PEOPLE v. In re Marcos Trevino, on Habeas Corpus.

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Marcos TREVINO, Defendant and Appellant. IN RE: Marcos Trevino, on Habeas Corpus.

Nos. B118891.

Decided: December 21, 1999

Gail Harper, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

The validity of the prior-murder special-circumstance finding in this case, which was based on the defendant's 1978 Texas murder conviction committed when he was 15 years old, and thus at a time when he could not have been convicted in California, depends on whether Proposition 8 applies.   Because we conclude that a special circumstance is technically not an enhancement, we hold the trial court improperly applied Proposition 8, and we reverse the prior-murder special-circumstance finding.

Defendant and appellant, Marcos Trevino, appeals from the judgment entered following his conviction, by jury trial, for first degree murder with a prior-murder special circumstance finding, and with firearm use and prior serious felony conviction findings.  (Pen.Code, §§ 187, 190.2, subd. (a), 12022.5, 667, subd. (a)-(i)).1  Sentenced to a state prison term of life without the possibility of parole, plus eight years, Trevino claims trial and sentencing error.   In a related habeas corpus petition, he claims that he was denied the effective assistance of trial counsel.   The People claim sentencing error.

The judgment is affirmed in part, reversed in part, and remanded.   The habeas corpus petition is denied.

BACKGROUND 

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1.  Prosecution evidence.

Defendant Trevino and his wife, Isabel Montemayora, lived in a duplex in the El Sereno area of Los Angeles.   Others who lived in the area and knew Trevino included the victim, Mario Nunez, Mary Villareal and her fiancé Ronnie Uribe, Vincent Guillen, Gabriel Valencia and Michelle Rino.   About two months prior to the events at issue, Trevino was heard to say that “given the opportunity” he wouldn't get into a fist fight with Nunez, but “that he would just blow him away.”

In the early morning hours of February 15, 1996, Villareal, Uribe, Guillen and Nunez were “partying” at Rino's house, which was a few blocks from Trevino's house.   At about 5 a.m., Villareal and Uribe got into an argument and Uribe left.   Ten minutes later, Villareal, Nunez and Guillen decided to go looking for him.   Nunez and Guillen were very intoxicated; Villareal was sober.   Villareal was upset Uribe had left her, so Nunez put his arm around her and tried to comfort her.   Guillen got mad, called Villareal a tramp and said she wouldn't be letting Nunez put his arm around her if Uribe were around.

When they reached Trevino's house, Gabriel Valencia was standing on the front porch.   Villareal and the others asked Valencia if he had seen Uribe.   Guillen was still calling Villareal names.   Villareal hit Guillen in the face, causing him to stumble down the porch steps.   Guillen went home; he lived a few houses away.   Five minutes later, he returned with a large knife and threatened Villareal.   Nunez got angry and struggled with Guillen, forcing him to drop the knife.   Guillen went back home.

Villareal testified Trevino came out of his house carrying a handgun.   Nunez asked Trevino what he was going to do with the gun, saying, “[A]re you going to shoot me?”   They were both standing on the porch at the top of the stairs.   Trevino ordered Villareal and Nunez to “get the fuck” out of his yard.   Nunez walked right up to Trevino and said, “What the hell [are] you going to do with that, are you going to shoot me or what?”   He told Trevino to put the gun down so they could fight “one on one.”   Valencia said Villareal tried to get Nunez to leave.   Trevino and Nunez continued to argue.   Trevino didn't seem to be afraid of Nunez.   Trevino said to Nunez, “Don't make me do it.”   Trevino fired two shots at Nunez from close range, hitting him twice in the chest.   Nunez fell face down on the porch.   He lifted his head and said, “I'm down.   All right.   I'm down.”   Trevino stepped closer to him and fired a single shot into the top of Nunez's head.   Trevino then pointed the gun at Villareal, told her she was next, and ordered her out of his yard.   Villareal went back to Rino's house and told her what had happened.   Villareal testified that she never saw Nunez threaten Trevino with the knife that had been in Guillen's possession.

Villareal and Rino returned to Trevino's house about 10 minutes after the shooting and discovered that Nunez was no longer on the front porch.   Trevino and his wife were gone.   Trevino's car, which had been there at the time of the shooting, was also gone.   Villareal and Rino left to look for Nunez.   When they returned to Trevino's house a few hours later, they found Nunez's dead and bloodied body near a side entrance, under some “junk” and leaves, and wrapped in blanket.

Police responded to Trevino's house at about 11 a.m. and found Nunez's body.   It was on the right side of the duplex and appeared to have been dragged to that location.   Guillen's knife was found about 12 feet away, underneath a bicycle.   Three nine-millimeter shell casings and two nine-millimeter bullets were found around the porch.

