People v. Ybarra, No. F047855.

• Court: California Court of Appeals
• Writing for the Court: Gomes
• Citation: 149 Cal.App.4th 1175,57 Cal.Rptr.3d 732
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald Enrique YBARRA et al., Defendants and Appellants.
• Decision Date: 18 April 2007
• Docket Number: No. F047855.

57 Cal.Rptr.3d 732 149 Cal.App.4th 1175 The PEOPLE, Plaintiff and Respondent,
v.
Ronald Enrique YBARRA et al., Defendants and Appellants. No. F047855. Court of Appeal, Fifth District. April 18, 2007. As Modified May 9, 2007.

[57 Cal.Rptr.3d 735]

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Enrique Ybarra.

Sharon Giannetta Wrubel, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant Hugo Cernas.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOMES, J.

Gang warfare shootings in Fresno one night led to verdicts finding two members of the Floradora Street Bulldogs criminal

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street gang—Hugo Cernas and Ronald Enrique Ybarra—guilty, inter alia, of the first degree special circumstances murder of a man who was not a gang member and the willful, deliberate, and premeditated attempted murders of a pregnant woman and another man, neither of whom was a gang member, either. Cernas and Ybarra raise numerous issues on appeal. We will vacate both sentences in toto and remand to the trial court with directions but otherwise will affirm both judgments.

FACTUAL HISTORY

On October 5, 2001,¹ shortly after 7:00 p.m., someone in a BMW yelled out to Ybarra, "What's up Sur?" Ybarra yelled back, "Bulldog." From inside the BMW, someone fired several shots at him from a handgun at point blank range but missed him. Sur is short for Surenños, a rival criminal street gang.

Shortly after 9:30 that evening, Ybarra, Cernas, and another male, all armed with guns, stepped out of a large car "between a gray and a blue" in color, Walked toward a house that was "a perceived Sureño location" where Gilbert Medrano, his pregnant niece Mercedes López, and his friend Álvaro Romero were sitting outside talking, and opened fire. Ybarra's father owns a sky blue Lincoln Town Car.

Bullets struck Medrano in the face, López in the leg and stomach, and Romero twice in the back and once in the hip. Medrano survived with a bullet lodged between his cervical vertebrae. López, who had a Caesarian section and a hysterectomy, and her daughter, who was born a month prematurely with a scratch mark from a bullet on her back, both survived. Romero died at the scene. A gang expert characterized both shootings as gang warfare between Bulldogs and Sureños.

PROCEDURAL HISTORY

In count 1, a jury found Cernas and Ybarra guilty of the first degree murder (§ 187, subd. (a)²) of Romero, found true as to each the allegations of intentional murder by an active criminal street gang member (§ 190.2, subd. (a)(22)), personal use of a firearm (§ 12022.5, subd. (a)(1)), and commission of the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)), and found true as to Cernas only the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury or death (12022.53, subd. (d)).

In counts 2 and 3, the jury found Cernas and Ybarra guilty of the willful, deliberate, and premeditated attempted murders (§§ 187, subd. (a), 664) of López and Medrano, respectively, and found true as to each the allegations of personal use of a firearm (§ 12022.5, subd. (a)(1)) and commission of the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)). In count 4, the jury found Cernas and Ybarra guilty of active participation in a criminal street gang. (§ 186.22, subd. (a).)

On count 1, the trial court sentenced Cernas to a term of life without possibility of parole (LWOP) for intentional murder by an active criminal street gang member (§§ 187, subd. (a), 190.2, subd. (a)(22)) and to a consecutive term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury or death (12022.53, subd. (d)) and imposed and stayed a consecutive aggravated term of 10 years for personal use of a firearm (§ 12022.5, subd. (a)(1)) and a consecutive term of 10 years for commission

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of a violent felony by a criminal street gang member (§§ 186.22, subd. (b)(1)(C), 654). On counts 2 and 3, the trial court sentenced him in each count to a consecutive term of life with possibility of parole for willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664) without parole until after service of a minimum of 15 years (§ 186.22, subd. (b)(5)) and to a consecutive aggravated term of 10 years for personal use of a firearm (§ 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member (§§ 186.22, subd. (b)(1)(C), 654). On count 4, the trial court imposed and stayed a consecutive aggravated term of 3 years for active participation in a criminal street gang. (§§ 186.22, subd. (a), 654.) In addition, the trial court, inter alia, imposed a $10,000 restitution fine (§ 1202.4) and a $10,000 parole revocation fine (§ 1202.45) with a stay on the latter fine pending parole revocation.

