People v. Moreno

• Decision Date: 14 March 1991
• Docket Number: No. F011019,F011019
• Citation: 228 Cal.App.3d 564,279 Cal.Rptr. 140
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fermin Fredric MORENO, et al., Defendants and Appellants.

Page 140

279 Cal.Rptr. 140

228 Cal.App.3d 564

The PEOPLE, Plaintiff and Respondent, v. Fermin Fredric MORENO, et al., Defendants and Appellants.

No. F011019.

Court of Appeal, Fifth District, California.

March 14, 1991.

Certified for Partial Publication. ^*

Review Denied May 30, 1991.

[228 Cal.App.3d 566] James E. McCready and Cliff Gardner, San Francisco, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson and Jane N. Kirkland, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

In what is apparently a case of first impression, we will hold that the special circumstances jury trial provision of PENAL CODE SECTION 190.4¹, subdivision (a) is not mandated by the California Constitution.

STATEMENT OF THE CASE

In information number 25143 Fermin Fredric Moreno and his brother, Fernando Moreno, (collectively "appellants") were charged with the murder of Henry Woods (§ 187), special circumstances (§ 190.2, subd. (a)(17) ), attempted robbery (§§ 211, 664), and burglary (§ 459). Personal use of a deadly weapon (knife) enhancements (§ 12022, subd. (b) ) were alleged for each count.

Jury selection began on December 4, 1987, but had not been completed on April 12, 1988. Appellants and the People then reached an agreement whereby a second murder charge (the Duenas murder) awaiting preliminary hearing was consolidated with the Woods case, appellants waived preliminary hearing on the Duenas charges and their right to a jury trial, and the People waived the death penalty.

The Duenas complaint, filed in the superior court the following day and serving by stipulation as an information, charged appellants with murder (§ 187), special circumstances (§ 190.2, subds. (a)(2), (a)(3), and (a)(17) ), robbery (§ 211), dissuasion of a witness by force (§ 136.1, subd. (c)(1) ), and, as to Fernando only, possession of a deadly weapon in jail (§ 4574). As to the murder and robbery counts, appellants were each additionally alleged to have personally used a deadly weapon (knife). (§ 12022, subd. (b).)

After a court trial of the consolidated cases, appellants were convicted in the Woods case of first degree murder with special circumstances (committed while engaged in the commission of burglary and the attempted commission of robbery), burglary, and attempted robbery. In each of the three counts, the court also found the personal knife use enhancement true as to each appellant.

In the Duenas case the court found both appellants guilty of first degree murder with a special circumstance (multiple first degree murder convictions in the proceeding). The court, however, found insufficient evidence to support a special circumstance of murder committed in the course of a felony. The personal use enhancement was found true as to each appellant. Appellants were found not guilty of the remaining three charged offenses.

Prior to sentencing, appellants moved to strike the special circumstance findings pursuant to section 1385. The motion was denied, and appellants were given identical sentences: two consecutive life terms of imprisonment without possibility of parole with two consecutive one-year enhancements for personal use of a knife. Sentences for the attempted robbery and burglary were stayed pursuant to section 654.

Appellants timely appealed.

FACTS

Duenas Murder

In May 1987, appellants lived with their mother in an apartment building in Visalia. The rear of the apartment building faced the rear of the Cielito Lindo, a neighborhood bar or restaurant. The rear area of the Cielito Lindo property was separated from the apartments' backyard area by a chain link fence. There was a hole in the fence large enough for an adult to pass through, close to the apartment where appellants lived.

At about 7:30 p.m. on May 6, Visalia Police Officer Gary James responded with his partner to the Cielito Lindo where they found the body of Ramon Duenas in the fenced area behind the building. The body was adjacent to a restroom area at the rear of the building, and there were apparent blood spatters in the sink and on the doorjamb. The toilet seat was up, and there appeared to be urine in the bowl; when Duenas' body was rolled over, it was discovered that his fly was open and his genitals exposed. Duenas was clutching a small amount of money, and nearly $100 was found in his pockets. An autopsy revealed Duenas had received two fatal knife wounds; one a downward blow from the base of the neck into the chest cavity, the other a skull penetration to the side of the left eye resulting in a brain laceration. In addition, Duenas had a minor defensive wound on his left hand.

