THE PEOPLE v. PEDRO LUIS MADRIGAL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In an amended information filed by the Los Angeles County District Attorney, defendant and appellant Pedro Luis Madrigal was charged with carjacking using a firearm (count I;  Pen.Code, § 215, subd. (a)),¹ assault with a semiautomatic firearm (count II; § 245, subd. (b)), and attempted murder (count III;  §§ 664/187, subd. (a)).  As to all counts, it was alleged that appellant personally used a handgun within the meaning of section 12022.5, and section 12022.53, subdivisions (b), (c), and (d).  It was further alleged that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), and that the crimes were committed for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b).  It was also alleged that appellant had prior convictions that could subject his sentence to enhancements within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667.5.   Appellant pleaded not guilty and denied the allegations.

Trial was by jury.   The jury found appellant guilty as charged.   Specifically, it found the attempted murder to be deliberate and premeditated, and it found the allegations that appellant personally used a firearm and personally inflicted great bodily injury to be true.   The jury also found that the crimes were committed for the benefit of a criminal street gang.   The trial court found three of appellant's four prior strike allegations to be true.

Appellant was sentenced to state prison for 95 years to life and ordered to pay a restitution fine and a parole revocation fine.

Appellant appeals his conviction.   He contends:  (1) The trial court abused its discretion in denying his request for a continuance of trial to allow him to retain private counsel.  (2) His sentence as to count III should have been stayed pursuant to section 654 because the carjacking and attempted murder convictions were based on one continuous course of conduct against the same victim.  (3) The trial court abused its discretion in refusing to strike his prior strike convictions (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529–531 (Romero ).)

We find no error.   Accordingly, we affirm.

FACTUAL BACKGROUND

In 2007, Yovany Quevedo (Quevedo) moved to the United States from Guadalajara, Mexico, and moved in with a friend, Diego Armando Casillas (Casillas), and his family in El Monte.   Quevedo worked in construction and had bought a GMC Jimmy truck.

Quevedo met appellant at Casillas's house because Casillas permitted El Monte Flores (EMF) gang members to hang out at his house and do drugs.   Quevedo knew appellant as “Petey” and was afraid of him because he belonged to the gang.   Appellant had several gang tattoos and received a tattoo of a woman while at Casillas's house.

At some point, appellant began to ask Quevedo to drive him places.   The first time, Quevedo gave appellant a ride to his girlfriend's house.   On subsequent rides, Quevedo discovered that appellant was selling drugs.   Quevedo gave appellant rides because he was afraid of him and because appellant gave him money for gasoline.

On April 5, 2009, Quevedo went into his room and discovered appellant taking coins out of Quevedo's shoebox.   Appellant's fellow gang member “Chano” was with him.  “ ‘[S]peaking strongly to him,’ ” Quevedo asked appellant why he was taking money that did not belong to him.   Appellant said that he needed the change for laundry.   Thereafter, appellant asked Quevedo for a ride.   Quevedo replied that he needed to run an errand.   Appellant said that it would be the last time he asked for a ride.   Quevedo agreed.

Appellant directed Quevedo to an alley and said that there were some speakers behind the trash container.   He requested Quevedo's assistance.   Both men got out of the truck.   As Quevedo walked around the back of the truck, he noticed that appellant “was chambering” a gun.   Appellant said something to the effect of “come over here, dog.”   Quevedo turned and ran away from appellant.   Appellant fired at Quevedo, hitting him in the back and the leg.   Two men were near the alley and called 911.

Los Angeles County Deputy Sheriff Joseph Morales tried to interview Quevedo at the hospital, but Quevedo was taken into surgery before he could give a meaningful accounting of the shooting.   Deputy Morales returned to the hospital on April 10, 2009.   Quevedo was scared and in pain.   He said that “Petey” from EMF had shot him and took his truck.   He described appellant, including his tattoos.   Quevedo did not know appellant's real name.   He did not know his license plate number because he had had the truck for only a month.

Deputy Morales obtained appellant's real name from the El Monte Police Department.   Deputy Morales assembled a six-pack of photographs and showed them to Quevedo in the hospital.   Quevedo immediately identified appellant as the man who shot him and took his truck.²

On April 23, 2009, Los Angeles County Deputy Sheriff Ulises Urbina conducted a traffic stop on a red GMC Jimmy that matched the description of the carjacked vehicle.   Appellant was driving with two female passengers.   Appellant was arrested.   There were no drugs or weapons in the car.

