People v. Cardenas

THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ CARDENAS, Defendant and Appellant.

C069229

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

June 19, 2018

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF106859A)

A few months before his 18th birthday, defendant Jose Rodriguez Cardenas and an 18-year-old accomplice followed victim Francisco Montejo down an alley and tried to rob him at gunpoint. The victim resisted and was shot and killed. After initially denying involvement, defendant admitted to police that he held the gun but claimed the discharge was accidental. In trial testimony defendant reverted to his original denial and claimed that police coerced his statements.

The prosecution initially charged first-degree premeditated murder, but two hung juries failed to reach a verdict against Cardenas. A separate jury in the first trial convicted codefendant Ramon Mendez of first degree murder and attempted robbery, which was the subject of a separate appeal. (People v. Mendez (Jan. 10, 2013, C063386) [nonpub. opn.] 2013 WL 120935.)

This appeal concerns defendant Cardenas's third trial, in which the prosecution dropped the premeditation theory. The jury found defendant guilty of first-degree murder with two special circumstances -- (1) felony murder during an attempted robbery; and (2) an intentional killing to further activities of a criminal street gang in which defendant was actively participating. (Pen. Code, §§ 187, 190.2, subds. (a)(17) and (a) (22); statutory references that follow are to the Penal Code unless otherwise set forth.) The jury also found defendant guilty of attempted second degree robbery (§§ 211, 664); and (3) street terrorism (§ 186.22, subd. (a)).

On the murder and attempted robbery counts, the jury also found true three enhancement allegations: (1) that defendant "personally and intentionally" discharged the firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)); (2) that defendant was a principal and a principal "intentionally and personally discharged a firearm" proximately causing great bodily injury or death (§ 12022.53, subds. (d)-(e)); and (3) that the murder was committed for the benefit of a criminal street gang to promote gang activity (§ 186.22, subd. (b)(1)).

The trial court sentenced defendant to prison for life without the possibility of parole (LWOP).

Recent changes in law demand that we vacate the sentence and conditionally reverse the conviction and remand to the trial court with directions to transfer the case to the juvenile court for a transfer hearing to determine the propriety of prosecution in adult criminal court had the case originally been filed in juvenile court (Welf & Inst. Code,§ 707) pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299, which held Proposition 57 retroactive.

If the juvenile court determines it would not have transferred defendant to criminal court, the juvenile court shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition.

If the juvenile court determines it would have transferred defendant to criminal court, the case shall be transferred to criminal court, which shall reinstate defendant's conviction but conduct a resentencing hearing on the vacated sentence. In the resentencing hearing, the trial court shall consider whether to exercise its newly-enacted discretion to strike any section 12022.53 gun enhancements pursuant to Senate Bill No. 620 (§ 12022.53, subd. (h)), which took effect January 1, 2018, and which we held retroactive in People v. Woods (2018) 19 Cal.App.5th 1080.

The trial court shall also reconsider the sentence in light of case law published after defendant was sentenced, holding that the Eighth Amendment's ban on cruel and unusual punishment requires the sentencing court to consider factors bearing on the "distinctive attributes of youth" before imposing an LWOP sentence on a juvenile offender. (Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller); In re Kirchner (2017) 2 Cal.5th 1040; People v. [Luis Angel] Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).)

We reject defendant's other contentions:

(1) That the trial court erred in rejecting his claims of discrimination in the prosecutor's exercise of peremptory challenges on prospective jurors under Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)).

(2) That the trial court should have excluded evidence of his admissions to police, on the grounds his statements were involuntary and police violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

(3) That the evidence supports at most a finding of accidental discharge of the gun and is insufficient to support the jury's findings that he personally and intentionally discharged the gun (for the gun enhancement) and intended to kill (for the gang special circumstance).

(4) He presents various contentions flowing from his premise that the jury may have found him guilty as an aider/abettor rather than the shooter (an alternative that the prosecutor halfheartedly offered to the jury). Defendant relies on authorities that aiders and abettors are not subject to LWOP sentencing for the felony-murder special circumstance unless the prosecution proves the aiders and abettors intended to kill or were major participants who acted with reckless disregard for human life.

(5) Defendant claims instructional error and unconstitutional vagueness.

Much of defendant's presentation about the felony-murder special circumstance is defeated by our conclusion that substantial evidence supports the jury's finding that defendant personally and intentionally discharged the gun causing death. The jury's finding on this point establishes that the jury found defendant was the actual killer, not merely an aider/abettor.

Consequently, this appeal differs from Mendez's separate appeal. We there reversed gang special circumstance findings due to instructional error, struck gang enhancements because they could not be imposed in addition to firearm use enhancements, and stayed separate punishment under section 654, but we otherwise affirmed the judgment. (People v. Mendez, supra, (C063386) [nonpub. opn.] 2013 WL 120935.)

If the conviction is reinstated, the trial court after the resentencing hearing shall prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The new abstract of judgment shall show the felony-murder special circumstance (§ 190.2, subd. (a)(17)), which is not shown in the original abstract of judgment.

FACTS AND PROCEEDINGS

Defendant admits that at the time of these offenses he was a member of the Vickystown gang, a subset of the Surenos gang, though he claims he quit a year or two later.

There was no evidence that the victim was a gang member, and no one argues that he was.

On December 9, 2007, defendant -- who would have his 18th birthday in March 2008 -- went to a flea market with friends Martha and Carina and Carina's 10-month-old daughter, in Carina's 2-door Thunderbird.

Carina and Martha each testified under a grant of use immunity. Inconsistencies between statements to police and trial testimony were explored during trial.

Carina and Martha had been gang members of the Sureno subset Playboys but were no longer members at the time of trial.

At the flea market, they saw a friend, Jose Palacios (Gordo), and accepted his invitation to go to his house, which was a regular hang-out for Sureno gang members. Several people were at the house, including defendant's accomplice, 18-year-old Ramon Mendez (Gallo), who was also a Vickystown member.

Carina saw a gun being handed around among several people, including defendant. Defendant put the gun in his belt to "show[] it off." Carina did not see who had the gun last.

Martha claimed she did not see a gun and did not recall much of anything.

Another person at Palacios's house that day, Carlos Valdez, saw Gallo (Mendez) take a revolver out of his pocket and pass it around to others. Valdez did not handle the gun. Valdez saw some .22 caliber bullets fall out of Mendez's pocket and helped pick them up. (The victim was killed by a .44 caliber bullet.) Valdez did not remember whohad the gun last, but defendant Cardenas was one of the people who handled the gun. Valdez did not recall having failed to recognize Cardenas in prior proceedings.

Carina testified she left Palacios's house around 4:00 p.m. and was sitting in her car with her child and Martha and defendant. Carina was busy with her CD player, and Martha was texting on her phone. A young, nicely dressed Mexican man walked by the car talking on a cell phone. Defendant commented he liked the man's phone and "I should jack him." Carina knew defendant was called "Joker," did not take him seriously, and did not agree to participate in a robbery. Martha did not recall the comment.

Defendant, seated in the back of the two-door car, asked to get out, and Carina let him out. Mendez approached. He and defendant talked outside the car and then walked off in the same direction as the victim.

After several minutes, Carina started driving around, looking for defendant, because he had wanted a ride. She saw a black bulge laying in an alley and later learned it was the victim who had been shot. On the street, Carina spotted defendant and Mendez running. They jumped in the car, breathing hard. Defendant looked pale and said, "I think I shot him."

Martha remembered little at trial and said she was on her phone in the car and not paying attention. She initially lied to police, then admitted her presence and told police that defendant was...