People v. Verdugo

Decision Date02 February 2021
Docket NumberF077101
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. GABRIEL VERDUGO, JR., Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

SEE CONCURRING AND DISSENTING OPINION

INTRODUCTION

This case arises out of a fatal shooting at a bar. The jury convicted defendant Gabriel Verdugo, Jr. of one count of willful, deliberate and premeditated murder with attached sentence enhancements for the personal use of a firearm in the commission of a felony and for the personal and intentional discharge of a firearm causing great bodily injury or death. (Pen Code., §§ 187, subd. (a), 189, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d).)1 The trial court sentenced defendant to a term of 25 years to life for first degree murder, enhanced by a consecutive term of 25 years to life for the personal and intentional discharge of a firearm under section 12022.53, subdivision (d). Pursuant to section 12022.5, subdivision (a), the court also imposed and stayed the upper term of 10 years for personal use of a firearm (§ 12022.53, subd. (f); People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130). In addition, the trial court imposed the minimum restitution fine of $300 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under section 1202.45, subdivision (a), suspended; a court operations assessment of $40 under section 1465.8, subdivision (a); and a court facilities assessment of $30 under Government Code section 70373.

On appeal, defendant claims that the prosecutor misstated the law during closing argument with respect to the issue of deliberation, trial counsel's failure to object to the misstatement constituted ineffective assistance of counsel, the trial court erred in its instruction to the jury on voluntary intoxication and, cumulatively, the errors violated his rights. Defendant also claims, pursuant to the postsentencing decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that he is entitled to relief from the fines and assessments imposed until and unless the People demonstrate he has the ability to pay. Finally, defendant requests correction of a clerical error in the minute order from the sentencing hearing.

The People agree the clerical error in the minute order requires correction, but they otherwise dispute defendant's entitlement to any relief on his claims.

We reject defendant's claims of prosecutorial error, ineffective assistance of counsel, instructional error, and cumulative error, but we order correction of the clerical error in the minute order. With respect to defendant's Dueñas claim, we conclude, in accordance with our recent decision in People v. Montes (Jan. 15, 2021, F078357) ___ Cal.App.5th ___ (Montes), that defendant did not forfeit review of his claim and, given the undeveloped record, we remand the matter to allow the parties to address the issues and develop the record.

FACTUAL SUMMARY2

The victim in this case, Elvis G., arrived at the El Escorpion bar in Bakersfield around 10:45 p.m. one night in August 2015 and sat at the service counter. The manager, Lorena G., knew Elvis from the bar. Lorena hired women to serve male customers drinks and keep them company, and Aricema S., a friend of Lorena's who also knew Elvis from the bar, was working that night, along with several other new employees. Aricema and Elvis had a friendly relationship but just began talking again that night after some sort of falling out several days earlier, and Aricema testified that Elvis was buying another woman drinks to make her jealous.

Ariana S., who was defendant's girlfriend and shares two children with him, was working that night, as was a woman named Rumor. Both were newly hired. Ariana did not care for the job because it made her uncomfortable, and she thought about leaving several times, telling Lorena at one point that she needed to leave because her baby was ill. She stayed, however, and she sat with Elvis at the service counter. They talked and he bought her some drinks. At around 12:20 a.m., Elvis grabbed Ariana's hand and asked her to dance. She said no and he immediately dropped her hand. Ariana testifiedElvis touched her only that one time, he was fine when she said no to dancing, and he did not act disrespectfully toward her.

Defendant arrived at the bar around 1:00 a.m. to pick Ariana up, and he handed Lorena a business card for a marijuana dispensary and left another business card on the bar top. He played pool with some men he appeared to know and drank some beer. Lorena and Aricema were somewhat concerned because defendant and his friends looked like they might have some gang involvement.

Ariana testified that at some point after defendant's arrival, the group of women working had an argument or discussion regarding Elvis going behind the service counter and touching Lorena, and although Ariana did not see Elvis go behind the bar or touch Lorena, she told the others that Lorena liked it. However, Aricema was not aware of any complaints about Elvis, and Lorena denied that there was any argument or conversation regarding Elvis or that he touched her. Lorena said Elvis went into the office with her for a few minutes, but he just wanted to say good-bye. He told her he would not be seeing her again and to be careful because the women she just hired "were not good."

Ariana denied she told defendant that Elvis had grabbed her hand earlier and asked her to dance, but sometime after 1:30 a.m., Lorena saw defendant and his friend, Rumor, leave the bar. They then returned, and Lorena heard Rumor tell defendant that Elvis was disrespectful to her and to kill him.

At approximately 1:39 a.m., defendant, along with some other men, approached Elvis and defendant confronted him. Aricema, who was on the other side of the bar counter from Elvis, said defendant sounded upset and asked Elvis why he was talking to and touching defendant's girl. Elvis looked at defendant, laughed it off, said "[w]hat the fuck?" and "pretty much ignor[ed] him." Aricema told defendant that Elvis was with her, but defendant pulled a gun from his waistband, racked the slide, placed the muzzle near Elvis's left eye, and fired. Elvis fell to the ground and the coroner testified that he died instantly.

Evidenced by footage from various surveillance cameras, defendant left the bar with Ariana after shooting Elvis and handed the gun to another man, who concealed it and walked out of view. Defendant and Ariana left in his car, and he took her to her mother's house. Later that morning, defendant picked her up and, against her will, drove to a motel out of town. After a few days, Ariana arranged for someone to pick her up and take her home. She denied defendant said anything about the shooting or told her why he shot Elvis, and she denied that he threatened her, although she conceded he had gang connections that concerned her.

After the shooting, Lorena locked the bar and left with Aricema. A friend of Aricema's picked her up from Lorena's house, and Lorena contacted a friend who is an attorney for advice. Lorena's friend called 911, and the two of them met sheriff's deputies at the bar around 3:00 a.m.

The bar had multiple surveillance cameras and defendant was quickly identified as the suspect through the camera footage and the business cards he left behind. Defendant was thereafter identified in a photo lineup by multiple witnesses, including Ariana, but almost two years passed before he was located and arrested in Mexico.3

DISCUSSION
I. Prosecutorial Error
A. Background

The jury convicted defendant of willful, deliberate and premeditated murder. On appeal, defendant argues that the prosecutor misstated the law with respect to the definition of deliberation, reducing the prosecution's burden of proof, and that the error was prejudicial under any standard of review. The People contend that defendantforfeited review of his claim because counsel failed to object at trial, the prosecutor did not misstate the law, and even assuming error, it was harmless.

The trial court instructed the jury on first degree murder pursuant to CALCRIM No. 521 as follows:

"The defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances.
"A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."

Relevant to defendant's claim of error, during closing argument, the prosecutor relied on a yellow traffic light analogy to illustrate a rapid but deliberate and premeditated decision; and during rebuttal the prosecutor referred to deliberation while addressing voluntary intoxication. Placed in context, the portions of argument defendant objects to are as follows:

"A common example that is used in describing issues of
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