Nunez had been shot twice in the chest and once in the top of the head.   Each of these wounds alone would have been fatal.   A nine-millimeter bullet was removed from his head.   The head wound was consistent with Nunez having been shot while he was lying on the ground.   Soot from one of the chest wounds indicated the gun had been fired from 6 to 12 inches away.   Abrasions on Nunez's back were consistent with his body having been dragged.

On March 5, 1996, Trevino was located and arrested in Brawley.   The gun used in the shooting was never recovered.

In May 1997, after she had testified at the preliminary hearing, Villareal was in the county women's jail on unrelated charges.   Trevino's wife, Isabel Montemayora and another woman came to see her.   The other woman told Villareal that Trevino had sent her with a message.   She said it would be better for everyone if Villareal changed her testimony.   The two women suggested that Villareal say Montemayora had shot Nunez.   Villareal told them she would not perjure herself.   Montemayora warned Villareal that Trevino had put out a “contract” on her and Uribe.

While working as a trustee at the men's jail, where he had been sent on unrelated charges, Uribe ran into Trevino in October 1996.   This was before Villareal had been threatened at the women's jail.   Trevino told Uribe that if he knew what was good for him and for Villareal, he would tell Villareal to change her testimony.   To protect Villareal, Uribe lied and said he no longer had any contact with her.   An hour later, Uribe received a written notice making the same threat.   Uribe reported these threats to the police in May 1997, after learning that Villareal had also been threatened.

2. Defense evidence.

Gabriel Valencia testified he had been staying at Trevino's house when Nunez was killed.   Valencia and Nunez belonged to the same gang, “Sereno Calle Locke Street.”   Valencia didn't know if Trevino belonged to a gang.

Valencia testified he had been inside Trevino's house sleeping when Villareal, Nunez and Guillen began pounding on the front door.   They all seemed to be drunk.   Valencia stepped outside and found Villareal and Guillen arguing.   Villareal hit Guillen in the face.   When Guillen tried to hit Villareal back, Nunez slammed him to the ground.

Nunez yelled into the house to Trevino, “I know you are f-ing in there ․ punk.”   Valencia told Nunez he had better leave or he would get a beating.   Villareal tried to convince Nunez to leave.   Valencia went back inside and tried to go back to sleep.

About 10 minutes later, the pounding on the door resumed.   Valencia got mad and told Trevino that Villareal and Nunez were kicking his door.   Trevino got a gun and went to the front door.   An argument ensued between Trevino and Nunez.   Nunez tried to grab Trevino's gun.   He put his hand around Trevino's neck.   Trevino tried to calm Nunez down.

Nunez asked if Trevino was going to kill him.   Nunez pointed to his own heart and said, “Come on, come on.”   Valencia, who was trying to keep them apart, suddenly realized Nunez had a big knife in his hand and was lunging toward Trevino.   As Nunez grabbed Trevino's shirt, Trevino's gun went off and a bullet hit Nunez in the chest.   Nunez seemed unaffected, however, and lunged at Trevino again.   Trevino told Nunez to leave.   Trevino then shot Nunez in the heart.   Nunez backed up, looked at his chest, raised the knife again and lunged at Trevino a third time.   Trevino fired again at Nunez.   Nunez fell.   Valencia got scared and fled.

According to Valencia, Nunez had a reputation in the community for being violent.   The following reputation evidence was admitted:  “Q.   What is his reputation in the community for violence?  [¶] A.  [Nunez] has a real deep reputation in the neighborhood.   He is a violent person.   A lot of people were feared by him [sic], but they considered him maybe a hit man, whatever.   He robbed a lot of drug connections, you know, he did his deed.   Whatever he wanted to do, he did it his way.  [¶] Q. What is your personal opinion? [¶] A. My personal opinion?   He was down homeboy, he was a crazy fool.  [¶] Q. What about being violent?  [¶] A. That would come with all that, he was violent, yes.”   Nunez outweighed Trevino by about 80 pounds.   Valencia said the reason Nunez didn't like Trevino was because one of Nunez's friends had been spending more time with Trevino than with Nunez.

Although Valencia insisted he was testifying only to make sure an innocent man was not convicted, eight months had passed before he told authorities that Nunez had been armed with a knife and that Trevino had killed Nunez in self-defense.   Valencia admitted that testifying against another gang member could get him killed.

A Los Angeles county sheriff's deputy from the county jail testified that Uribe had been in the county jail from October 21 to December 15, 1996.   It was unlikely, given his short stay, that he had officially been a trustee.

