People v. Cisneros

THE PEOPLE, Plaintiff and Respondent, v. GERARDO CRUZ CISNEROS, Defendant and Appellant. In re GERARDO CRUZ CISNEROS, on Habeas Corpus

H046294

California Court of Appeals, Sixth District

June 22, 2021

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. F1554600

Cogliati, J. ^[*]

A jury convicted defendant Gerardo Cruz Cisneros of first degree murder (Pen. Code, § 187, subd. (a)^[1]) and found true the special circumstance allegations that the murder was committed during a burglary (§ 190.2, subd. (a)(17)(G)) and a robbery (id., subd. (a)(17)(A)). The jury also convicted defendant of first degree robbery while acting in concert (§§ 211, 213, subd. (a)(1)(A)) and first degree burglary (§§ 459, 460, subd. (a)), finding true the allegation that a non accomplice was present during the burglary (§ 667.5, subd. (c)(21)).

The trial court found true allegations that defendant had two prior convictions that qualified as “strikes” (§§ 667, subds. (b) (i), 1170.12) and one prior serious felony conviction (§ 667, subd. (a)).

Defendant was sentenced to life without possibility of parole for the murder, consecutive to a five year term for the prior serious felony enhancement. The trial court imposed terms of 25 years to life for the robbery and burglary counts but stayed those terms pursuant to section 654.

On appeal, defendant contends: (1) there was insufficient evidence to support the jury's findings on the special circumstance allegations; (2) the trial court erred by imposing terms of 25 years to life for the robbery and burglary counts; (3) he is entitled to a youth offender parole hearing (§ 3051, subd. (a)(1)) under principles of equal protection; and (4) if his trial counsel's failure to request a youth offender parole hearing forfeited the issue for appeal, his trial counsel was ineffective.

Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with his direct appeal. In the habeas petition, defendant contends his trial counsel was ineffective for failing to object to the terms of 25 years to life imposed for the robbery and burglary counts.

As explained below, we find substantial evidence supports the jury's findings on the special circumstance allegations. We find defendant is not entitled to a youth offender parole hearing. Because no sentencing error appears in the record on appeal, we will affirm the judgment. However, because error is demonstrated in the habeas petition, we will grant habeas relief and direct the trial court to resentence defendant on the robbery and burglary counts.

I. Background

Defendant's convictions stem from the home invasion robbery and homicide of Robert Heiser. Defendant participated in the home invasion robbery with three other people: Rodrigo Bejarano, Isabella Chaidez, and Gabriela Ortiz. Ortiz testified at trial pursuant to a plea agreement with the prosecution.^[2]

A Heiser's Neighbors are Alerted

Heiser lived in Gilroy, on a cul de sac in a residential neighborhood. At about 3:00 a.m. on February 16, 2015, his neighbors Robert and Denise Quiroz were woken up by their dogs barking. Robert went outside into the side yard, where he heard something or someone running along the fence line. Denise went to a window and saw a man running from the side of their house, across their front lawn, and out to the street. Robert ran down the driveway but did not see the person.

Robert decided to check on some of their neighbors while Denise called 9 11. Robert went to Heiser's residence, where he noticed the garage light on and the garage door open. He knocked and yelled for Heiser, but there was no answer.

B. Discovery of Heiser's Body

Gilroy Police officers arrived, entered Heiser's home, and found Heiser's body in the master bedroom. Heiser was on his knees next to the bed, with his upper body leaning across the bed. Heiser's arms were out in front of him, and his wrists were tied with a white cord similar to an iPhone cord.

Heiser's lower face and abdomen were red, and his upper face was pale grey, indicating post mortem lividity-i.e., the pooling of blood due to gravity. Heiser was non responsive, had no pulse, and was stiff to the touch. He was pronounced dead at 3:29 a.m.

C Evidence Collection from Heiser's Home

Officers observed a black computer power cord in Heiser's driveway. A bag of leftover food from the Olive Garden restaurant was in the refrigerator. There were two cars in the garage; the door of one car was open. The house had no signs of forced entry. Swabs and fingerprint lifts were taken from the handles and lock on the door from the garage to the house.

There was blood underneath and next to Heiser's head. Pieces of latex glove were found on Heiser's cheek and in two places on the mattress. Stains on the wall above the bed's headboard were swabbed for DNA.

