People v. Maestas

1

THE PEOPLE, Plaintiff and Respondent, v. JEREMY NATHAN MAESTAS, Defendant and Appellant.

E075063

California Court of Appeals, Fourth District, Second Division

March 10, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FSB18003426. Ronald M. Christianson, Judge. Affirmed.

Spolin Law P.C., Aaron Spolin and Caitlin E. Dukes for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Victim Aaron Taylor testified that defendant Jeremy Nathan Maestas and defendant's brother James Maestas robbed him. Defendant used a shotgun to hit him in the eye; James hit the back of his head. He turned over his wallet, cellphone, headphones, and cigarettes, then ran home where he collapsed.

Taylor's statements were inconsistent with respect to: (1) what he was doing before the crime, (2) the words defendant used to demand his property, (3) whether defendant demanded his property before or after hitting him, (4) whether defendant swung the shotgun like a baseball bat, (5) whether defendant hit him with the butt or the barrel of the shotgun, and (6) whether he and defendant had any previous "beef[]." Moreover, no shotgun was found in defendant's house, although a .22-caliber rifle was.

Defendant was convicted of assault with a firearm and sentenced to a total of 60 years to life in prison.

In this appeal, defendant contends:

(1) The trial court erred by admitting evidence regarding the rifle. To the extent that defendant's trial counsel forfeited this argument by failing to object, defendant contends that that the trial court erred by denying his motion for new trial, in which he argued that that failure to object constituted ineffective assistance.

(2) Trial counsel rendered ineffective assistance of counsel in five additional respects:

(a) Failure to introduce all of Taylor's out-of-state prior convictions.

(b) Failure to try to obtain Taylor's medical records.

(c) Failure to have the rifle tested for DNA.

(d) Failure to try to find surveillance video.

(e) Failure to prepare defendant for cross-examination.

(3) The trial court erred by sentencing defendant on the firearm enhancement under section 12022.53 rather than under section 12022.5. Defendant also contends that his trial counsel rendered ineffective assistance by citing the wrong section number.

(4) The trial court erred by denying defendant's Romero motion.^[1]

(5) The trial court erred by denying defendant's motion to strike the firearm enhancement.

(6) Defendant is entitled to a remand so the trial court can consider whether to dismiss the enhancements under newly enacted legislation.

We find no error. Hence, we will affirm.

I STATEMENT OF FACTS

A. The Prosecution Case.

1. Taylor's first statement.

Defendant lived with his family, including his brother James, on Olive Street in Colton. Victim Aaron Taylor lived around the corner, with his brother.

On August 16, 2018, around 10:50 p.m., police officers were dispatched to Taylor's home. They found him lying on the ground, bleeding and in pain, with a blunt force injury to his right eye area. He said his wallet and phone had been stolen.

Taylor was taken to a hospital. An officer interviewed him there. He said he had been robbed by "Jeremy" and "James"; he gave descriptions that fit defendant and defendant's brother. He added that "they [had] done this before to him."

Taylor had a fractured eye socket and a laceration to the back of his head. He had surgery and was hospitalized for a total of eight or nine days. He was left with blurred vision in his right eye and a scar on the back of his head.

2. Taylor's second statement.

Five days later, the same officer interviewed Taylor again. This time, Taylor picked defendant and his brother James out of photo lineups. He identified defendant as Jeremy, who "hit me in the head with . . . a shotgun," and James as defendant's brother, who was also there. He denied "beefing" with them.

Taylor said he walked his dog, then left the dog home and walked to an ARCO gas station. When he was across the street from defendant's family's house, he testified, "I seen a shadow move and I turned around and 'BLAM!'" Defendant hit him with a shotgun, swinging it like a baseball bat. The shotgun was black and silver. Taylor said the barrel struck his face. However, he also said "he wasn't sure" whether he was hit with the butt or the barrel, "because it happened so fast."

Taylor tried to run, but James tackled him. As he was trying to get away, someone hit him in the back of the head. They said, "Give me your shit" and emptied his pockets. They got his cell phone, his cigarettes, and his wallet.

