People v. Venegas

• Decision Date: 07 January 2020
• Docket Number: B292976
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David VENEGAS et al., Defendants and Appellants.

44 Cal.App.5th 32

257 Cal.Rptr.3d 307

The PEOPLE, Plaintiff and Respondent,

v.David VENEGAS et al., Defendants and Appellants.

B292976

Court of Appeal, Second District, Division 8, California.

Filed January 7, 2020

Stephen M. Hinkle, Oceanside, under appointment by the Court of Appeal, for Defendant and Appellant David Venegas.

Brad Kaiserman, Van Nuys, under appointment by the Court of Appeal, for Defendant and Appellant Sebastian Santana.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

WILEY, J.

Sebastian Santana and David Venegas were trying to shoot Juan Vargas but murdered Fabian Acevedo instead. The appellate issues include two evidence problems, several sentencing questions, challenges to the sufficiency of the evidence and to a jury instruction, and requests for hearings under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268. We affirm. Unspecified citations are to the Penal Code.

I

Venegas and Santana were in the Winter Gardens gang, which was locked in a border war with the Fraser Maravilla gang. Vargas was in Fraser Maravilla. Venegas and Santana sought to kill him but instead shot Acevedo, who belonged to no gang and was just passing through.

Santana had a bad history with Vargas. Vargas had wounded Santana’s brother, and Santana had vowed to shoot Vargas on sight if he got the chance.

On the deadly day, Santana and Venegas were out prowling for rivals to shoot. They were not looking for anyone in particular. Any enemy would do. Santana drove a car and Venegas was on a motorcycle along the contested frontier. Santana spied Vargas on foot as he drove by. They made eye contact, prompting Vargas to flee towards a nearby casino. Santana directed Venegas to go shoot Vargas. Venegas rode to the casino’s entrance and gunned down a man he thought was Vargas but who actually was Acevedo. Venegas and Santana fled. Vargas escaped. Acevedo died.

Separate juries convicted Venegas and Santana on all counts. One jury found Venegas guilty of first degree murder, while the second jury convicted Santana of aiding and abetting murder in the second degree.

In addition to a murder sentence, the trial court imposed on Santana a sentence enhancement of 25 years to life for discharging a firearm that caused death. (§ 12022.53, subd. (d).) The court imposed and stayed sentences for lesser gun enhancements. The court followed the same sentencing pattern for Venegas.

II

On appeal, Venegas and Santana have filed separate briefs. Venegas makes two arguments for himself alone, while Santana makes four arguments applying only to his case. Then they make two shared arguments. We proceed in that order.

A

We begin with Venegas’s arguments.

Venegas’s first argument concerns evidence. This evidence was a series of text messages from Santana to his brother, who was not a defendant and who did not testify. These texts were admissible.

The prosecution obtained the texts from Santana’s brother’s phone. An officer read them to Venegas’s jury. Venegas does not challenge this process. Rather Venegas claims the texts were inadmissible hearsay and violated the Confrontation Clause.

Venegas trains his attack on five texts Santana sent to his brother. All five involved Venegas, whom Santana called "Sponge." These messages relate to an unchallenged earlier text, which was a photo of a .45 caliber pistol. Other evidence suggested Venegas used this gun to kill Acevedo.

Evidence analysts must pay close attention to the precise words or things at issue. So we quote the five challenged messages, adding bracketed context for clarity:

1. "[S]ee if sponge wants to sell that for five [hundred dollars]. I just want [to] get rid of [the gun]."

2. "[S]ponge just texted me.... [$520 is a] done deal."

3. "I’ll have Sponge meet you somewhere and give it to you. And you’ll go sell it."

4. "[S]ponge is only getting $450."

5. "[S]ponge said he’ll drop [the gun] off before 5:00... Be careful and drive normal. Stash it real good."

We follow a standard agenda to determine admissibility.

First, the statements were relevant. The prosecution claimed this gun was the murder weapon. Combined with other proof, this series of messages tended to show Venegas and Santana had access to the murder weapon before the shooting and were trying to dispose of it soon afterwards. Relevance is obvious.

Second, these texts were not unfairly prejudicial. The evidence presentation was brief and lacked visceral impact. The court exercised sound discretion under section 352 of the Evidence Code.

Third, these texts were not hearsay. They were not offered for the truth of the matter asserted. (See Evid. Code, § 1200.)

For instance, take the message that "[S]ponge said he’ll drop [the gun] off before 5:00." The prosecution did not offer this evidence to prove Venegas would, or did, drop off a gun before 5:00. This evidence was not for the truth it asserted. Rather, it was to show Venegas and Santana were working to get rid of a gun. This tended to show consciousness of guilt and is textbook nonhearsay.

