People v. Sendejas
| Decision Date | 26 July 2018 |
| Docket Number | B263449 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ARTHUR SENDEJAS et al., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA420834)
APPEAL from judgments of the Superior Court of Los Angeles County, Edmund Wilcox Clarke, Jr., Judge. As to defendant Gina Sanchez, reversed. As to defendant Arthur Sendejas, affirmed in part, reversed in part, and remanded with directions.
Jerome McGuire, under appointment by the Court of Appeal for Defendant and Appellant Arthur Sendejas.
Melissa Hill, under appointment by the Court of Appeal for Defendant and Appellant Gina Sanchez.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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Two men, one of whom was identified as defendant Arthur Sendejas (Sendejas), a gang member, fired multiple shots at Robert R., who was affiliated with a nonrival gang. After Sendejas's arrest, the police learned from a confidential informant that Sendejas had a copy of the police report of the shooting. Like the original report, the copy in Sendejas's possession contained identifying information about the witnesses to the shooting. Sendejas had received the copy of the report from his cousin, codefendant Gina Sanchez (Sanchez), who worked for the police. Both were arrested.
Following a joint trial, a jury convicted Sendejas of attempted murder, firearm possession by a felon, attempted dissuasion of a witness, and conspiracy to dissuade a witness. The jury also found true gang and firearm enhancements. The jury convicted Sanchez of attempted dissuasion of a witness and conspiracy to dissuade a witness.
On appeal, defendants assert prejudicial discovery violations and evidentiary and instructional errors, errors concerning the prosecution's gang expert testimony, and insufficient evidence to support the convictions and gang and firearm enhancements. We reverse both defendants' convictions for conspiracy and Sanchez's conviction for attempted dissuasion of a witness for insufficient evidence, remand for the trial court to exercise its discretion whether to strike Sendejas's firearm enhancement, and otherwise affirm Sendejas's convictions and enhancements.
Sendejas was charged in a fourth amended information with four felony counts: attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)),1 firearm possession by a felon (§ 29800, subd. (a)(1), attempted dissuasion of a witness (§ 136.1, subd. (c)(2)) and conspiracy to dissuade witness (§ 182, subd. (a)(1)).
As to the attempted murder count, the information specially alleged Sendejas had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and the offense was gang-related and punishable by a life term pursuant to section 186.22, subdivision (b)(5)). As to the attempted witness dissuasion and conspiracy counts, it was specially alleged Sendejas had committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subds. (b)(1)(A), (b)(4)). As to all counts, the information specially alleged Sendejas had suffered one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and one prior serious felony conviction (§ 667, subd. (a)(1)), and had served one prior prison term for a felony (§ 667.5, subd. (b)).
The same information charged Sanchez with two felony counts: attempted dissuasion of a witness and conspiracy to dissuade a witness.
The defendants pleaded not guilty, and Sendejas denied the special allegations. The case proceeded to trial.
Robert R.2 was an "inactive" member of the Metro 13 gang. He was friendly with members of the gang, but he no longer associated with them. Robert R.'s younger brother, Omar R., was a gang detective for the Montebello Police Department.
In September 2012, Robert R. and N.V., his live-in girlfriend, had a violent argument, which Robert R. reported to the Montebello Police Department. Robert R. knew he risked gang retaliation for "snitching" to the police about N.V. who was on parole at the time. N.V. left and moved in with Sendejas, with whom Robert R. later learned she had been having an affair. N.V. and Sendejas began making threatening phone calls to Robert R. Sendejas and Martin V., both Sangra gang members, attempted to confront Robert R. outside his house.
On October 14, 2012, Robert R. was in his backyard, when he saw Sendejas and Martin V. at the nearby gate. The two men yelled "Sangra," and Sendejas fired multiple shots before fleeing with Martin V. The bullets struck a car belonging to K.B., who was visiting Robert R. K.B. telephoned the emergency operator and reported seeing two men, "probably gang members" shootinga handgun over the gate. Neither Robert R. nor K.B. was injured in the shooting.
S.F. was inside the house located in front of Robert R.'s on the same lot. She saw two men approach the backyard and peek over the gate. One of the men yelled, "This is for San . . . " or "This is for S . . . ," and fired five or six shots toward the back house. S.F. told Montebello Police Officer Daniel Contreras that she saw the shooter's face and could identify him. She described the shooter as Mexican, with a moustache, a patch of hair below his bottom lip, and tattoos on his right arm.
After interviewing S.F. and K.B., Officer Contreras wrote a report (the shooting report) and included their identifying information. Later, Robert R. and S.F. separately identified Sendejas as the shooter from a six-pack photographic lineup prepared by Detective Craig Adams. Following S.F.'s identification of Sendejas, Detective Adams showed her a single photograph of Sendejas.3
On November 20, 2012, charges were filed against Sendejas and a warrant for his arrest was issued. Sendejas was arrested on January 16, 2013 and was released on bail.
B.L. (Informant), a former gang member, worked as a paid confidential informant for the Montebello Police Department gang detectives, including Omar R., Robert R.'s brother.Informant knew Sendejas through N.V., the sister of Informant's wife.
On June 11, 2013, Informant told Montebello Police Detectives Cervantes and Adams that Sendejas had acquired a copy of the shooting report from Sendejas's cousin Gina Sanchez, who worked at the Montebello Police Department. Sendejas had picked up the copy from his mother's house. Sendejas's copy was unredacted; it included the witnesses' identifying information.
Informant agreed to try to obtain for the detectives the unredacted shooting report in Sendejas's possession. Informant telephoned Sendejas and offered to show a copy of the report to "Stranger" (a moniker), who was a member of Robert R.'s former Metro 13 gang. The report would serve as "paperwork" to prove Robert R. had snitched to the police. Sendejas agreed to have Informant show Stranger the police report "for cleaning house."
On June 26, 2013, Informant met Sendejas in a parking lot. Informant was wearing a concealed audio recording device that recorded their conversation.4 During the conversation, Sendejas warned Informant to keep the report from getting into "the wrong hands." Sendejas said his attorneys had refused to give him a copy of the unredacted shooting report, and he was not supposed to have it.5
At trial, Informant acknowledged that on October 4, 2013, four days before the preliminary hearing, he told Detectives Adams and Cervantes that Sendejas did not commit theshooting.6 Instead, Informant reported, Robert R. had staged the shooting because he was angry with Sendejas over N.V. and wanted to get Sendejas arrested.7 On direct examination, Informant recanted his October 4, 2013 statements to detectives as "a false story." Informant explained he had been "misled" at the time by emotions and family loyalty.
Sanchez, Sendejas's cousin, was employed by the Montebello Police Department. As a records technician, Sanchez was able to view, modify, download, and photocopy police reports that had been scanned into the Department's computerized records management system. Sanchez also had access to the original hard-copy police reports stored in the master case record file. Her job required that she sign an acknowledgement of the confidentiality of criminal record information. When victims or suspects were provided copies of police reports, witness and suspect identifying information was always redacted.
In the wake of Informant's conversation with Detectives Cervantes and Adams, Diane Cisneros, the Department's records supervisor, began auditing Sanchez's computer activity. The audit revealed that Sanchez had accessed the shooting report on numerous occasions between November 28, 2012 and August 21, 2013 and deleted addresses and aliases from Martin V.'s and Sendejas's criminal records. These datesappeared to coincide with court proceedings and/or police investigations related to the shooting.
On September 13, 2013, the Montebello Police Department devised a ruse that involved scanning a false supplemental report to the shooting report...
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