Taylor started screaming. Somebody, possibly defendant's father, came out of a house and said, "Why you guys doin['] this[?]" Taylor then got away. He ran home but collapsed in the driveway.

3. Taylor's trial testimony.

At trial, Taylor admitted prior felony convictions for residential burglary in 2006 and for larceny in 2008, both in Illinois. He also admitted that, as of 2018, he was an alcoholic and a drug addict. He had purchased methamphetamine from defendant's brother Anthony; he had also spoken to James once or twice.

About three weeks before the charged crimes, Taylor saw defendant outside a donut shop. Defendant asked him for cigarettes, then "[s]ucker punched" him in the face. Taylor ran into the donut shop; defendant left.

Taylor did not call the police because defendant had a Northside Colton gang tattoo. However, Taylor's brother said he would talk to defendant's uncle and "handle" the "situation." Through his brother, Taylor learned defendant's name.

On August 16, 2018, Taylor walked to a liquor store, bought a 40-ounce beer, drank it, then started walking home. When he was on Olive Street, across the street from defendant's house, he turned around and saw defendant and defendant's brother James. Defendant was holding a black and silver shotgun. Defendant said, "Break yourself or get naked"; "you know what this is." That meant they were robbing him. He turned over everything he had on him, including a cell phone, a wallet, cigarettes, and headphones.

Defendant then "lunged" at Taylor with the shotgun and "smashed" him in the face with the butt. Taylor denied telling police that defendant swung the shotgun like a baseball bat. Taylor "wrestl[ed]" with defendant, trying to grab the shotgun, but James hit him in the back of the head. Their father came out and yelled, "Hey, what's going on[?]" Defendant and James were distracted, and Taylor ran "for [his] life." He got to his driveway and screamed for help before collapsing.

4. The search of defendant's family's house.

On September 5, 2018, the police searched defendant's family's house. There were 14 or 15 people inside, 9 or 10 of whom were adults.

Defendant was in a shed in the back yard that had been converted to a bedroom. He did not come out until the police had been issuing commands on a loudspeaker for 15 minutes.

The police did not find a shotgun, nor did they find anything belonging to Taylor. However, the house was extremely cluttered, including by bags of trash, so the police were not able to search everything. In the main house, in a safe inside a closet, they did find a .22-caliber rifle.

When the police interviewed defendant, he denied having been in a fight, knowing Taylor, or being a gang member.

5. Gang evidence.

Gang experts testified that defendant and his brother were members of the Northside Colton gang. One gang expert testified to the primary activities of Northside Colton and to crimes of which its members had been convicted. In her opinion, defendant and his brother committed the charged assault and robbery in association with and for the benefit of the gang.

B. The Defense Case.

Defendant took the stand and admitted hitting Taylor, but only with his fist, and only in defense of habitation. He admitted a 2014 felony conviction for assault with a deadly weapon. He also admitted that he was a member of Northside Colton, but he testified that James was not.

Defendant testified that he knew Taylor because Taylor had once used drugs with James at defendant's house. He denied hitting Taylor at the donut shop.

Once, according to defendant, Taylor walked into defendant's house through the side door, without knocking. Defendant told him to leave.

On August 16, 2018, defendant found Taylor using drugs with James again. Taylor became "loud, disrespectful," and "belligerent." Defendant told him, more than once, to leave. Taylor refused to leave, so defendant punched him once in the face. Defendant's father came in; he, too, told Taylor to leave. Taylor then left.

When defendant was arrested, the police asked if he had been in a fight near his house; he said no, because it had been inside the house. However, he admitted falsely denying that he knew Taylor.

II STATEMENT OF THE CASE

During jury selection, defendant made an oral Marsden motion,^[2] based on trial counsel's failure to try to obtain surveillance video. The trial court denied the motion.

Defendant and James were tried together. Defendant was convicted of assault with a firearm (Pen. Code, § 245, subd (a)(2)),^[3] with enhancements for personal use of a firearm (§ 12022.5, subd. (a)) and for personal infliction of great bodily injury (§ 12022.7, subd. (a)). James was acquitted of assault with a firearm. The jury hung on a charge of robbery and on a gang enhancement; the trial court dismissed these.

In a...