Nor did the prosecution offer the statement "[$520 is a] done deal" to prove $520 truly was a done deal. Nor was "[S]ponge is only getting $450" offered to prove Sponge would get $450. All this back-and-forth was offered for the nonhearsay purpose of consciousness of guilt, not to establish a dollar amount or to show Sponge’s cut. The texters were discussing how to dispose of the .45. For the proponent of the evidence, deal terms and dollar sums were hardly the point.

And so on. Each statement was nonhearsay. (See, e.g., People v. Dalton (2019) 7 Cal.5th 166, 232, 247 Cal.Rptr.3d 273, 441 P.3d 283.) The trial court rightly admitted this evidence.

Venegas was entitled to a limiting instruction, but it was his burden to request it, and his option to abstain from the request. (See Evid. Code, § 355 ; People v. Valdez (2012) 55 Cal.4th 82, 139, 144 Cal.Rptr.3d 865, 281 P.3d 924.)

Venegas’s tactical decision to forgo a request for a limiting instruction was customary. Many effective trial lawyers do likewise. A good trial lawyer can share the Supreme Court’s doubts about the utility of limiting instructions. (See Bruton v. U.S. (1968) 391 U.S. 123, 132–133 & fn. 8, 88 S.Ct. 1620, 20 L.Ed.2d 476.) Experienced trial lawyers may worry limiting instructions can simply underline evidence they would rather not highlight. And there can be some strategic advantage in minimizing objections, for familiar reasons. Venegas’s lawyer made a defensible decision that Venegas cannot now protest.

Venegas incorrectly claims this evidence violated Crawford v. Washington (2004) 541 U.S. 36, 59–60 footnote 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ), but Crawford does not apply to nonhearsay. (See also People v. Hopson (2017) 3 Cal.5th 424, 432, 219 Cal.Rptr.3d 717, 396 P.3d 1054.)

Venegas’s second argument is about sentencing. He argues the court erred by imposing a concurrent term on count two instead of staying the sentence under section 654. Count two was possession of a firearm by a felon. Count one was murder. The jury convicted Venegas on both counts. The court imposed a seven-year concurrent sentence for count two and a gang enhancement.

This argument errs because the trial court correctly construed its obligations under section 654.

The pertinent law begins with section 654, which prohibits multiple punishments for a single act or course of conduct. ( People v. Ramirez (2006) 39 Cal.4th 398, 478, 46 Cal.Rptr.3d 677, 139 P.3d 64.) Whether an offense is an indivisible course of conduct is a fact question. We uphold the trial court’s ruling when substantial evidence supports it. ( People v. Brents (2012) 53 Cal.4th 599, 618, 136 Cal.Rptr.3d 66, 267 P.3d 1135.) This standard of review is exceedingly deferential. ( People v. Lopez (2011) 198 Cal.App.4th 698, 717, 129 Cal.Rptr.3d 583.)

With respect to additional punishment for possessing a gun, the conduct is divisible, and additional punishment therefore proper, so long as Venegas purposefully possessed the gun before the murder took place. ( People v. Jones (2002) 103 Cal.App.4th 1139, 1144, 127 Cal.Rptr.2d 319 ( Jones ).)

This question boils down to whether Venegas possessed the gun at the beginning of his motorcycle ride or whether he got it only after he arrived at the murder scene.

Substantial evidence supports the trial court’s determination Venegas had the gun before arriving at the crime scene. The evidence was Venegas was on the hunt. We indulge all inferences favorable to the trial court’s determination under this standard of review. The logical inference is the hunter armed himself before the hunt. That is how hunts usually work. Moreover, no evidence or logic suggested someone handed Venegas the gun at the scene, or that Venegas happened upon a loaded .45 on the street. Such events are uncommon. The reasonable inference is Venegas began his motorcycle ride with the gun. Thus Venegas purposefully possessed the gun before he drew it to shoot Acevedo. The trial court decision was correct.

B

We now turn to Santana’s four issues.

Santana challenges the sufficiency of the evidence for his aiding-and-abetting conviction of the murder of Acevedo. Santana does not dispute he directed Venegas to shoot Vargas or that Venegas did shoot Acevedo. Santana precisely targets his argument. He postulates an imaginative alternative: that perhaps Venegas shot Acevedo, not by mistake, but because Venegas — after getting Santana’s instruction "shoot Vargas" — for some unexplained reason formulated an independent decision to shoot Acevedo instead of Vargas.

This creative argument founders on the standard of review, which requires us to review the record in the light most favorable to the prosecution.

( People v. Virgil (2011) 51 Cal.4th 1210, 1263, 126 Cal.Rptr.3d 465, 253 P.3d 553.) This standard of review requires us to...