On count 1, the trial court sentenced Ybarra to a term of life without possibility of parole (LWOP) for intentional murder by an active criminal street gang member (§§ 187, subd. (a), 190.2, subd. (a)(22)) and to a consecutive aggravated term of 10 years for personal use of a firearm (§§ 654, 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member (§§ 186.22, subd. (b)(1)(C), 654). On counts 2 and 3, the trial court sentenced him in each count to a consecutive term of life with possibility of parole for willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664) without parole until after service of a minimum of 15 years (§ 186.22, subd. (b)(5)) and to a consecutive aggravated term of 10 years for personal use of a firearm (§ 12022.5, subd. (a)(1)) and imposed and stayed a consecutive term of 10 years for commission of a violent felony by a criminal street gang member (§§ 186.22, subd. (b)(1)(C), 654). On count 4, the trial court imposed and stayed a consecutive aggravated term of 3 years for active participation in a criminal street gang. (§§ 186.22, subd. (a), 654.) In addition, the trial court, inter alia, imposed a $10,000 restitution fine (§ 1202.4) and a $10,000 parole revocation fine (§ 1202.45) with a stay on the latter fine pending parole revocation.

ISSUES ON APPEAL

Cernas and Ybarra argue two evidentiary issues on appeal. (1) The presence within sight of the jury of a section 868.5 support person during the testimony of three prosecution witnesses violated the due process clause. (2) The exclusion of evidence' of Lopez's misdemeanor welfare fraud violated the confrontation and due process clauses. Additionally, (3) Ybarra argues, on the premise that the photographic lineups were impermissibly suggestive, that his attorney's failure to object to pretrial identifications and an identification at trial constituted ineffective assistance of counsel.

Ybarra argues two instructional issues on appeal. (4) With reference to the criminal street gang crime, the trial court's failure to instruct sua sponte to view accomplice testimony with caution violated the due process clause. (5) The instruction allowing the jury to find true for an aider and abettor the special circumstance of intentional murder by an active criminal street gang member violated the due process clause. Additionally, (6) Cernas and Ybarra argue that one juror's dissuasion of another from asking the trial court for discharge as a holdout juror constituted prejudicial juror misconduct.

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Cernas argues two sentencing issues on appeal. (7) The trial court's lack of awareness of sentencing discretion to impose on the special circumstance first degree murder a youthful offender 25-to-life term instead of an LWOP term requires a remand for resentencing. (8) Since the trial court imposed one firearm enhancement— personal and intentional discharge of a firearm proximately causing great bodily injury or death—and imposed and stayed another firearm enhancement—personal use of a firearm on the first degree murder—the latter must be stricken.

Together, Cernas and Ybarra argue three sentencing issues on appeal. (9) On the premise that the criminal street gang crime is a lesser included offense of the functional equivalent of the single greater crime of first degree murder with a criminal street gang enhancement, the sentence on the criminal street gang crime must be stayed. (10) The imposition of aggravated terms without jury findings on circumstances in aggravation and of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt. (11) Since neither has a sentence that includes a period of parole, the $10,000 parole revocation fines must be stricken.

DISCUSSION

I. Witness Support Person

Cernas and Ybarra argue that the presence within sight of the jury of a section 868.5 support person during the testimony of three prosecution witnesses— López, Medrano, and Medrano's wife Maria (María)—violated the due process clause.³ The Attorney General argues the contrary.

Section 868.5 entitles a prosecuting witness in, inter alia, a murder case to the attendance at trial of one or two support persons "of his or her own choosing" while testifying. Only one support person may accompany the witness to the witness stand, but two are permitted in the courtroom at the same time. (Ibid.) "In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way." (Ibid.) Case law uniformly rejects arguments that section 868.5 is inherently prejudicial, erodes the...