People v. Pineda
| Decision Date | 12 December 2011 |
| Docket Number | B222913 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALVARADO PINEDA et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA268597)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed as modified.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Dennis Alvarado Pineda.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Celeya.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
The two defendants were found guilty of second degree murder and attempted, willful, deliberate, premeditated murder. The jury found true the allegations necessary for gang enhancements and enhancements for personally using and personally discharging a firearm causing great bodily injury or death, even though only one of the defendants could have fired the weapon.
One of the defendants was in custody in Florida. The court in Florida appointed counsel for the defendant in connection with an extradition proceeding and advised defendant not to talk to any police officer and to disclose to any police officer who sought to interrogate him that he had an attorney. Los Angeles police officers went to Florida, and after defendant waived his right to remain silent, defendant confessed to those officers.
We hold that defendant's statements in Florida were admissible. We also hold that as only one defendant could have discharged the firearm as to each victim, the enhancements must be modified accordingly. We otherwise affirm the convictions.
On June 18, 2004, Alexander Betetta attended a family party celebrating his cousin's college graduation. The party was held in the backyard of a residence near 59th Street and San Pedro. Betetta and his brother Enrique Cruz went to the party with Mario Cortez, Carlos Martinez, and other friends. Cruz's common law wife dropped off Betetta and his companions at the party around 11:00 p.m. About 30 persons were present when Betetta and his companions arrived at the party.
When Betetta and the others arrived at the party, there was music playing and people dancing. In the right rear corner of the backyard there was a table with juice and sodas on it. In the left rear corner of the backyard, near the garage, there was a garbage can that contained beer. Defendants Dennis Alvarado Pineda and Juan Carlos Celeyawere standing near the trash can that held the beer. There were three Hispanic males with defendants.
Betetta testified that shortly after he arrived, he observed a man approach the trash can that held the beer. As the man approached the trash can, defendants had serious looks on their faces. Pineda looked at the man. Celeya's hands were balled into fists, but he did not look at the man. The man looked at defendants and turned around and left. Others walked in the direction of the trash can before turning and walking away. Several people who were standing near the trash can also moved away. Betetta then went to the trash can to get a drink. Defendants and one of their companions looked at Betetta and never took their eyes off of him. As Betetta tried to get a drink, Celeya threw his head back and nodded at Betetta. Betetta left because he did not want to "start any trouble."
Betetta testified that as he walked away, he noticed a Hispanic man who was wearing a dark baseball cap with "LA" on it walk toward the "drink area." Defendants and their three companions stepped in front of the man, blocking his path to the drink area. Defendants and their three companions approached the man and asked, "Where are you from?" Initially, the man replied that he did not "gangbang." Defendants and their companions repeated their question and the man replied, "I'm from nowhere." The group persisted, surrounding the man and asking him, "Where are you from?" The group looked angry. Betetta heard the man in the baseball cap ultimately say, "okay" or "SSK." SSK is a tagging crew, thereby making him a "tag banger."1
According to Betetta, during the encounter, defendants and their companions said, "M.S.," "M.S. 13," and "La Mara." One of defendants' companions, a man with dark curly hair, said, The curly-haired man struckthe tag banger in the face. The tag banger grabbed the curly-haired man and they fell to the ground.
Defendants and their companions formed a tight circle. One of defendants' companions turned around toward the crowd and put out his arms to prevent anyone from interfering. As the tag banger struggled with the curly-haired man, Celeya pulled the tag banger away from the curly-haired man. Pineda and Celeya kicked and punched the tag banger. The tag banger managed to stand and Celeya placed him in a choke-hold. At that point, a nickel-plated, semiautomatic handgun fell to the ground from the curly-haired man's waist. The tag banger escaped from Celeya's grip and sprinted toward the driveway.
Betetta testified that the curly-haired man told Pineda to "go get him," referring to the tag banger. Pineda ran toward the driveway followed by two of his companions. Celeya and the curly-haired man remained behind. As Pineda ran, he reached toward his waistband and stumbled. Pineda did not fall, but his hand touched the ground. As Pineda righted himself, he appeared to realize that there was nothing in his hand. Pineda bent over and picked up a small caliber, semiautomatic handgun.
At that point, Cruz approached and crossed paths with Celeya and the curly-haired man. Cruz said, At that point, the curly-haired man punched Cruz in the face. Cruz defended himself and threw a punch at the curly-haired man. Celeya took a step forward, and pulled a semiautomatic handgun from his sweatshirt pocket. Celeya put the handgun next to Cruz's rib cage and fired one shot. Cruz moved toward to the soda table. Betetta followed Cruz.
Betetta testified that as he went to his brother, he turned around and saw Celeya behind him. Celeya pointed his gun at Betetta's chest and pulled the trigger but the gun did not fire. Betetta observed that a shell was jammed in the gun's slide. Celeya attempted to clear the jam, but was unsuccessful. The curly-haired man ran and yelled, Celeya attempted to strike Betetta, but missed. Celeya and the curly-haired man ran toward the driveway.
Betetta turned back to look for his brother. Betetta found his brother on the ground near the soda table. As Betetta attended to his brother, he heard five gunshots coming from the street followed by three additional shots. Betetta administered CPR to his brother, but his brother died from the gunshot wound.
At the same time, Cortez, who was wearing a blue baseball cap with "LA" on it, remained on the sidewalk in front of the residence speaking on his cell phone. Cortez testified that at some point he walked down the driveway toward the party. As Cortez was walking, he heard someone yell, "La Mara." Cortez kept walking. Betetta approached Cortez and asked him if he was okay. Cortez did not understand the reason for Betetta's inquiry. Betetta assisted Cortez to a chair and lifted Cortez's shirt. Cortez had been shot in the stomach and was bleeding.
Later, Los Angeles Police Department Detective Elizabeth Rico interviewed Cortez. Cortez told Detective Rico that a Hispanic man bumped into him and pushed him into a wall. Cortez felt something warm on his stomach but did not know what it was because he did not realize he had been shot. Thereafter, Cortez was shot in his left arm. Believing his assailant was about to shoot him in the chest, Cortez put his head down and was shot in the chin. Cortez testified that he was shot a total of four times—twice in the abdomen, once in the left arm, and once in the chin—and was hospitalized for one month. Cortez was unable to identify the shooter from police photographs and could not identify Pineda or Celeya at trial as the shooter.
Four shell casings and a spent bullet were recovered from the scene. The police did not recover a gun at the scene or in their investigation.
Detective Rico did not interview Betetta until January 17, 2005. Shortly after Cruz's funeral, Betetta drove to Novato, California because he "couldn't be home." During the interview, Detective Rico showed Betetta two photographic lineups. Betetta identified Pineda's photograph in one lineup and stated that Pineda had a gun and ran toward the driveway. Betetta identified Celeya's photograph from the second lineup and stated that Celeya shot Cruz.
Maynor Ayala testified that he attended the party on June 18, 2004. Ayala worked with defendants and knew Celeya's brother "Giovanni." About 11:30 p.m., Ayala saw defendants with Giovanni and "Chuco." Around midnight, Ayala heard a commotion in the area of "Juan Carlos" and "Brons"2 and turned to see what was happening. Ayala then turned away. Shortly thereafter, Ayala heard a gunshot coming from defendants' location. Ayala looked in the direction of the gunshot and saw a man lying on the ground. Defendants and their companions were running outside. Ayala heard at least one more gunshot coming from the direction of...
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