People v. Rios
| Decision Date | 20 December 2019 |
| Docket Number | F074350 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RIOS 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kern Super. Ct. Nos. BF160164A, BF160164B & BF160164C)
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Rios.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant James Rios.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Alex Sanchez.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
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This case arises out of a revenge shooting that wounded Mario B., his wife, Adriana B., and their unborn son.1 Codefendants and coappellants James Rios (James), Anthony Rios (Anthony) and Anthony Sanchez (Sanchez) were charged with three counts of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189)2 3 (counts 1-3), with attached gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds. (d), (e)(1)).4 Anthony and Sanchez were also charged with active participation in a criminal street gang (§ 186.22, subd. (a)) (count 4) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (count 5), with a gang allegation attached to count 5 (§ 186.22, subd. (b)(1)).
At the close of the prosecution's case-in-chief, the trial court granted James's and Anthony's motions to dismiss the attempted murder counts as to Adriana (count 1) and Baby Boy (count 3).5 (§ 1118.1.) The jury thereafter convicted James of the attempted murder of Mario (count 2) and found true the allegation that the attempted murder waswillful, deliberate and premeditated, but found not true the attached gang and firearm enhancement allegations.
The jury convicted Anthony of the attempted murder of Mario (count 2), active participation in a criminal street gang (count 4), and being a felon in possession of a firearm (count 5). As to the attempted murder of Mario, the jury found true the premeditation allegation, the gang enhancement allegation and the firearm enhancement allegation. The jury also found true the gang enhancement allegation attached to the felon in possession of a firearm count (count 5).
The jury convicted Sanchez of all five counts; found true the premeditation, gang enhancement and firearm enhancement allegations attached to the attempted murder counts; and found true the gang enhancement allegation attached to the felon in possession of a firearm count (count 5). In a bifurcated proceeding, the trial court found true that Sanchez had a prior serious felony conviction within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The trial court sentenced James to an indeterminate term of seven years to life in prison for the attempted murder of Mario (count 2).
Anthony was sentenced to an indeterminate term of seven years to life for the attempted murder of Mario (count 2), plus 25 years to life for the firearm enhancement, for a total term of 32 years to life in prison; the court stayed the gang enhancement for court 2. The court also imposed the upper term of three years for the substantive gang offense (count 4), and the upper term of three years for being a felon in possession of a firearm (count 5) with an additional four years for the gang enhancement and stayed these terms pursuant to section 654.
Finally, Sanchez was sentenced to a total indeterminate term of 105 years to life plus a determinate term of 46 years as follows. As to count 2, the attempted premeditated murder of Mario, the court imposed a term of 15 years to life pursuant to section 186.22,subdivision (b)(5), doubled to 30 years to life for the prior strike conviction, plus 25 years to life for the firearm enhancement and five years for the section 667, subdivision (a)(1) prior serious felony enhancement. For count 1, the attempted murder of Adriana, the court imposed the upper term of nine years, doubled to 18 years for the prior strike conviction, plus an additional 10 years for the gang enhancement, 25 years to life for the firearm enhancement, and five years for the prior serious felony conviction. For count 3, the attempted murder of Baby Boy, the court imposed two years four months (one-third of the middle term), doubled to four years eight months for the prior strike conviction, plus an additional three years four months for the gang enhancement (one-third of the middle term), and 25 years to life for the firearm enhancement, with the terms for counts 1, 2, and 3 to be served consecutively.
For the substantive gang offense (count 4), the court imposed the upper term of three years, doubled to six years for the prior strike conviction; and for being a felon in possession of a firearm (count 5), the court imposed the upper term of three years, doubled to six years for the prior strike conviction, plus an additional four years for the gang enhancement, with these terms stayed under section 654.
As we will explain in part VII, post, the court also ordered each appellant to pay restitution fines, fees, and assessments.
With respect to his convictions for the attempted murders of Adriana and Baby Boy, Sanchez claims the trial court erred in instructing the jury on the kill zone theory and the convictions are unsupported by substantial evidence. Sanchez, joined by Anthony, also claims the gang enhancements are unsupported by substantial evidence.
Anthony, joined by Sanchez and James, claims that the trial court erred in its response to the jury's question during deliberations regarding heat of passion and that it erred when it discharged Juror No. 11 for misconduct during deliberations. Anthony also claims that his conviction for being a felon in possession of a firearm is not supported bysubstantial evidence. Finally, Anthony, who was 22 years old at the time of the crimes, claims that trial counsel rendered ineffective assistance of counsel (IAC) by failing to make a record of age-related factors for his future youthful offender parole hearing and he seeks remand for a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).6
James claims his conviction for the attempted murder of Mario is unsupported by substantial evidence. He also claims, joined by Sanchez, that the trial court erred when it discharged Juror No. 11 during deliberations, and he claims, joined by Sanchez and Anthony, that the discharge of Jurors Nos. 3 and 11 coerced the verdict. Finally, he claims, joined by Sanchez, that the trial court erred when it responded to the jury's questions about heat of passion, and he claims, joined by Anthony, that CALCRIM No. 400 on the general principles of aiding and abetting misstates the law. If we deem his challenge to CALCRIM No. 400 forfeited by failure to object during trial, he claims, also joined by Anthony, that he received IAC.
In supplemental briefing, Anthony and Sanchez seek remand to allow the trial court to exercise its discretion to strike the firearm enhancement, given the amendment to section 12022.53 effective January 1, 2018. (Sen. Bill No. 620, approved by Governor, Oct. 11, 2017 (2017-2018 Reg. Sess.) ch. 682, § 2 (Senate Bill No. 620 or Sen. Bill No. 620).) Sanchez also seeks remand to allow the court to exercise its discretion tostrike his prior serious felony conviction enhancement under section 667, subdivision (a), given the recent amendments to sections 667 and 1385, effective January 1, 2019. (Sen. Bill No. 1393, approved by Governor, Sept. 30, 2018 (2017-2018 Reg. Sess.) ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).)
Finally, in further supplemental briefing, Anthony and James, joined by Sanchez, seek relief from the court fee assessments (§ 1465.8, subd. (a), Gov. Code, § 70373, subd. (a)) and restitution fine (§ 1202.4, subd. (b)) imposed on them without an ability-to-pay hearing, pursuant to the Court of Appeal's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The People dispute appellants' entitlement to any relief on their claims.
We conclude that Anthony's conviction for being a felon in possession of a firearm is unsupported by substantial evidence that he constructively possessed the gun used by Sanchez in the crimes and, therefore, we reverse his conviction on count 5. As a result, we will strike the fees imposed by the court that were based on that conviction.
We also agree with Anthony and Sanchez that this matter should be remanded so that the trial court may exercise its discretion to determine whether to strike the firearm enhancements or, limited to Sanchez, the prior serious felony conviction enhancement.
We otherwise reject appellants' claims and affirm the judgments.
The events underlying the crimes in this case occurred on the afternoon of May 5, 2015. Adriana's 16-year-old son, Rick, was living with his paternal grandparents, Dee B. and Manuel G., at their house on Monterey Street in Bakersfield.7 At the time, he wasassociating with the Colonia Bakers street gang but by the time of trial, he was no longer associating with any gang.
James and Anthony, who are brothers, used to live next door to Rick's grandparents and Rick had known...
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