El Monte Police Department Detective Ralph Batres, who was assigned to the gang unit, testified about the Hispanic gangs in El Monte.   Of the five gangs in the area, EMF was the largest, with 450 members.   The gang dated back 50 to 60 years.   The EMF gang looked down on recent immigrants from Mexico, whom they called “Paisa.”   According to Detective Batres, EMF's primary activities are robbery, assault, and carjacking, and 60 percent to 80 percent of the robbery victims in the area were recent immigrants from Mexico.

Detective Batres also stated that respect is very important to gangs.   Gangs would engage in violence and intimidation to obtain the respect of other gang members and fear from their neighbors.   A gang member who was disrespected would have to do something to “save face” or he would be perceived as a “wimp.”   Detective Batres opined that appellant was an active EMF gang member based on his tattoos, companions, and prior contacts with the El Monte Police Department.   He also believed that appellant committed the crimes for the benefit of the gang.

The defense did not present any evidence.

DISCUSSION

I. Denial of Appellant's Request for a Continuance

A. Proceedings Below

Appellant's preliminary hearing was held on June 3, 2009.   On June 17, 2009, appellant made a motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden ), which was denied.

Nearly four months later, on October 2, 2009, with the prospective jury waiting in the hall, appellant, who was represented by counsel, addressed the trial court and requested a continuance as follows:

“Well, your Honor, this is the first time I'm going on trial ever in my life.   I'm pretty much freaked out about the whole situation.   I've been coming back and forth from court, and I haven't—come back, come back.   Now, they throw me these clothes, tell me get ready to pick a jury.   I'm like wow.

“Now, is there any way—I'm working on getting my own lawyer.   Is there any way I could ask for a 30–day extension to get my own lawyer to go over my case really, really good?”

The trial court denied appellant's request to continue the matter to hire private counsel, finding that appellant had had five months to do so if he had wanted to.

Jury selection then commenced.

B. Applicable Law

A continuance of a criminal trial may be granted only for good cause, and the trial court has broad discretion to determine whether good cause exists. (§ 1050, subd. (e);  People v. Jenkins (2000) 22 Cal.4th 900, 1037;  People v. Alexander (2010) 49 Cal.4th 846, 934;  People v. Mungia (2008) 44 Cal.4th 1101, 1118;  People v. Frye (1998) 18 Cal.4th 894, 1012–1013, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)   In determining whether to grant a continuance, the court considers “not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”  (People v. Laursen (1972) 8 Cal.3d 192, 204.)   No mechanical test exists for deciding when a denial of a motion for a continuance is so arbitrary as to violate due process, and the answer lies “in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.”  (Ungar v. Sarafite (1964) 376 U.S. 575, 589;  People v. Mungia, supra, at p. 1118.)   The trial court's denial of a motion for continuance is reviewed for abuse of discretion (People v. Fudge (1994) 7 Cal.4th 1075, 1105–1107), and appellant bears the burden of demonstrating an abuse of discretion.  (People v. Panah (2005) 35 Cal.4th 395, 423.)   Even if a trial court errs in denying a continuance, reversal is only warranted if prejudice from that specific denial is shown.   (People v. Samayoa (1997) 15 Cal.4th 795, 840.)

C. Analysis

The trial court did not abuse its discretion in denying appellant's request for a continuance of trial.   Appellant failed to provide the trial court with information to assure it that he was in a financial position to retain counsel, having asserted earlier that he needed a public defender.   Further, appellant made no effort to convince the trial court that substitution of new counsel would not require a further continuance for counsel to prepare for trial.   While appellant brought a Marsden motion in June 2010, he never explained why the trial court should approve replacing appointed counsel with private counsel on the day of trial.   He did not suggest that appointed counsel had not adequately represented him.   Although this was appellant's first request for a continuance, the reasonable inference from the facts presented was that appellant made the request to delay the trial, justifying the trial court's order denying appellant's motion.   Thus, we conclude that the trial court did not abuse its discretion.  (People v. Keshishian (2008) 162 Cal.App.4th 425, 429.)

