THE PEOPLE v. ANTHONY ERNEST OSEGUERA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ERNEST OSEGUERA, Defendant and Appellant.

B225551

Decided: August 23, 2011

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

Defendant, Anthony Ernest Oseguera, was convicted of two counts of attempted willful, deliberate, and premeditated murder.  (Pen.Code,1 §§ 664, 187, subd. (a).)  The jury found defendant personally and intentionally used a firearm and caused great bodily injury to one of two victims. (§ 12022.53, subds.(c), (d).)  The trial court found defendant was previously convicted of two violent felony juvenile adjudications.

(§§ 667, subds.(b)-(i), 1170.12.)   He was sentenced to 70 years to life in state prison.

II. THE EVIDENCE

We view the evidence in the light most favorable to the judgment.  (Jackson v. Virginia (1979) 443 U.S. 307, 319;  People v. Elliot (2005) 37 Cal.4th 453, 466;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908–909.)   Defendant was armed with a .38–caliber handgun and wearing gang colors.   Defendant was dropped off in the heart of rival gang territory.   He ran down West 66th Street in the direction of an apartment building on Vermont Avenue that was a known rival gang hangout.   At that moment, Avery White, a rival gang member, and a friend, Julio Alcantar, were jaywalking across Vermont Avenue.   Walking side by side, they were headed towards Mr. Alcantar's home on 66th Street.   Several people were congregated in front of the gang hangout.   Someone yelled, “Watch out, watch out.”   Defendant fired at Mr. White and Mr. Alcantar.   Upon hearing the first gunshot, Mr. White and Mr. Alcantar ran in different directions.   As they started running, defendant fired a second shot.   Mr. Alcantar tried to run faster.   He heard a third shot and fell to the ground.   Mr. Alcantar tried to get up but his entire body had shut down.   He felt blood pouring down his back.   Mr. Alcantar tried to crawl away, out of the open street.   He heard footsteps approaching.   Mr. Alcantar turned to look over his shoulder.   Defendant shot Mr. Alcantar in the chest.   Defendant stood 10 feet away and fired the fourth shot directly at Mr. Alcantar who was lying on the ground.   One bullet hit Mr. Alcantar's spinal cord.   The other entered Mr. Alcantar's left clavicle and traveled downward hitting his lung.   At the time of trial, the two bullets remained lodged in Mr. Alcantar's body—one in his spinal cord and the other in his left lung.   While hospitalized, following the assault, Mr. Alcantar was unable to identify defendant's photograph in a photographic lineup.   He did, however, identify defendant at the preliminary hearing and again at trial.

Defendant and his victims were all under 20 years of age at the time of the shooting.   Defendant was 19 years old, as was Mr. White.   Mr. Alcantar was 18.

Two police officers were driving on Vermont Avenue when the assault occurred.   Officer Gregorio de la Rosa saw the shooting.   He called for additional officers.   Law enforcement officers established a perimeter, designated a command post and called in police dogs.   At trial, Officer de la Rosa identified defendant as the gunman.

When defendant saw the two officers, he ran toward a bakery at the corner of Vermont Avenue and 66th Street and into the rear parking lot.   Defendant abducted at gunpoint a seven-year-old boy who was playing in the parking lot.   Defendant forced his way into the boy's apartment.   Idalia Gonzalez saw defendant enter her apartment.   Defendant's arm was around her nephew's neck.   Defendant had a gun in his hand.   Ms. Gonzalez yelled to her sister to call the police.   Defendant released the boy and fled.

Defendant ran from the parking lot through Salomon San Pedro's backyard on West 68th Street.   Defendant dropped the gun into Mr. San Pedro's trash can.   Also, defendant discarded the blue wave cap he had been wearing.   The recovered hand gun held four spent casings and one live round.   Defendant continued running until he reached another residence on West 68th Street.   There he discarded his tennis shoes in the driveway and crawled underneath the house.   Several hours later he was discovered by a police dog unit and forcibly removed from the crawl space.   The location where defendant was first seen getting out of a car, the location of the assault, the bakery, Ms. Gonzalez's apartment, Mr. San Pedro's house, and the residence where defendant ultimately hid were all within the same square block.

III. DISCUSSION

A. Gang Evidence

The trial court denied a defense motion in limine to preclude the admission of gang evidence as more prejudicial than probative under Evidence Code section 352.   The prosecution presented extensive testimony regarding:  gang culture;  the active, deadly rivalry between defendant's and Mr. White's gangs;  the frequent gang-related violence in the neighborhood where the shooting occurred;  and the likelihood that, given the manner in which the assault was committed, defendant was “putting in work” for his gang.

