will remand for the court to make these corrections. In all other respects, we affirm.

FACTS

As the issues on appeal are not fact-dependent, we summarize the factual background only briefly.

Defendant and his wife Margaret M.² adopted S.M. and B.M., who are biological sisters, when the girls were young. The couple also have five older biological sons³ and a biological daughter the same age as S.M. The children primarily grew up in Los Banos, but the family moved to Merced in 2013 when defendant became a pastor. S.M. moved out of the family home in 2015.

I. THE PEOPLE'S CASE

S.M. testified that defendant began sexually abusing her when she was in the third grade. Defendant would require S.M. to massage his penis or orally copulate him. The sexual abuse continued for several years. On Valentine's Day of 2015, defendant pinned S.M. to the couch and said, "This is what you want. This is what every guy is going to do to you anyway," and attempted to rape her. On February 17, 2015, S.M. reported the abuse to Margaret, who admitted she was aware of it. That day, S.M. also moved out of the family home. S.M. reported the sexual abuse to Child Protective Services in 2015, after she moved out.

B.M. was 18 years old at the time of trial. She testified that defendant began sexually abusing her when she was in kindergarten. Eventually, defendant would make B.M. orally copulate him approximately once per week. He would also come into B.M.'s room in the night to have sex with her or sodomize her. He would also fondle her breasts in the morning when she was required to bring him coffee. This abuse continued for several years. On the evening of Easter Sunday when B.M. was in seventh grade,defendant raped her. A few months before B.M. turned 17, she reported the abuse to her oldest brother, who then told Margaret.

B.M. acknowledged that she met with Child Protective Services workers in 2015 after S.M. moved out and told them no one in the household had touched her sexually. She testified that she had denied the abuse because she did not want to "tear up a family and a church."

On October 28, 2016, B.M., who was then 17 years old, contacted S.M., who was then 19 years old, through Facebook Messenger. B.M. told S.M., "What Dad did to you, he's doing to me now." S.M. told B.M. to pack her belongings because S.M. was going to pick her up. S.M. then went to the family home in Merced with her boyfriend Josh M.⁴ and their newborn daughter. Josh's brother Felix G., and Felix's girlfriend, Chanel B., followed in a separate vehicle.

Upon arrival at the residence, S.M. called the police to report that defendant had been raping her sister. S.M., Josh, and Felix approached the residence. Chanel stayed in S.M. and Josh's car to look after the infant. S.M. knocked on the door while Josh and Felix remained on the sidewalk. B.M. answered, and S.M. told B.M. to gather her belongings. B.M. went upstairs and told defendant and Margaret that she was leaving because she was no longer willing to endure physical and sexual abuse. Defendant told B.M., "If you say anything, I will . . . kill you guys." Margaret told B.M. to take all her property because they did not want her there anymore. S.M. opened the door and asked if they were beating B.M.

Defendant came out and asked S.M. why they were there. S.M. told defendant, "What you've been doing to me, you started doing to her." Defendant's facial expression changed and he went back inside and locked the door. B.M. eventually came out thefront door. Felix took B.M.'s bag and said they should leave. Chanel exited the car and approached B.M. to try to comfort her.

As B.M., S.M., Josh, Felix, and Chanel walked toward their cars, defendant began following them and frantically and repeatedly told S.M. he wanted to speak with her. S.M. declined and continued walking away. Defendant took a gun from his pocket and shot S.M. in the back of the head, causing her to fall to the ground. Josh attempted to pick her up, and defendant fired the gun three times in Josh and S.M.'s direction, striking Josh in the ribs, right shoulder, and back. Defendant turned to B.M. and shot her in the leg, causing her to fall to the ground. Defendant pointed the gun at Chanel and Felix and pulled the trigger, but the gun only made a clicking noise and did not fire.

Margaret came outside and screamed, "He shot the girls. He shot the girls." Defendant walked casually back toward the house. As he did so, a neighbor came out and asked what had happened. Defendant looked the neighbor in the eye and said, "They wouldn't fucking listen," then went inside the house.

Felix carried S.M. and Josh to Josh's car and drove them and their infant to the hospital. Chanel, who was a registered nurse, stayed behind and rendered aid to B.M. All three shooting victims survived. Josh suffered a collapsed lung and was...