People v. Sedillo

Decision Date08 April 2015
Docket NumberB248671
Citation235 Cal.App.4th 1037,185 Cal.Rptr.3d 907
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Lisa SEDILLO, Defendant and Appellant.

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.

Opinion

JOHNSON, J.

Defendant Lisa Sedillo appeals her March 2013 conviction of one count of second degree murder (Pen.Code, § 187, subd. (a) ),1 five counts of attempted murder (§§ 664, 187, subd. (a) ), and one count of shooting at an inhabited dwelling (§ 246). The convictions arise out of a gang-related shooting on December 1, 1992 that occurred outside a home in Long Beach. Francisco Moreno, the actual shooter, was convicted in 1995 of murder and attempted murder. Defendant was the driver of the getaway car, and although witnesses identified defendant from a photo array, no witness was able to identify defendant at a live lineup, and as a result, defendant was not charged in connection with the crime. In 2010, a wiretap of defendant's phone in an unrelated matter recorded statements in which defendant admitted her involvement in the December 1, 1992 murder, and in May 2010, defendant was charged in connection with the shooting.

On appeal, defendant contends that (1) the attempted murder and shooting at an inhabited dwelling counts are time-barred; (2) the wiretap evidence was improperly obtained and should have been excluded; (3) the trial court abused its discretion in several key evidentiary rulings; (4) her convictions for attempted murder are not supported by substantial evidence and the trial court incorrectly instructed the jury on attempted murder; (5) the trial court harbored bias against expert eyewitness testimony; and (6) the trial court committed sentencing error. We affirm defendant's conviction on the murder count, reverse her convictions on the attempted murder counts, and remand for a determination of whether the statute of limitations on the shooting at an inhabited dwelling count has expired.

BACKGROUND

In June 1995, Moreno was convicted of the December 1, 1992 murder of Jason Bandel, and the attempted murders of David Huizar, Juan Carpio, Nicole Valle, Mandi Montez, and Maria Lerma.

An information filed October 11, 20112 charged defendant with the December 1, 1992 murder of Jason Bandel (§ 187, subd. (a) ; count 1), the attempted murders of David Huizar, Juan Carpio, Nicole Valle, Mandi Montex, and Maria Lerma (§§ 664, 187, subd. (a) ; counts 2–6), and shooting at an inhabited dwelling (§ 246; count 7). The information further alleged that the attempted murders were willful, deliberate and premeditated.

A. Prosecution Case
1. Eyewitness Testimony of the Shooting

On December 1, 1992, between 3:45 p.m. and 4:00 p.m., a wake was being held for Rafael Presidio, known as “Keeper,” who was a member of the KOS tagging crew in Long Beach. Mourners gathered at the home of brothers David Huizar, Ricardo Huizar (Ricky), and Juan Carpio at the corner of 20th Street and Myrtle Avenue. Several people were sitting on the front steps of the house. Maria Huizar, the mother of the brothers, was inside the house, as were several members of Presidio's gang. The house is located in Barrio Pobre gang territory.

Maria Alarcon, who was walking down 20th Street, witnessed the shooting. She saw a man, on foot, shoot at the group of people in front of the Huizar home, which was about a half a block away. Alarcon could not tell whether the pistol the man was holding was wrapped in a towel or a sheet. Alarcon hid in some bushes and saw the man run toward a waiting white car parked on Myrtle driven by a woman. Alcaron observed that the woman was thin with shoulder length curly hair. The car drove away quickly, went down an alley, and turned on 20th Street. Alarcon was worried about her children, and she ran down the same alley towards her house. After she made sure her children were safe at home, she went back through the alley to the Huizar house. When the white car went by again about five minutes later Alarcon could see it was the same woman. She could see the woman's face.

Mandi Montez,3 who was one of the guests at the wake, was shot in the leg. The shooter was on foot and shouted, “East Side Longo.”4 Case testified at the trial of Moreno, who was known as “Whisper,” and identified him as the shooter.

Juan Carpio was sitting on the porch when he was shot. He heard someone yell “East Side Longo.” Out of the corner of his eye he saw someone walking up at a quick pace. Carpio turned for a “split second” and saw a figure with a rifle or a long gun. He turned and ran around the corner of the house. When he came back to the front of the house he saw Montez, Valle, his brothers and Bandel lying on the ground. Carpio heard from 15 to 17 shots.5 Carpio saw that Huizar had been shot in the buttocks. Bandel was lying on his back and gasping for air. Bandel tried to catch his breath and then he stopped breathing. Carpio had made it inside the house, but he had also been shot.

