People v. Nunez

THE PEOPLE, Plaintiff and Respondent, v. RODOLFO NUNEZ et al., Defendants and Appellants.

E071815

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 28, 2021

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING[NO CHANGE IN JUDGMENT]

THE COURT

The petition for rehearing filed on April 29, 2021, is denied. The opinion filed in this matter on April 28, 2021, is modified as follows:

On page 5, in the paragraph that begins, "We find no merit to each defendant's claims," replace "Rodriguez's claim" with "defendants' claims." The paragraph should read:

We find no merit to each defendant's claims of trial error and no merit to defendants' claims that the matter must be remanded for the court to consider whether to impose a lesser firearm enhancement on count 1.

On page 99, in the paragraph that begins, "But in Yanez," remove "(plur. opn. of Ramirez, J.)." The paragraph should read:

But in Yanez, this court followed Tirado, not Morrison. (Yanez, supra, 44 Cal.App.5th at p. 459 ["[N]othing in the plain language of sections 1385 or 12022.53, subdivision (h) suggests an intent to allow a trial court discretion to substitute one sentencing enhancement for another."]; see also Valles, supra, 49 Cal.App.5th at pp. 165-167 [similarly concluding that "[t]he express language of sections 1385 and 12022.53, subdivision (h)" does not "authoriz[e] the substitution of a lesser enhancement for a greater enhancement, properly found true at trial, and for which there is no legal impediment to imposition"]; but see Valles, at pp. 170-172 & fn. 1 (conc. opn. of Menetrez, J.) [finding insufficient basis to depart from this court's decision in Yanez, but agreeing with Morrison, noting that Tirado and Yanez "frame[d] the issue incorrectly by asking whether the amended statute 'conveys the power to change, modify, or substitute a charge or enhancement,' " and concluding that the correct question is whether the court, "having exercised its power under the amended statute to strike a greater enhancement," "still has its previously recognized power to impose an uncharged lesser" enhancement].) Based on this court's decision in Yanez, remand for resentencing on each defendant's section 12022.53, subdivision (d) firearm enhancement is unwarranted.

These modifications do not change the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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.Nos. FWV17003089 & FWV17003091)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed in part; reversed in part with directions.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Rodolfo Nunez.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Rodriguez.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton, Deputy Attorney General, for Plaintiff and Respondent

I. INTRODUCTION

Defendants Rodolfo Nunez and Alfredo Rodriquez were tried together before separate juries and convicted of the first degree premeditated murder of Ofakitonga Kofu on July 10, 2017. (Pen. Code, §§ 187, 189, subd. (a),¹ count 1.) Rodriguez was also convicted of unlawfully possessing a firearm as a felon. (§ 29800, count 2.)

Rodriguez's jury (the red jury) further found that Rodriguez personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)), and that Rodriguez committed the murder and unlawfully possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Nunez's jury (the blue jury) found that a principal (Rodriguez) personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)), and that the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)

Rodriguez was sentenced to five years plus 60 years to life.² Nunez was sentenced to 50 years to life.³ The court ordered each defendant to pay a $300 restitutionfine (Pen. Code, § 1202.4, subd. (b)) and $70 in court assessments on each of their convictions. (Pen. Code, § 1465.8; Gov Code, § 70373.)

Rodriguez raises 10 claims of trial, sentencing, and clerical error. He first claims that his murder conviction must be reversed because the trial court prejudicially erred (1) in denying his motion to suppress the statements he made during his police interview after he unequivocally invoked his right to counsel; (2) in allowing the prosecution's gang expert to testify to case-specific hearsay—namely, that his gang, the El Monte-Flores (EMF) was required to follow directions from the Mexican Mafia and targeted African- Americans; (3) in excluding evidence of Kofu's prior robbery conviction (Evid. Code, § 1103); and (4) in admitting hearsay statements from a 911 caller who reported hearing the shooting and persons making statements at the time of the shooting. Rodriguez also claims (5) the prosecutor misstated the law of premeditation and deliberation during closing argument; and (6) the cumulative effect of the trial errors requires reversal of his murder conviction.