II. Consecutive Sentences Under Section 654

Appellant contends that after the trial court sentenced him for carjacking, it erred by imposing a consecutive 25–years–to–life term for count III (attempted murder).   He asserts that the sentence for count III should have been stayed pursuant to section 654.   We disagree.

A. Applicable Law

The test for determining whether section 654 prohibits multiple punishment has long been established.   Whether a course of criminal conduct is divisible has long been established:  “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ”  (People v. Britt (2004) 32 Cal.4th 944, 951–952.)   On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.  (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

A trial court has broad discretion to determine if section 654 applies in a given case.  (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)   The trial court's factual determinations as to intent and objective are upheld on appeal if supported by substantial evidence.  (People v. Andra (2007) 156 Cal.App.4th 638, 640–641.)

B. Analysis

Ample evidence supports the trial court's determination that appellant entertained multiple criminal objectives in connection with the offenses committed.   His intent and objective in the attempted murder were unrelated to the carjacking when he shot the victim as he was running away.  (See, e.g., People v. Jenkins (1987) 196 Cal.App.3d 394, 405–406, disapproved on other grounds in People v. Brown (1993) 6 Cal.4th 322, 336, fn. 12.)   Once the victim exited the truck, appellant did not need to shoot him in order to complete the carjacking.  (People v. Cleveland (2001) 87 Cal.App.4th 263, 271–272.)   Rather, it appears that appellant harbored two separate and distinct intents in committing both crimes:  he attempted to kill Quevedo because he spoke “strongly” to him in front of a fellow gang member after Quevedo caught him taking coins out of his box in his room;  and he stole Quevedo's truck because he wanted it.

It follows that the trial court did not abuse its discretion in finding that section 654 did not apply.

III. Denial of Appellant's Romero Motion

Appellant contends that the trial court abused its discretion when it refused to strike one or more of appellant's prior strike convictions.   We see no abuse of discretion.

A. Applicable Law

Section 1385, subdivision (a), vests the trial court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.”  (Romero, supra, 13 Cal.4th at pp.   529–530.)   Our review of the trial court's ruling is governed by principles established in Romero, supra, 13 Cal.4th 497, and elaborated in People v. Carmony (2004) 33 Cal.4th 367 (Carmony ).   The burden is on appellant “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary.” ’ ”   (Carmony, supra, at p. 376.)   Sentencing courts must follow “stringent standards ․ in order to find ․ an exception” to the Three Strikes law.   (Id. at p. 377.)   The court (trial or appellate) “ ‘must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ ”  (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 161 (Williams ).)

The trial court's power to depart from the sentencing norm of the Three Strikes law is “carefully circumscribe[d],” and its failure to strike a prior strike conviction would constitute an abuse of discretion in the “extraordinary case—where the relevant factors described in Williams ․ manifestly support the striking of a prior conviction and no reasonable minds could differ.”  (Carmony, supra, 33 Cal.4th at p. 378.)

B. Analysis

Applying the foregoing principles, we conclude that the trial court did not abuse its discretion in denying appellant's Romero motion.   The record here shows that the trial court was aware of its discretion to dismiss, did not consider any impermissible factors, and carefully examined appellant's prior criminal record and current offense, his written Romero motion, the prosecutor's written sentencing memorandum, and the attorneys' arguments.   The trial court ultimately concluded that appellant did not fall outside the spirit of the Three Strikes Law.

This record shows that the trial court acted well within its discretion in sentencing appellant as a third striker after being convicted of carjacking and attempted murder.   As the trial court expressly noted, appellant had a lengthy and uninterrupted history of criminal behavior from 1992 through the time of the current offense.  (People v. Pearson (2008) 165 Cal.App.4th 740, 749 [finding without merit a defendant's argument that the prior convictions were remote in time where the defendant led a continuous life of crime].)   In other words, appellant “is the kind of revolving-door career criminal for whom the Three Strikes law was devised.”  (People v. Gaston (1999) 74 Cal.App.4th 310, 320.)   Under these circumstances, the trial court rightly refused to dismiss the prior strikes.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

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

FN2. Quevedo also identified appellant in court..  FN2. Quevedo also identified appellant in court.

_, P.J. BOREN _, J. CHAVEZ