3. Rebuttal evidence.

Detective Peterson testified that during a taped-recorded interview, Trevino had given the following explanation for the shooting.

Trevino was asleep in the back bedroom of his house with his wife.   Valencia came into the room and said Nunez was trying to get in.   Fearing that Nunez might be armed with a screwdriver, Trevino grabbed his nine-millimeter handgun to protect himself.   After waiting about 15 minutes, Trevino decided to go out and talk to Nunez.   He put his gun down on a chair on the front porch.   Nunez was being verbally aggressive.   Valencia came out onto the porch.   Nunez tried to get past Valencia.   Valencia kept Nunez from getting to Trevino.   Nunez told Trevino to shoot him.   Trevino picked up his gun, loaded it and began to walk down the stairs.   Nunez got away from Valencia and tried to slap Trevino.   Valencia was holding Nunez's hand and pushing on Nunez's chest.   Trevino pushed Nunez, causing him to stumble and fall.

Trevino saw Nunez get near a tequila bottle and he got scared Nunez might pick it up.   Nunez grabbed him.   Valencia tried to pull Nunez off, but Nunez grabbed the hand in which Trevino was holding the gun.   The gun went off, shooting Trevino in the leg.   Nunez jumped back.   Nunez again challenged Trevino to shoot him.   Trevino said he didn't want to shoot him.   Nunez kept challenging him.   Valencia told Trevino to give him the gun so he could shoot Nunez.   Nunez was acting crazy.   Nunez and Valencia began fighting and fell on the stairs.   Nunez got up and lunged at Trevino.   Trevino shot him in the stomach.   Nunez clutched his belly, then lunged at Trevino again.   Trevino shot him in the chest.   Nunez fell.   Trevino turned toward Villareal, lowered the gun, and the gun went off again.   Trevino didn't know where the bullet went.   Villareal ran off.   After turning Nunez over and listening to his heartbeat, Trevino wanted to call 911, but Valencia said Nunez was dead.   Valencia left.

Trevino's wife, Montemayora said they should get Nunez to a hospital.   Trevino decided to take him inside instead.   They tried to carry Nunez inside, but only made it to the side of the house.   By this time, Montemayora was hysterical.   Trevino realized Nunez was dead.   Montemayora told him to cover Nunez with a blanket.   Trevino did so.   Then they left the house and drove around looking for Valencia.

Trevino now realized he had shot himself during the struggle with Nunez.   He and Montemayora drove to Brawley and stayed in a vacant house.   Trevino destroyed the gun in a fire.   The next day, they took a bus to Texas.   Trevino left town because he was afraid of Nunez's brother.   He didn't call police because he didn't have a telephone.

DISCUSSION

1.-4.**

5. Prior-murder special circumstance improper.

Trevino contends the prior-murder special circumstance must be stricken because it was predicated on a 1978 Texas murder conviction, a murder committed when Trevino was only 15 years old and at a time when a 15-year-old could not have been convicted for murder in California.   We agree.

Section 190.2, subdivision (a)(2), prescribes death or imprisonment for life without the possibility of parole “for a defendant who is found guilty of murder in the first degree” if the defendant was “convicted previously of murder in the first or second degree.   For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.”  (Italics added.)

This language was construed by People v. Andrews (1989) 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285, which held the defendant's 1967 Alabama conviction for a murder committed when he was 16 years old could serve as the predicate for a prior-murder special circumstance finding in his prosecution for a 1979 California murder.  “Defendant contends the statute's use of the word ‘would’ instead of ‘could’ manifests an intent to limit the special circumstance to those offenses which would, in his words, ‘without doubt have been punishable’ as murder in California.   Had he committed the offense here, defendant argues, it might or might not have been punishable as murder, depending on the determination at the [juvenile] fitness hearing.   Thus, he concludes, since it is not clear he would have been punished for murder had he committed the offense in California, the use of his Alabama murder conviction to support the special circumstance finding was improper.  [¶] The language of the statute does not support defendant's interpretation.   Defendant is attempting to characterize the words ‘would be punishable’ as if they were synonymous with the term ‘would be punished.’  ‘Punishable’ has been defined as ‘ [d]eserving of or capable or liable to punishment;  capable of being punished by law or right.’  (Black's Law Dict. (5th ed.1979) p. 1110, col. 1.) The word does not denote certainty of punishment, but only the capacity therefor.   Any minor between the ages of 16 and 18 who commits murder in California, and has been found unfit to be treated as a juvenile, can be tried and convicted as an adult and thus be liable to punishment as a murderer.”  (Id., at p. 222, 260 Cal.Rptr. 583, 776 P.2d 285.)