Regarding sentencing, Rodriguez claims (7) remand for resentencing is necessary so the court may consider whether to impose a lesser firearm enhancement on count 1; (8) his 10-year term on the gang enhancement in count 1 is unauthorized and must be stricken in favor of making his life term on count 1 subject to a 15-year minimum parole eligibility period (MPEP) (§ 186.22, subd. (b)(5)); and (9) the trial court violated his due process rights in imposing the $300 restitution fine and $140 in court assessments without determining whether he was able to pay them. Lastly, Rodriguez claims that(10) clerical errors in the sentencing minute order and his abstracts of judgment must be corrected.

Nunez raises 12 claims of trial and sentencing error. He claims his first degree premeditated murder conviction must be reversed because (1) insufficient evidence shows he directly aided and abetted Rodriguez in committing the murder; (2) the instructions, including CALCRIM No. 403, erroneously allowed the jury to convict him of first degree premeditated murder based on a natural and probable consequences theory; and (3) effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated liability for murder based on the natural and probable consequences doctrine, and the legislation applies retroactively to nonfinal judgments on direct appeal.

Nunez also claims (4) the prosecution failed to prove the primary activities element of the gang enhancement allegation in count 1; (5) the prosecution's gang expert was erroneously allowed to testify that, because the murder was preceded by a gang confrontation, it was reasonably foreseeable that a murder would result; (6) the trial court prejudicially erred in admitting Rodriguez's hearsay statements that Nunez was the aggressor in the confrontation with Kofu; (7) the trial court erroneously admitted the 911 caller's hearsay statements (Rodriguez's 4th claim of error); (8) in closing argument, the prosecutor misstated the elements of aider and abettor liability for premeditated first degree murder; (9) the matter must be remanded for resentencing so the trial court may consider whether to impose a lesser firearm enhancement on count 1 (Rodriguez's 7th claim of error); (10) trial court violated his due process rights in imposing a $300 restitution fine and $70 in court assessments without determining whether he was able topay them (Rodriguez's 9th claim of error); and (11) the cumulative effect of the trial errors requires reversal. Lastly, Nunez joins Rodriguez's eighth claim of error, that (12) the 10-year gang enhancement on count 1 was unauthorized and must be stricken in favor of subjecting Nunez's life term on count 1 to a 15-year MPEP.

We find no merit to each defendant's claims of trial error and no merit to Rodriguez's claim that the matter must be remanded for the court to consider whether to impose a lesser firearm enhancement on count 1. We further conclude that any error in imposing the $300 restitution fines and $70 per-conviction court assessments, without determining that defendants were able to pay them, was harmless beyond a reasonable doubt because the record shows that each defendant will be able to pay the fine and assessment amounts over time. The People concede, and we agree, that each defendant's 10-year gang enhancement on count 1 was unauthorized and must be stricken from each defendant's sentence, and that each defendant's indeterminate 25-year-to-life term on count 1 must instead be made subject to a 15-year MPEP. (§ 186.22, subd. (b)(5).)

We modify each defendant's sentence accordingly, and we remand the matter to the trial court with directions to prepare supplemental sentencing minute orders and amended abstracts of judgment, reflecting our modifications to each defendant's sentence regarding the gang enhancements and the 15-year MPEPs. In all other respects, we affirm each defendant's judgment of conviction and sentence.

II. FACTUAL BACKGROUND

A. Evidence Admitted Before Both Juries

1. The July 10, 2017 Shooting Death of Kofu

Around 11:30 a.m., on July 10, 2017, Rodriguez shot and killed Kofu following an argument between Kofu and Nunez outside of Kofu's home in Fontana. Kofu's brother, Tali, testified that Kofu was upset and angry that morning because Kofu had an argument with his mother. Kofu was affiliated with the Bloods street gang and regularly wore a red bandana...