People v. Guerrero

1

THE PEOPLE, Plaintiff and Respondent, v. MANUEL GUERRERO, Defendant and Appellant.

B325771

California Court of Appeals, Second District, Third Division

May 30, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. PA090387, Hilleri G. Merritt, Judge. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

LAVIN J.

INTRODUCTION

A jury convicted Manuel Guerrero of one count of second degree murder (Pen. Code,^[1] § 187, subd. (a); count 1) and one count of possession of a firearm by a felon (§ 29800 subd. (a)(1); count 2). With respect to count 1, the jury found that Guerrero personally and intentionally discharged a firearm, causing great bodily injury and death. (§ 12022.53, subds. (b)-(d).) Guerrero raises seven claims of error on appeal: (1) the court erred in denying his pretrial motions under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (2) Guerrero's right to legal autonomy was violated when a continuance was granted over his objection; (3) the court erred in failing to instruct the jury on transferred intent sua sponte; (4) the evidence was insufficient to support a murder conviction; (5) the court erred in denying Guerrero's request for a mistrial following prosecutorial misconduct; (6) the court erred in admitting jail calls; and (7) the court erred in imposing the consecutive 25-year-to-life firearm enhancement.

We modify the judgment to reflect that the section 667 subdivision (a)(1) enhancement is stricken and affirm the judgment as modified.

FACTUAL BACKGROUND

1. Stipulated Facts

On February 3, 2018, a shooting occurred in Pacoima, California. Andrew Stewart was shot multiple times. Law enforcement received a call concerning the shooting at 2:06 a.m. and reported to the scene, where they properly recovered 16 expended .45 caliber cartridge casings, 10 expended nine-millimeter cartridge casings, keys on a lanyard, and several projectiles that could not be definitively identified.

On February 3, 2018, during an investigation at another residential address in Pacoima, Officer Raul Martinez recovered a .45 caliber semi-automatic pistol and a magazine containing live rounds. DNA testing later performed on the magazine inside revealed that the gun contained Guerrero's DNA.

On February 6, 2018, Dr. Okey Ukpo performed an autopsy on Stewart and recovered three fired bullets from his left lower chest, spine, and small bowel.

A Los Angeles Police Department criminalist tested the bullets and casings recovered by law enforcement personnel during the investigation on February 3, 2018. All of the spent .45 caliber cartridge casings recovered from the scene were fired by the pistol recovered from Guerrero. Every fired bullet recovered from the scene, including from Stewart's body, was fired by the pistol recovered from Guerrero, with the exception of two items for which a definitive determination could not be made. All of the nine-millimeter caliber casings recovered at the scene were fired by a single unrecovered firearm.

A Los Angeles county medical examiner coroner analyst conducted a gunshot residue (GSR) test using a kit obtained by coroner's office personnel who responded to the scene of the crime on February 3, 2018. The GSR testing revealed that Stewart's right and left hand had "many characteristic particles of gunshot residue." The conclusion in the report was that Stewart may have discharged a firearm, been in the vicinity of the discharge of a firearm, or touched a surface with residue on it.

2. The Crime Scene

Officer Aaron Green was on duty the morning of February 3, 2018, and received a radio call that approximately ten shots had been fired and a man had been heard screaming. When Officer Green arrived at the scene, the driveway of a residential address, he observed a man lying face down on the pavement.^[2]The victim had his hands slightly underneath him and his face was straight down in the concrete, which indicated to Officer Green that he was dead. Officer Green had other officers clear people away to attempt to protect the integrity of the scene. He observed expended casings, including both .45 caliber and nine-millimeter casings.

When the Fire Department arrived, it moved the victim's body, which had been partially underneath a car, and turned his body over. Officer Green recognized the victim as Andrew Stewart. He was declared deceased.

Officer Green testified that the distance between Stewart's body and the nine-millimeter casings was approximately 20 feet. He did not observe any trail of blood indicating that Stewart had been shot near the casings but subsequently moved. Officer Green observed a clear plastic bag clutched in the victim's left hand that appeared to contain some kind of narcotic. He concluded that Stewart was likely holding the bag at the time he was shot.

Officer Green walked the crime scene to look for evidence and ensure that no one had been injured by a stray round. He did not observe any rounds in the front part of the house behind the driveway or in the fence that ran along the side of the driveway. He saw nothing indicating that bullets had been fired in the direction of the house or fence. However, there were bullet impacts in a white sedan parked in the driveway. He observed blood on the asphalt near the white sedan, which Stewart was found next to and partially under. He did not observe any other blood at the scene.

Officer Green had been a peace officer for 15 years at the time of the shooting and was previously in the United States Army for 21 years. He had utilized handguns during the entirety of his career and had fired thousands of rounds. In his experience, semi-automatic handguns eject spent casings to the right and slightly behind the position of the firearm, usually two to three feet.

Detective Richard Moakley was a supervising detective for the Los Angeles Police Department and was assigned as a homicide detective to the shooting. He processed the scene and identified, documented, and recovered evidence. Detective Moakley searched the driveway, the front yard, and the front porch of the house for expended casings and other evidence. He also examined the cars in the driveway for bullet impacts, as well as a couple of neighboring houses. He also searched the other side of the street. Detective Moakley documented all the evidence he located and prepared several diagrams denoting the location of the evidence, including a diagram indicating where the casings of different calibers were found. Detective Moakley located a lanyard with keys underneath where he believed Stewart's body was before it was moved by the Fire Department, exposing the blood and the lanyard. The lanyard was identified as belonging to Stewart.

Detective Moakley testified that he had fired firearms for over 30 years and that the majority were semi-automatic handguns. He testified that semi-automatic handguns generally eject spent casings in a right rear direction. Based on the location of the nine-millimeter casings, he suspected that the shooter of the unrecovered gun was standing on the sidewalk. In the absence of impacts in any other direction, he believed that the shooter might have shot in an east direction into the street or down the sidewalk. No nine-millimeter "projectiles, fragments, or slugs" were located, including in the direction of the house or any nearby houses.

The white sedan in the driveway, which was owned by Stewart, had five bullet impacts. The sedan was moved to a police garage where a forensic team placed rods in the car to provide a visual representation of the bullet's trajectory. Detective Moakley was present when they were placed in Stewart's vehicle. The rods showed that the bullets traveled from the driver's side to the passenger's side of the sedan.

When the coroner arrived at the scene, Detective Moakley observed the wounds sustained by Stewart. He testified that the majority of the wounds were to Stewart's backside. Based on the wounds, the casings, and the bullet impacts to the car, Detective Moakley determined that Stewart was standing between the car and the shooter.

Detective Rene January, a detective with the Homicide Bureau, was the designated investigative officer for the matter. Detective January was questioned regarding grainy security video from a house across the street from the shooting and agreed that, for some period slightly before and after the shooting, unidentifiable individuals appeared to be coming and going from the general location of a nearby house.

3. Forensic Analyses

Debra Gibson, a criminalist at the Los Angeles Department of Medical Examiner, testified that an individual might get GSR on their hands by discharging a firearm, being near one when it goes off, or by coming into contact with a surface that has residue on it. She stated that the presence of GSR on one's body is not proof that one has fired a gun and that there is no way of telling how residue got on someone's hands from a GSR test. She agreed that, where an individual was shot at least 14 times from a range of about 10 feet, she would expect GSR to be on that person. She explained that, when a firearm is discharged, the majority of the material comes out in the muzzle direction. She would therefore expect to see GSR on surfaces in front of where a gun was fired 14 times. Gibson explained that residue does not travel in a line but comes out as a cloud and then quickly cools and condenses and lands on surfaces.

Dr....