People v. Zermeno

• Decision Date: 17 April 2020
• Docket Number: F076432
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ZERMENO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ZERMENO, Defendant and Appellant.

F076432

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 17, 2020

ORDER MODIFYING OPINION[NO CHANGE IN JUDGMENT]

THE COURT:

It is hereby ordered that the opinion filed herein on April 17, 2020, be modified as follows:

1. In the concurring and dissenting opinion of Justice Smith, on page 3, the first paragraph under the heading "FACTUAL BACKGROUND," should be replaced with the following:

Zermeno and Vargas were childhood friends and neighbors (having grown up together on the same ranch or settlement in Mexico). For the last five years before Vargas's death, they lived together in a small trailer, on a rural property well outside the city limits of Firebaugh. The property belonged to Zermeno's aunt and uncle, M.A. and E.A. M.A. and E.A. lived in a house on the property, on which also stood several trailers that they rented out. M.A., Zermeno's aunt, had known Vargas for a long time as well, as they all hailed from the same hometown in Mexico. Vargas and Zermeno worked in the fields together; they shared a car and went to work together and came home together. M.A. testified that Vargas and Zermeno got along well. At the time of the shooting, Zermeno was 31 years old and Vargas 33 years old.

2. In the concurring and dissenting opinion of Justice Smith, on page 4, the first paragraph under the heading "The Scene of the Shooting," should be replaced with the following:

Lorena E. lived in a trailer next to the one occupied by Zermeno and Vargas. In the early morning hours of May 7, 2015, she was awakened by the sound of Vargas moaning. She looked out and saw Vargas lying on the ground right in front of her trailer. Lorena alerted M.A. and E.A.—the time was between 1:00 a.m. and 2:00 a.m. E.A. went to investigate and found Vargas lying on a haystack, injured but alive. Zermeno was nowhere to be found. Emergency medical services (EMS) were immediately summoned—the call for service came in at 1:47 a.m.—but, by the time paramedics arrived, Vargas was dead from gunshot wounds.

3. In the concurring and dissenting opinion of Justice Smith, on page 45, footnote 15, the second sentence of the second paragraph should be replaced with the following:

EMS were called to the scene at 1:47 a.m., after Vargas was found alive by E.A., and EMS in turn alerted the sheriff's department at 2:09 a.m.

Except for the modifications set forth above, the opinion previously filed remains unchanged.

This modification does not effect a change in the judgment.

SMITH, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

DETJEN, J.

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.

(Super. Ct. No. F15902916)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Francisco Zermeno (defendant) stands convicted, following a jury trial, of first degree murder, during the commission of which he personally used a firearm and personally and intentionally discharged a firearm, proximately causing death. (Pen. Code,¹ §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d).) His motion for a new trial was denied, and he was sentenced to 50 years to life in prison and ordered to pay various fees, fines, and assessments.

Defendant raises four issues on appeal. As to those four issues, we have, as dictated by our Constitution, analyzed whether error occurred in the trial court and whether that error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)² As to those issues, we conclude: (1) Any error in CALCRIM No. 521, as given, was harmless beyond a reasonable doubt; (2) Defendant has failed to establish ineffective assistance of counsel based on defense counsel's failure to request that the jury be instructed on voluntary intoxication; and (3) The trial court did not abuse its discretion by denying defendant's new trial motion; but (4) The matter must be remanded for resentencing with respect to the firearm enhancements.

FACTS

As of early May 2015, defendant and Hugo Vargas lived together in a trailer behind the residence of M.A. and E.A. in a rural area of Firebaugh.³ There were several other trailers there as well, and they formed somewhat of a U-shape. Defendant and Vargas had known each other since they were children and had lived together in the trailer for about five years. M.A. had never seen any friction between them.

Between 1:00 a.m. and 2:00 a.m. on May 7, the woman who lived in the trailer in front of defendant and Vargas was awakened by Vargas moaning and saying he needed help. Vargas was lying on the ground and appeared to be in pain, so she telephoned M.A. and asked her to check on him.