Several officers examined the apartment backyard area on the other side of the chain link fence. Officer James noticed Fernando leaning out of appellants' bedroom window, which faced the site where Duenas' body was found. When questioned by James, Fernando denied seeing or noticing anything but seemed very interested and slightly nervous as James searched the area near the fence for physical evidence. Through the window, James saw Fermin seated on a bed during this time but did not recall him responding to any questions. Officer David Salazar also came to appellants' window, and Fernando again denied having noticed any disturbance.

Other witnesses suggest that Fernando and Fermin were more than aware of Duenas' murder. Their brother, David Moreno, testified that he was in appellants' bedroom around the time that Fernando spoke with Officer James through the window. Both appellants told David they had stabbed Duenas in the head and throat, apparently because Duenas was going to "burn" them in a cocaine deal. David talked with appellants again the following day, and both again admitted to the stabbing, indicating that their mother had washed their bloody clothes. They told David they had been playing pool prior to going out back with Duenas for the drug deal; then, after killing him, they jumped the fence and buried the knife in the backyard area of the apartments.

Freeman Ramirez testified that he saw appellants on the evening after Duenas' murder. Fermin told him they had killed "some fucking wetback" at the Cielito Lindo. Fernando confirmed the story. Both appeared proud. They specifically stated they had stabbed him twice with a knife.

Woods Murder

Henry Woods lived at 627 N. Bridge, at the corner of Bridge and Grove, in Visalia. On the afternoon of the Duenas killing, May 6, Henry Woods visited his next-door neighbor, Patty Murphy, seeking assistance in removing appellants from his property. Woods indicated that appellants were giving him a bad time. Murphy and several visiting friends accompanied Woods back to his house and directed appellants to leave. Appellants argued for a bit, then Fermin pointed at Woods and said, in a threatening manner, "We'll be back." They then walked away.

When appellants saw Freeman Ramirez on the following evening and told him about the Duenas killing, they also attempted (persistently but ineffectively) to borrow money. Freeman had only $5. "[T]hey wanted enough to get a bottle of wine." Eventually Fernando indicated appellants had to "go take care of some business." It was a little before 6 p.m.

Later that evening, Tammy Abila, Vanessa Madrid and Kim Burkhardt were seated at a picnic table in a park area across the street from Woods' house. The table was 125 feet from Woods' front door. The women observed appellants approach Woods' house and knock on the door. Fermin was carrying a knife. Tammy heard Woods, from inside the house, ask who was at the door. Appellants replied, "It's Fermin and Fernando. Open up the door." When Woods failed to open the door, appellants began kicking it. The door eventually was opened partially, stopped by a chain lock which Fermin tried to detach with the knife. Unable to do so, he went to windows on either side of the door and pushed the knife through.

Finally appellants kicked the door in, splintering the jamb. Kim heard the voice within crying for help as appellants entered the house. Woods had a board, possibly a piece of the doorjamb. Fermin gave his knife to Fernando and took the board from Woods. Tammy saw Fermin hit Woods in the head with the board. She heard Woods yell, "and like his voice got stuck." Shortly thereafter appellants left the house at a run, Fermin throwing a knife down beside the steps as they left. A knife was later recovered from the bushes.

Visalia Police Officer Michael Stow and Reserve Officer John Bassett were first on the scene. While Bassett spoke with witnesses, Stow approached the residence and found Woods, still alive, lying just inside the front door. There was blood on the floor and on Woods' face and waist area; Stow observed a puncture wound in Woods' abdomen. Stow called for an ambulance and asked Woods who had attacked him. Woods responded, "Jimmy knows who they are," and explained that Jimmy also lived at the house. Jimmy Ramirez, Woods' brother-in-law, testified that he had previously witnessed an argument between Woods and Fermin over some missing toothpaste, possibly the day before the murder.

Officer Steven Puder arrived several minutes after Stow and Bassett. Puder spoke with Woods who told him that two guys had broken the door in, saying they wanted his money. When Woods refused, one started stabbing him with a large knife.

Tammy Abila, who knew appellants, gave their names to Reserve Officer Bassett. Before Woods was moved out by the ambulance attendants, Bassett spoke with him. "I asked him if he knew who did it. Without pausing I asked him if he knew Fermin or Fernando Moreno." Woods responded, "Fermin and a guy did it. I am hurting real bad." Woods later died due to loss of blood from his abdominal wounds, one of which transected the renal...