On appeal, defendant asserts the gang evidence was so extremely prejudicial as to violate his federal due process fair trial right.   Despite defendant's failure to object on due process grounds in the trial court, the due process argument is not forfeited.  (People v. Moore (2011) 51 Cal.4th 386, 407, fn. 6;  People v. Partida (2005) 37 Cal.4th 428, 431, 434–436.)   Defendant emphasizes that:  there was no allegation he committed the crimes for the benefit of a criminal street gang;  he had no gang tattoos;  he had never admitted to gang membership or been identified as a member of one prior to the shooting;  he had never previously been arrested for a gang-related crime;  he was not living in the gang neighborhood at the time of the shooting;  and he did not make any gang challenges or flash any gang signs.

Our Supreme Court has recognized that gang evidence has a high potential for prejudice.  (People v. Carter (2003) 30 Cal.4th 1166, 1194;  People v. Williams (1997) 16 Cal.4th 153, 193.)   Evidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty.  (Ibid ;  see People v. Brown (2003) 31 Cal.4th 518, 547.)   Gang evidence should be excluded when its probative value is minimal.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1047;  People v. Albarran (2007) 149 Cal.App.4th 214, 223.)   However, as our Supreme Court has observed, even though potentially prejudicial, “[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect.   (People v. Champion [ (1995) ] 9 Cal.4th [879,] 922–923[, overruled on another point as stated in People v. Combs (2004) 34 Cal.4th 821, 860].”  (People v. Williams, supra, 16 Cal.4th at p. 193;  accord, People v. Hernandez, supra, 33 Cal.4th at pp. 1049–1050.)   Our review under state evidentiary law is for an abuse of discretion.  (People v. Carter, supra, 30 Cal.4th at p. 1194;  People v. Champion, supra, 9 Cal.4th at p. 923.)   An abuse of discretion under state evidentiary law rises to the level of a federal due process violation only if it renders a defendant's trial fundamentally unfair.  (People v. Cowan (2010) 50 Cal.4th 401, 463–464;  People v. Partida, supra, 37 Cal.4th at p. 439.)

Here, the trial court could reasonably conclude the gang evidence was relevant to prove premeditation, deliberation and motive.   The prosecution's theory was that defendant was “putting in work” for a gang.   Defendant's gang was hostile to that of his victim.   Defendant was seeking to improve his status within his gang.   Defendant was dropped off in rival gang territory.   Defendant was dressed in gang colors.   Typically, this is done to advertise gang affiliation, so that everyone will know who is behind an attack.   Defendant proceeded to the vicinity of a known rival gang hangout.   He fired his weapon in broad daylight, near a major intersection.   A gang enforcement officer testified it was not unusual for a gang-related crime to be committed by a previously undocumented gang member.   And a gang member who was putting in work would usually, but not always, have gang tattoos.   Subsequent to the present assault, defendant admitted he was a gang member.   Without abusing its discretion, the trial court could conclude this evidence was more than minimally probative.   It tended to establish that:  defendant was a gang member;  defendant intended to openly and notoriously kill a member of a rival gang;  and the killing was to occur in the heart of the gang's territory.   The trial court properly instructed the jury it could consider the gang evidence only with respect to motive, premedication and deliberation.2  (People v. Carter, supra, 30 Cal.4th at p. 1196;  People v. Williams (2009) 170 Cal.App.4th 587, 613.)   We presume the jury understood and obeyed the trial court's instructions.  (People v. Yeoman (2003) 31 Cal.4th 93, 139;  People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)   There was no abuse of discretion under Evidence Code section 352.   And because defendant's federal due process claim is entirely dependent on his state law error assertion, it too must fail.  (People v. Cole (2004) 33 Cal.4th 1158, 1187, fn. 1;  People v. Carter, supra, 30 Cal.4th at p. 1196.)