M.A. and E.A. found Vargas dragging himself along the ground. M.A. called 911, then E.A. attended to Vargas as directed by the person on the phone. Paramedics arrived 15 to 20 minutes later. M.A. did not see defendant anywhere. E.A. even yelled his name, but there was no response.

When Fresno County Sheriff's Deputy Bright arrived Vargas was on the ground, basically in the middle of the courtyard area formed by the trailers. A paramedic had already pronounced him dead. Vargas appeared to have two small gunshot wounds to his abdominal area. When the body was moved by coroner's personnel, it was discovered that he also had two gunshot wounds to the back of the head. Three spent .22-caliber shell casings were found nearby. There were two areas of blood on the ground, as well as sunglasses, a hat, and a cell phone. A protective sweep of the trailers was conducted, but no suspect was found. The door to a small trailer was open. Lying in the doorway was a loaded .22-caliber pump action rifle. Its hammer was in the cocked position and it had one round in the chamber.⁴ Subsequent analysis showed the three spent casings were fired from this gun, which had a moveable forearm that had to be pulled rearward and then moved forward by the operator after each round was fired in order to chamber the next cartridge and prepare it to be fired again.

Bright remained on the scene for several hours. He received information from people living on the property that Vargas and defendant had lived in the trailer in whichthe rifles were found. At no time while he was there did Bright see defendant or interview anyone who identified himself as the other resident of the trailer.

Numerous Bud Light cans were found inside and outside the trailer. Four .22-caliber long rifle cartridges were found in various locations inside the trailer. No blood was found inside.

An autopsy revealed that Vargas was shot twice in the abdomen. They were not close contact gunshot wounds. Both bullets were recovered from the body.⁵ Because of the internal organs that were hit, death would have occurred within minutes. With respect to the head, there was an entrance wound and an exit wound. The end of the gun barrel was a minimum of two feet away when the shot was fired. The head injury did not produce significant enough injury or damage to the brain to contribute to the cause of death. The cause of death was liver, right lung, and colon injuries due to multiple gunshot wounds.

There were no injuries to Vargas's hands. Toxicology results showed his blood-alcohol content was 0.07 percent, while the result for his urine was .11 milligrams percent. The blood level of methamphetamine was 96 nanograms per milliliter, a low level, while the urine level was over 8,300 nanograms per milliliter. This suggested use one or two days before death.⁶

Shortly before 6:00 a.m. on May 7, Guadalupe O., a former coworker of defendant and Vargas, received a text message and missed phone call from defendant. When Guadalupe called defendant back shortly after 6:00 a.m., defendant asked for a ride. Guadalupe, who was working near an area of Dos Palos called "the Y," picked defendantup on a dirt road by a canal. Guadalupe could smell alcohol on defendant when defendant, who had been walking, got into Guadalupe's truck. Guadalupe observed no signs of intoxication such as slurred words or loss of balance, however. He did not see any injuries on defendant's person. Defendant said he was coming from Los Banos, but the police stopped him and took his car away that morning, which was why he was walking. He said Vargas was already at work.

On May 11, defendant walked into the lobby of the Corning Police Department and told the dispatcher that he was there to turn himself in, because he killed someone. When questioned by the dispatcher, defendant, who was calm, said it happened on a ranch and that he used a rifle. The dispatcher placed a telephone call to Fresno.

Detectives Maldonado and Galindo drove to Red Bluff that day, and met with defendant at the Tehama County jail, where he was being held. They interviewed defendant in Spanish.⁷ Defendant seemed alert, and said he was okay and had gotten some sleep. When advised of his rights, defendant said he understood. There did not appear to be any communication problems.

Defendant related that he and Vargas grew up next door to each other and had been friends for many years. They worked in orchards. They normally woke at 5:00 a.m. and started work at 6:00 a.m. They got to work, which was outside of Merced, in their car, with one person driving in the mornings and the other driving home. They went to work on May 6. They finished about 4:30 p.m.,...