The People concede that in 1978 Trevino could not under any circumstances have been convicted in California.6  This is because, at that time, 14- and 15-year-olds came within the exclusive jurisdiction of the juvenile court system.  (See Welf. & Inst.Code, § 203 (non-criminal status of wardship adjudications in juvenile court).) 7  Rather, the People argue the prior-murder special circumstance can be predicated on Trevino's Texas conviction by operation of Proposition 8-the Victims' Bill of Rights enacted by initiative in 1982 (hereafter, “Prop.8”)-which, in relevant part, provides:  “Any prior conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Cal. Const., Art. I, § 28, subd. (f).)

The People rely primarily on People v. Blankenship (1985) 167 Cal.App.3d 840, 851-852, 213 Cal.Rptr. 666, which invoked Prop. 8 in order to impose a prior serious felony conviction enhancement (formerly, § 667;  now, § 667, subd. (a)) based on a Wyoming conviction suffered when the defendant was 15 years old.   But section 667, subdivision (a), is clearly a true enhancement, and thus the language of Prop. 8 regarding the unlimited use of prior convictions “for purposes of ․ enhancement” obviously applies.  “As defined in the Rules of Court, an enhancement ‘means an additional term of imprisonment added to the base term.’  (Rule 405(c), Cal.Rules of Court․”  (People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013, disapproved on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5, 19 Cal.Rptr.2d 233, 851 P.2d 27.)) “Enhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.   That is one of the very purposes of an enhancement's existence.”  (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208, 249 Cal.Rptr. 850, 757 P.2d 1013.)  “While no magic words need be used to identify an enhancement, we note that many enhancement statutes in fact use the word ‘enhancement’ [citations], while others refer to imposition of an ‘additional term.’  [Citations.]”  (Id., at p. 207, fn. 14, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Section 667, subdivision (a), imposes “a five-year enhancement” “in addition to the sentence imposed by the court for the present offense” on qualifying recidivists.

The question Blankenshipdoes not answer is whether Prop. 8 applies to a special circumstance, which the California Supreme Court has defined as “sui generis-neither a crime, an enhancement, nor a sentencing factor.”  (People v. Crandell (1988) 46 Cal.3d 833, 880, 251 Cal.Rptr. 227, 760 P.2d 423.)   The trial court here concluded it was constrained by Blankenship to apply Prop. 8:  “While I recognize that there is a difference between a special circumstance and an enhancement, I do not find that difference persuasive ․ enough to convince me that Blankenship is not controlling.”

This very problem-Prop. 8's effect on the legality of predicating a prior-murder special circumstance on the out-of-state murder conviction of a 14 or 15-year-old-was foreseen, but left undecided, by Andrews.  “We express no views as to the validity of a prior-murder special-circumstance finding which is based on the conviction of a defendant under the age of 16 in a jurisdiction which permits such a minor to be tried as an adult.   Nor need we consider the effect, if any, of article I, section 28, subdivision (f) of the state Constitution, which states in relevant part that ‘[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.’   We have previously held that this provision does not apply to cases where, as here, the offenses were committed before the provision's enactment.  [Citation.]”  (People v. Andrews, supra, 49 Cal.3d at p. 223, fn. 19, 260 Cal.Rptr. 583, 776 P.2d 285.)

Trevino relies on In re Anthony R. (1984) 154 Cal.App.3d 772, 201 Cal.Rptr. 299, which, he asserts, “declined to extend Proposition 8 to cases not involving enhancements.”   We disagree with this characterization.   The minor in Anthony R. had suffered two juvenile court adjudications based on findings that he had committed petty theft, and the People argued Prop. 8 had converted these juvenile adjudications into criminal convictions for purposes of prosecuting the minor under section 666 (petty theft with a prior theft).   The Court of Appeal rejected the People's argument:  “It is apparent that the first sentence of subdivision (f) [of article I, section 28] addresses the use of prior convictions for one of two specific, narrow purposes, impeachment or enhancement, neither of which is involved in the present case.   It is patent that appellant's prior adjudication is not being used for impeachment purposes.   It is equally clear that it is not being used to enhance.  [¶] The term ‘enhancement’ has a well-established meaning in California law.   It is defined as ‘an additional term of imprisonment added to the base term’ for the particular offense.  [Citations.]  In the operation of Penal Code section 666 a prior conviction for an offense specified in that section does not work as an enhancement, i.e., cause an additional term of imprisonment to be added to the base term for petit theft.   Rather, it is a necessary element of an entirely different statutory offense.   It transforms what otherwise would be a misdemeanor into a hybrid felony misdemeanor, with a greatly increased maximum penalty.”  (Id., at pp. 776-777, 201 Cal.Rptr. 299.)   Thus, Anthony R. merely declined to apply Prop. 8 to an entirely new offense.   Trevino's reliance on this case begs the critical question no less than the People's reliance on Blankenship.

