People v. Villasenor
| Decision Date | 12 November 2015 |
| Docket Number | C071432 |
| Citation | 242 Cal.App.4th 42,194 Cal.Rptr.3d 796 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Gerardo VILLASENOR, Defendant and Appellant. |
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinezand Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Gerardo Villasenor, a Sureño gang member, shot two rival Norteño gang members on two separate occasions. He was 17 years old at the time of the shootings. With respect to the first shooting, defendant was charged with one count of attempted murder (Count One) and one count of shooting at an occupied motor vehicle (Count Two). With respect to the second shooting, he was charged with one count of attempted murder (Count Four) and one count of shooting from a motor vehicle at another person outside that vehicle (Count Five).1Each count alleged a gang enhancement; with the exception of Count Two, each count also alleged defendant personally and intentionally discharged a firearm causing great bodily injury. After the trial court severed trial on the counts relating to the first shooting (first trial) from trial on the counts relating to the second shooting (second trial), separate juries found defendant guilty of each crime and found each enhancement allegation to be true. Defendant was sentenced to serve an aggregate indeterminate prison term of 50 years to life, plus an aggregate determinate prison term of 24 years, eight months.
On appeal, defendant contends the trial court prejudicially erred and violated his federal constitutional rights by admitting into evidence statements defendant made to police after he invoked his right to remain silent. Specifically, defendant argues he clearly and unequivocally invoked his right to remain silent during his interrogation by telling the interrogating officer—13 times in the span of 14 minutes—to take him home, and during this period of time further told the officer to call his parents so they could pick him up. He also argues the interrogating officer's refusal to honor his invocation of the right to remain silent rendered the remainder of his statements involuntary.
We agree defendant invoked his right to remain silent. Because the interrogation should have stopped when this occurred, but did not, the admission of defendant's subsequent statements violated his rights under Miranda v. Arizona(1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(Miranda). However, we also conclude the trial court's error in admitting these statements was harmless beyond a reasonable doubt. We reject defendant's related claim that statements made after he invoked his right to remain silent were involuntary under the totality of the circumstances.
Defendant also asserts the trial court prejudicially erred and violated his state and federal constitutional rights in the second trial by denying his request for a removal order for a proposed defense witness, who was an inmate in an out-of-county prison at the time of trial, thereby preventing him from calling a necessary and material witness, the evidence is insufficient to support his convictions, and a clerical error in the abstract of judgment must be corrected. We disagree with the first two contentions. Because defendant's showing of necessity and materiality was lacking, the trial court neither abused its discretion nor violated defendant's constitutional rights by denying his request to remove this particular inmate from prison. The evidence was also more than sufficient to support defendant's convictions and the enhancement findings with respect to each shooting. We do, however, agree the abstract of judgment must be corrected. We therefore order correction of the abstract of judgment and affirm the judgment.
We recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. ( People v. Rodriguez(1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.) However, because we conclude there was a Mirandaviolation, we omit from our factual recitation any statements defendant made to police after he invoked his right to remain silent.
Armando Lopez was a member of the Norteño criminal street gang and routinely wore red to signify his membership in the gang. During the early morning hours of January 24, 2010, he and three of his roommates left a party and returned to their house on Kesner Avenue in North Sacramento, near Del Paso Heights. One of the roommates drove another roommate's car to and from the party. On the way home, they stopped to pick up some fast food. Each of the roommates had been drinking. Lopez appeared to be the most intoxicated. When the other roommates got out of the car to bring the food into the house, he stayed in the back seat “mumbling.” His roommates decided to leave him there while they went inside to eat. A short time later, Lopez managed to get out of the car. But instead of coming inside the house, he walked over to his car, which was also parked on the street in front of the house, and got into the driver's seat.
As Lopez was changing cars, a group of Sureños was driving through the neighborhood. Raquel Benavidez, seated in the back seat behind the driver, testified the driver was Kristen Clancy (who went by the nickname “Huera”), defendant (who went by the nickname “Lalo”) was seated in the front passenger seat, defendant's older brother Benjamin (who went by the nickname “Playboy”) was seated in the back seat behind defendant, and Gisela Chaveste (who went by the nickname “Bubbles”) was seated in the middle of the back seat. According to Benavidez, when they passed a Mexican man sitting in a car on the side of the street, either defendant or his brother told Clancy to stop the car, which she did. Defendant and his brother got out of the car and walked over to the man. Defendant asked: Benavidez understood these questions to be a gang-related challenge. Defendant then reached into the car and lifted up the man's shirt. Seeing a red belt, defendant said, “he's a Norteño,” pulled out a handgun, and shot him twice. Defendant and his brother then got back in Clancy's car and the group drove away as defendant said: “I hope he dies.” Benavidez's testimony was largely consistent with prior statements she made in March 2010 to a school counselor and to a police lieutenant who was called by the counselor.
The man defendant shot was Lopez. One of the bullets passed through the back of Lopez's neck and then struck the passenger side door, where it remained until recovered by police. The other bullet struck Lopez in the shoulder, shattered his clavicle, fractured one of his ribs, and then lodged near his vertebral column, where it remained at the time of trial. His roommates heard the gunshots, came outside to investigate, and found Lopez sitting in his car, bleeding from his neck and shoulder. One of Lopez's roommates asked him what happened, but he “wasn't really making any sense.” Another roommate called 911. Police were the first to arrive at the scene. One of the responding officers, who stayed with Lopez until emergency medical personnel arrived, asked him if he knew who shot him. Lopez said he did not. A short time later, Lopez was transported to University of California at Davis Medical Center. He survived his encounter with defendant.
Three days later, a detective with the Sacramento Police Department spoke with Lopez at the hospital. Lopez admitted to being a Norteño and confirmed he was wearing a red belt the night he was shot. Thereafter, in April 2010, after Benavidez provided her statement regarding the shooting, the detective again contacted Lopez and showed him several photographic lineups, one of which included defendant and another included Benjamin. Lopez did not positively identify anyone in the lineups. However, according to the detective, he became emotional and seemed on the verge of crying when he looked at the lineup containing defendant's photograph.
As mentioned, defendant's brother Benjamin was originally charged with attempted murder and shooting at an occupied motor vehicle. He testified in his own defense, denying he was involved in the shooting. According to Benjamin, he and defendant went to a party on West Silver Eagle Road, also in North Sacramento, but closer to the Norwood neighborhood. Around midnight, defendant left the party with an undisclosed friend. Benjamin stayed behind with one of his friends (who went by the nickname “Peewee”) to steal cars from around the neighborhood and bring them back to the house. He did so to impress “some guys” at the party who were studying to become automotive technicians at a local technical institute. Other than four or five short trips to steal cars, Benjamin stayed at the party until around 4:00 a.m., at which point he left the party with Peewee. Benjamin denied seeing his brother, Clancy, Benavidez, or Chaveste during the early morning hours of January 24 and further denied being in Clancy's car. This portion of Benjamin's testimony was corroborated by evidence he wore an ankle monitor at the time of the shooting that did not register his presence at the crime scene. This testimony was also corroborated by stolen car reports.
During cross-examination, after a break in the proceedings, Benjamin stated he remembered defendant briefly coming back to the party with “a group of friends” around 2:00 a.m. According to Benjamin, there were “no females” in this group. Benjamin admitted calling defendant at 3:37 a.m., which was right around the time Lopez was shot. As he explained the reason for the call, someone had taken one of the cars he had previously stolen that night, and he called his brother to ask if someone in defendant's group had...
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