DNA testing showed that defendant was the major contributor of the DNA found on the three latex glove pieces. Defendant's DNA was also found on Heiser's right hand, and possibly on Heiser's left hand. Defendant was a possible source of DNA found in Heiser's left fingernail clippings. Bejarano was excluded as a possible DNA contributor on the latex glove pieces, hand swabs, and fingernail clippings.

Defendant's DNA was found on the doorknob and in two of the stains on the wall or headboard. Defendant was a possible source of DNA in a third stain. Bejarano was a possible source of DNA found on the black computer power cord found in the driveway.

D. Investigation

1. Credit Card Records

Bank records showed that Heiser's credit card had been used at a 7 Eleven store in San Jose three times on the morning of February 16, 2015. At 5:14 a.m., an attempted transaction for $506.44 was declined. At 5:15 a.m., an attempted transaction for $306.44 was declined. At 5:16 a.m., an attempted transaction for $6.27 was declined. Video surveillance showed two females attempting the transactions.

Heiser's credit card had also been used at a CVS store in San Jose that morning. Surveillance video from the CVS showed the same two females, who were later identified as Chaidez and Ortiz.

Heiser's credit card had also been used at an Olive Garden restaurant the night of February 15, 2015. A waitress at the restaurant identified one of the females in the 7 Eleven video.

Surveillance video from a Chevron gas station on Tully Road in San Jose showed Bejarano and Chaidez making a purchase at 5:53 a.m.

2. Cell Phone Records

Cell phone records revealed that Chaidez called Bejarano on February 15, 2015, at 8:56 p.m. Chaidez called Bejarano three or four times beginning at 1:55 a.m. on February 16, 2015.

Bejarano's phone was in the San Jose area for most of the day on February 15, 2015. However, at about 9:50 p.m., Bejarano's phone was in the Morgan Hill area. Bejarano's phone was in Gilroy, within a mile of Heiser's residence, when it made calls to Chaidez at 1:42 a.m., 1:51 a.m., and 1:55 a.m. on February 16, 2015. At 5:37 a.m., Bejarano's phone was back in San Jose.

3. Medical Examination

Dr. Michelle Jorden, the chief medical examiner for Santa Clara County, testified as an expert in medicine, autopsies, and causes of death. She had performed the autopsy of Heiser's body, which was six feet five inches tall and weighed 306 pounds.

Heiser had petechial hemorrhaging (burst blood vessels) in his eyes. His external injuries, which were consistent with blunt force trauma, included a bruise above his right eye, with a laceration and bleeding; an abrasion on his nose; a puncture wound and petechial hemorrhages on his upper lip; abrasions on his right ear, right cheek, and left toe; and bruises on his lower left chest, inner left forearm, left abdomen, left hip, belly button area, and right abdomen. The bruise on Heiser's right abdomen was a petechial bruise. The petechial hemorrhages and bruises indicated asphyxia, or a lack of oxygen.

Heiser had an enlarged heart at the time of his death, and he displayed mild coronary artery disease. He had an abnormal liver that was indicative of early heart failure.

In Dr. Jorden's opinion, Heiser's cause of death was “probable compressional asphyxia while being restrained in the form of bondage during a home invasion.” Additionally, it appeared that Heiser's heart had “given out, ” such that his cause of death “could have been asphyxia with a sudden cardiac arrhythmia.” Dr. Jorden had also listed blunt force trauma and dilated cardiomyopathy as “significant condition[s]” relating to Heiser's death, although the blunt force trauma injuries themselves were not fatal.

Dr. Jorden explained how the compression, blunt force trauma, and underlying heart condition may have combined to cause Heiser's death: “So if someone is being restrained against their will and if they are sustaining injuries to their body, there's a pain factor that occurs. And... when someone is in pain their heart rate increases. And when their heart rate increases, it increases demand oxygen [sic] to the heart. [¶]... So in this particular case there could be a simultaneous component of compressional asphyxia if someone is leaning into Mr. Heiser and compressing his chest where he can't adequately breathe and his heart is not getting enough oxygen and at the same time you're having the heart fail.”

Dr. Jorden testified that it was “important” for her to ensure that Heiser's final death certificate reflect both compressional asphyxia and a sudden cardiac arrhythmia. Ultimately, Dr. Jorden opined, it was the “totality of the circumstances, ” which included the blunt force trauma, the heart condition, and the compressional asphyxia, that “really caused” Heiser's death.

4. Defendant's Arrest

Defendant and Bejarano were arrested at a rural property in Sacramento County on ...