Even if it had been error under state law to admit the gang evidence, its admission did not violate defendant's due process rights.   It did not infect the entire trial, undermine confidence in the verdict (People v. Foster (2010) 50 Cal.4th 1301, 1335;  People v. Halvorsen (2007) 42 Cal.4th 379, 416) or render defendant's trial fundamentally unfair.  (Estelle v. McGuire (1991) 502 U.S. 62, 70;  People v. Partida, supra, 37 Cal.4th at p. 439;  People v. Falsetta (1999) 21 Cal.4th 903, 913;  see People v. Albarran, supra, 149 Cal.App.4th at pp. 228–232 [admission of irrelevant gang evidence rendered defendant's trial fundamentally unfair].)   As discussed above, without abusing its discretion, the trial court could reasonably rule the gang evidence was relevant to establish premeditation, deliberation and motive.   The jury was directed to consider the testimony on the subject if at all only as to those issues.   Further, substantial evidence connected defendant to the shooting.   Multiple witnesses described the assailant as a young, light-skinned Mexican or African–American man wearing:  a black or blue wave cap;  a white or light-colored T-shirt;  dark or blue shorts;  and white tennis shoes with orange laces.   Orange and blue were the colors worn by gang members who were rivals of Mr. White's gang.   Mr. White described the gun as a snub nose .38–caliber revolver or a .38 special.   When defendant was forcibly extracted from the crawl space under a house, he was wearing a white tank top and blue basketball shorts.   Fifteen feet away, in the driveway, officers found white tennis shoes with orange laces.   Officer de la Rosa observed that it was common for fleeing suspects to discard items of clothing in an attempt to change their appearance or to blend into the crowd.   Both a .38–caliber revolver and a blue wave cap were recovered from the backyard of Mr. San Pedro's house.   Mr. San Pedro's residence was on a path between the location of the shooting and Ms. Gonzalez's apartment and the house where defendant was found hiding.   All of these places were within one square block.   The firearm contained four spent shell casings.   The assailant had fired his weapon four times.   Two eyewitnesses, Mr. Alcantar and Officer de la Rosa, identified defendant as the gunman.   Any purported error was harmless.

B. Self-representation

The trial court denied defendant's request to represent himself in post verdict proceedings.   The jury rendered its verdict on March 2, 2010.   The case was set for a court trial on prior juvenile conviction allegations and for sentencing on April 28, 2010.   It was mutually continued to June 8. It was continued again at defendant's request to June 22, 2010.   On June 22, 2010, Charles Frisco, defendant's attorney, stated:  “[A]bout five minutes ago my client asked me to let the court know that he would like to represent himself for purposes of both priors and his sentencing.”   Defendant admitted he was not prepared to go forward at that time.   The trial court denied the request as untimely.   On appeal, defendant asserts this was a violation of his Sixth Amendment rights.   We find no abuse of discretion.

A self-representation request must be knowing and intelligent and both timely and unequivocal.  (Faretta v. California (1975) 422 U.S. 806, 835;  People v. Valdez (2004) 32 Cal.4th 73, 97–98;  People v. Barnett (1998) 17 Cal.4th 1044, 1087.)   When a request to proceed in pro per is not made within a reasonable time before trial, the trial court has discretion to deny it as untimely.  (People v. Hardy (1992) 2 Cal.4th 86, 195;  People v. Windham (1977) 19 Cal.3d 121, 128.)   This case involves a bifurcated trial on prior conviction or prison term allegations.   A self-representation request made prior to commencement of trial on prior conviction or prison term allegations but after the verdict is returned on the primary offenses is untimely.  (People v. Rivers (1993) 20 Cal.App.4th 1040, 1048;  People v. Givan (1992) 4 Cal.App.4th 1107, 1113–1115;  see People v. Hardy, supra, 2 Cal.4th at pp. 193–195 [self-representation request after guilt phase verdicts but before start of penalty phase was untimely];  People v. Hamilton (1988) 45 Cal.3d 351, 369 [motion made during guilt phase deliberations was untimely].)

Defendant had been exceptionally competently represented by Mr. Frisco throughout the proceedings.   Defendant offered no reason for the belated self-representation request.   At the time of defendant's self-representation request, the case was set for a court trial on prior conviction or prison term allegations followed by sentencing.   The court trial and sentencing had already been twice delayed.   The victims were present in the courtroom, as they had been on an earlier date.   And defendant was unprepared to go forward as his own counsel.   Given these facts, we find no abuse of discretion.

C. Section 12022.53

Pursuant to section 12022.53, the jury found as to count 1 that defendant:  personally discharged a firearm, which caused great bodily injury to Mr. Alcantar (subd. (d));  personally discharged a firearm (subd. (c));  and personally used a firearm (subd. (b).)  The trial court sentenced defendant to an additional, consecutive 25 years to life under section 12022.53, subdivision (d).  The trial court should also have imposed and then stayed a consecutive 10 and 20 years under section 12022.53, subdivisions (b) and (c) respectively.  (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130;  People v. McFearson (2008) 168 Cal.App.4th 388, 391.)   Under section 12022.53 as to count 2, the jury found defendant personally used and discharged a firearm pursuant to section 12022.53, subdivisions (b) and (c) respectively.   The trial court imposed an additional, consecutive 20 years under section 12022.53, subdivision (c).  The trial court should also have imposed and stayed a consecutive 10–year term under section 12022.53, subdivision (b).  (People v. Gonzalez, supra, 43 Cal.4th at p. 1130;  People v. McFearson, supra, 168 Cal.App.4th at p. 391.)