Despite the fact the Supreme Court has insisted that special circumstances are sui generis, and therefore different from offenses, enhancements and sentencing factors,8 the court has sometimes analogized to these other categories for analytic purposes.   Thus, special circumstance allegations have been held to be like criminal offense charges for purposes of Sandstrom error 9 (People v. Garcia (1984) 36 Cal.3d 539, 552, 205 Cal.Rptr. 265, 684 P.2d 826, disapproved on other grounds in People v. Lee (1987) 43 Cal.3d 666, 676, 238 Cal.Rptr. 406, 738 P.2d 752 [where trial court failed to instruct on intent to kill element of special circumstance] ) and for purposes of section 995 dismissal motions and the two-dismissal rule of section 1387 (Ramos v. Superior Court (1982) 32 Cal.3d 26, 32-33, 184 Cal.Rptr. 622, 648 P.2d 589).   On the other hand, special circumstance allegations have been held to be unlike criminal offense charges for purposes of applying separate mens rea (People v. Crandell, supra, 46 Cal.3d 833, 880, 251 Cal.Rptr. 227, 760 P.2d 423 [“Because the multiple-murder special circumstance does not define a crime separate from the qualifying murders, there is no need to impose a mental element requirement.”] ) and corpus delicti requirements (People v. Hamilton (1989) 48 Cal.3d 1142, 1175-1176, 259 Cal.Rptr. 701, 774 P.2d 730 [elements of special circumstance need not be proved independently of defendant's admissions].)   In Garcia, supra, “[s]eeking to distinguish Sandstrom, the Attorney General argue[d] that a special circumstance is not a ‘crime,’ and an element of a special circumstance thus is not an ‘ELEMENT OF A CRIME.’  ” (PEOPLe v. garcia, supra, 36 cal.3d at p. 552, 205 Cal.Rptr. 265, 684 P.2d 826.)   The Supreme Court called the argument “ technically sound;  special circumstances are sui generis-neither a crime, an enhancement, nor a sentencing factor.   We have, however, noted the resemblance between a special circumstance proceeding and a trial to determine guilt․  [¶] ․ In view of the importance of a special circumstance finding, we do not believe the courts can extend a defendant less protection with regard to the elements of a special circumstance than for the elements of a criminal charge.   If failure to instruct on the element of a crime is a denial of federal due process, the same consequence should attend failure to instruct on the element of a special circumstance.”  (Ibid.)

Thus, although there is arguably some support in the case law for the trial court's analogy of special circumstances and enhancements, we will reverse.  “In view of the importance of a special circumstance finding․”  (People v. Garcia, supra, 36 Cal.3d at p. 552, 205 Cal.Rptr. 265, 684 P.2d 826), and because of the Supreme Court's insistence that a special circumstance is sui generis and technically not an enhancement, we conclude the trial court improperly applied Prop. 8 to this case.   Therefore, the prior-murder special circumstance finding must be reversed, along with Trevino's life without possibility of parole prison term.   We will remand the case to the trial court for resentencing.

6. Sentence modification and abstract of judgment correction.***

DISPOSITION

The judgment is affirmed in part, reversed in part, and remanded.   The prior-murder special circumstance finding is reversed and the life without possibility of parole prison term is vacated.   The matter is remanded to the trial court for resentencing.   The trial court is directed to prepare an amended abstract of judgment and forward a copy thereof to the Department of Corrections.   The habeas corpus petition is denied.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

6.   Although the People suggest Trevino's age when he committed the Texas murder is irrelevant so long as the elements of the Texas offense would have constituted murder in California, such a conclusion is incompatible with the analysis in Andrews.   Trevino does not claim his Texas crime would not have constituted murder in California.

7.   Now, 14- and 15-year-olds accused of murder may be found unfit for juvenile court adjudication.  (Welf. & Inst.Code, § 707, subd. (d).)

8.   Compare, e.g., People v. Marshall (1997) 15 Cal.4th 1, 61 Cal.Rptr.2d 84, 931 P.2d 262 (failure to instruct on element of special circumstance measured by Chapman harmless error test) with People v. Wims (1995) 10 Cal.4th 293, 315, 41 Cal.Rptr.2d 241, 895 P.2d 77 (failure to instruct on element of enhancement measured by Watson harmless error test).

9.   Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

FOOTNOTE.   See footnote *, ante.

KLEIN, P.J.

CROSKEY, J., and ALDRICH, J., concur.

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