Maria Huizar, who was inside the house, was looking out the front screen door. She could tell the shots were coming from 20th Street (20th). She looked toward where she heard the shots and saw someone carrying a white bundle. Before the shooting she had seen a white car go by on Myrtle Avenue (Myrtle). The driver had light-colored shoulder length hair.

Esperanza Ramirez was living in the area of 20th and Myrtle. She heard gunshots. Ramirez ordered her daughters to get on the floor. She looked out the window and saw a car go down the alley. The driver was a woman and there was a male passenger. The woman's hair was not black.

2. Police Investigation

Police recovered ten .223-caliber expended bullet casings at the scene of the shooting. The murder weapon was never found.

Bandel had four gunshot wounds

. He had been shot in the abdomen, right arm, and chest.

Officer Timothy Cable of the Long Beach Police Department (LBPD) showed a six-pack to Alarcon and Ramirez; both women identified No. 3 (defendant) as the driver of the white car. Unlike the other photographs, which were mug shots with a gray background, defendant's photo was a DMV photo with a blue background. At a live lineup, neither woman selected defendant as the driver of the white car.

About six to seven weeks after the shooting police arrested defendant and interviewed her. Defendant denied involvement in the shooting and denied knowing Moreno. At the time of the shooting defendant claimed to be at the home of her boyfriend.

Detective Hector Gutierrez of the LBPD went to defendant's home on May 20, 2010, to serve a search warrant. Police recovered four newspaper clippings from the house, one of which was about the Bandel shooting.

3. Wiretap Evidence

In a March 6, 2010 recording between defendant and an unidentified male, defendant boasts that [she] used to run with the Malditos ... all day. The Malditos those were my boys ... that was my clique.” Defendant talks about her “big homie” Whisper and how he taught her everything she knew. [H]e's doing fucking life and I'm out here walking free. I owe that ... like I told him I owe you my life homie. You took the fuckin blame for everything and I'm walking free.... [¶] ... [¶] And ever since then it's been eighteen years.”

On March 16, 2010 at 9:48 a.m., defendant told Jose Brito that Whisper had gotten caught with the gun and had taken all of the blame. Witnesses had picked her in the photo array, but did not identify her in the live lineup. Her boyfriend “Green Eyes” had given her a good alibi. In an earlier conversation defendant said, “So, for 18 years, since [Whisper has] been inside ... I've been with him every fucking step of the way. Whatever he needs from me, I always come through.”

On March 31, 2010, defendant spoke with Ruhani Bustamante, who asked her whether she remembered “Keeper” or “Creeper” from KOS who “got killed.” Defendant responded, “Yeah, yeah. That was me and him.” Defendant talked about how she used to be filled with anger and hate, when she saw one of her enemies at the mall, she would spit at them. If they had a baby with them, she would throw the baby out of the car seat.

4. Other Evidence

The court took judicial notice that Moreno was convicted in June 1995 of the murder of Bandel, and the attempted murders of Huizar, Carpio, Valle, Montez, and Lerma.

B. Defense Case

On May 8, 2010, Detective Hugo Cortes with the LBPD interviewed Alarcon. In the interview, Alarcon told them she was inside the house when she heard the shooting. Alarcon also told him that she first saw the white car when the man got out of the car and began shooting. The car turned down the alley with a screeching of tires and passed through the alley again. Alarcon saw a woman driving the car and there were two men in it. The first time Alarcon saw the car the shooter was driving and the woman was in the passenger seat.

Martin Flores, a gang expert, testified that gangs are composed of youths ages 13 to 24 and are territorial and race-based. A gang member's reputation will increase if he or she commits a violent crime for the gang, and a gang member's status in the gang increases by association with a gang's more senior members. A gang member who has avoided prosecution for a crime achieves higher status in the gang through bragging about the crime and can maintain a connection with other gang members who have been convicted. If a gang member is suspected of lying, his or her status will drop within the gang.

Sarah Savell owned a triplex apartment property near 20th and Myrtle in Long Beach. At 3:45 p.m. on December 1, 1992, she heard gunfire. She saw a Hispanic man with a rifle wrapped in a towel. In the alley was a gray Honda Civic hatchback. The man got into the Honda's...

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