D. Restitution Fines

The trial court erred when it imposed a $200 restitution fine (§ 1202.4, subd. (b)(11)) and a $200 parole revocation restitution fine (§ 1202.45) as to each count.   (People v. Soria (2010) 48 Cal.4th 58, 64–65;  see People v. Schoeb (2005) 132 Cal.App.4th 861, 865;  People v. Ferris (2000) 82 Cal.App.4th 1272, 1275–1278.)   Defendant was convicted of two counts of attempted murder in a single formal criminal proceeding with one case number.   Therefore, he was subject to a single restitution fine (§ 1202.4, subd. (b)(11)) and only one parole revocation restitution fine (§ 1202.45).

E. Custody Credits

The trial court gave defendant credit for 845 days in presentence custody, but denied him any conduct credit citing section 2933.2.   This was error.   Section 2933.2 precludes an award of conduct credit to a defendant convicted of murder.   It does not mention attempted murder.   Defendant is, however, limited to 15 percent conduct credits. (§§ 2933.1, 667.5, subd. (c)(12).)   Additionally, because defendant was arrested on October 6, 2007, and sentenced on June 22, 2010, his actual presentence custody credit should have been 991 days rather than 845 days.  (In re Marquez (2003) 30 Cal.4th 14, 25–26;  People v. Smith (1989) 211 Cal.App.3d 523, 527.)   Therefore, the judgment must be modified to award defendant 991 days of actual presentence custody credit plus 148 days of conduct credit for a total presentence custody credit of 1139 days.

IV. DISPOSITION

The judgment is modified:  as to count 1, to impose and stay a consecutive 20 years under Penal Code section 12022.53, subdivision (c) and a consecutive 10 years under subdivision (b) of that section;  as to count 2, to impose and stay a consecutive 10 years under Penal Code section 12022.53, subdivision (b);  as to count 2, to omit the $200 restitution fine (Pen.Code, § 1202.4, subdivision (b)(1)) and the $200 parole revocation restitution fine (Pen.Code, § 1202.45);  and to award defendant 991 days of actual presentence custody credit plus 148 days of conduct credit for a total presentence custody credit of 1139 days.   The judgment is affirmed in all other respects.   Upon remittitur issuance the clerk is to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KRIEGLER, J. KUMAR, J.*

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise noted..  FN1. All further statutory references are to the Penal Code unless otherwise noted.

FN2. The jury was instructed:  “During the trial, certain evidence was admitted for a limited purpose.   You may consider that evidence only for that purpose and for no other.  [¶] The People presented evidence that the defendant was a gang member [and] that the offense was gang related, which were not charged in this case.  [¶] You may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:  [¶] The defendant had a motive to commit the offenses alleged in this case;  or [¶] The defendant acted with premeditation and deliberation.  [¶] Do not consider this evidence for any other purpose expect for the limited purpose of motive and premeditation and deliberation.  [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.  [¶] If you conclude that the defendant was a gang member or that the offense was gang related, that conclusion is only one factor to consider along with all the other evidence.   It is not sufficient by itself to prove that the defendant is guilty of counts one and two.   The People must still prove every charge beyond a reasonable doubt.”.  FN2. The jury was instructed:  “During the trial, certain evidence was admitted for a limited purpose.   You may consider that evidence only for that purpose and for no other.  [¶] The People presented evidence that the defendant was a gang member [and] that the offense was gang related, which were not charged in this case.  [¶] You may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:  [¶] The defendant had a motive to commit the offenses alleged in this case;  or [¶] The defendant acted with premeditation and deliberation.  [¶] Do not consider this evidence for any other purpose expect for the limited purpose of motive and premeditation and deliberation.  [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.  [¶] If you conclude that the defendant was a gang member or that the offense was gang related, that conclusion is only one factor to consider along with all the other evidence.   It is not sufficient by itself to prove that the defendant is guilty of counts one and two.   The People must still prove every charge beyond a reasonable doubt.”

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

TURNER, P.J.