The People v. Moody

1

THE PEOPLE, Plaintiff and Respondent, v. TYRONE EUGENE MOODY, et al., Defendants and Appellants.

B308495

California Court of Appeals, Second District, Fourth Division

September 28, 2023

NOT TO BE PUBLISHED

Order Filed Date 10/27/23

APPEAL from a Judgment of the Superior Court of California County No. BA445427, Charlaine F. Olmedo, Judge. Affirmed in part as modified and reversed and remanded in part.

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Eugene Moody.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Vargas.

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

Rob Bonta, Attorney General of California, Lance E. Winters Chief Assistant Attorney General, Susan Sullivan Pithey Senior Assistant Attorney General, Noah P. Hill, David F. Glassman, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

THE COURT^[*]:

The opinion filed September 28, 2023, in the above-entitled matter is ordered MODIFIED as follows:

On page 4, to the second full paragraph, add a sentence after the first sentence: "Sometime thereafter, Moody arrived at the apartment."

On page 8, to the third full paragraph, add a sentence after the first sentence: "Moody said, 'don't shoot him.'"

On page 9, add the following sentence to the end of footnote 8: "Vargas's statements were not admitted against Moody and Perez."

On page 21, to the first sentence of the paragraph titled "Provision or use of lethal weapons," at the end of the sentence add the phrase, "and it was disputed who provided Vargas with the murder weapon."

On page 21, to the second sentence of the paragraph titled "Provision or use of lethal weapons," add the word "armed" after the word "not."

On page 21, at the end of the paragraph titled "Provision or use of lethal weapons," add footnote 11: "Although the prosecution argued that Perez provided the gun, the facts are in dispute. For purposes of substantial evidence review, we are not limited to the prosecutor's argument; thus, the factual theories argued are not the exclusive theories that may have been considered by the jury. (People v. Perez (1992) 2 Cal.4th 1117, 1126.)" The remaining footnotes are renumbered accordingly.

On page 22, to the first paragraph, delete the words "Moody knew that the .38/.45 gang gun had a propensity to shoot."

On page 22, add the following sentence to the end of the paragraph enumerated (4): "Although Moody implored Vargas not to shoot the cab driver, he did not attempt to physically stop Vargas."

On page 41, to the end of the full paragraph, add the following: "Further, for the same reasons, the error is harmless beyond a reasonable doubt and did not result in a violation of due process. (Chapman v. California, supra, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)"

On page 42, to the first paragraph under the heading "No Error In Failing to Give Pinpoint Instruction on Reckless Indifference to Human Life," add the words "and Vargas" to the first sentence after the word "Moody."

On page 46, at the end of the first full paragraph, add the following: "Nonetheless, Vargas asserts that because the evidence was in conflict supporting a finding he acted with reckless indifference, the omission was prejudicial with respect to him. We disagree, given abundant evidence supporting all factors of the Clark/Banks analysis, including the nature of the offense and the planning that went into it."

On page 46, to the second full paragraph beginning with the word "Thus," insert the following after that word: "claims of federal constitutional error are meritless."

On page 53, to the second full paragraph, first sentence, add the words "and Vargas" after the word "Moody."

On page 54, to the first paragraph, first full sentence beginning with the words "Where, as here," add the words "or Vargas" after the word "Perez."

On page 54, to the first paragraph, last sentence, add the words "and Vargas's police interviews" after the words "police interviews."

On page 60, in the first full paragraph, delete the words "they do" from the third sentence and replace it with "Moody does."

On page 60, after the first full paragraph, add the following paragraph: "Perez, however, argues his failure to object is excused as futile. Here, he asserts, no admonition could have countered the prosecution's arguments- the jurors knew that the prosecutor believed they should make a moral judgment regardless of the court's instructions, particularly given the circumstances surrounding Vargas's killing of Paz. (See, e.g., People v. Evans (1952) 39 Cal.2d 242, 247-248; People v. Alvarado (2006) 141 Cal.App.4th 1577, 1586 [admonition futile].) In any event, Perez contends that if the misconduct is not otherwise preserved, counsel was ineffective because there could not have been a reasonable tactical purpose for defense counsel's omission given the gravity of the misconduct and the obvious risk of unfair prejudice in the lowering of the People's federal constitutional burden of proof."

On page 60, to the second full paragraph, first sentence, at the beginning add, "We disagree because."

On page 65, at the end of the first full paragraph, add: "Moody and Perez also request remand for an exercise of discretion under amended section 654."

On page 65, at the beginning of the last full paragraph, after the word "Here," add "with respect to Vargas,"

On page 66, after the first full paragraph, add the following: "Further, Perez and Moody also argue that remand is required for resentencing. Here, the trial court imposed the same sentence for appellants Perez and Moody: life without the possibility of parole for the murder in count 1, plus 25 years to life for the principal firearm discharge enhancement. The court imposed the high term on count 5, the robbery, but stayed punishment under section 654. In sentencing both Perez and Moody, the court stated in mitigation each of them had minor criminal records, but the factors in aggravation-calling a taxi to an isolated location to enhance the success of the operation, the extremely violent nature of the crime, and the planning and sophistication- outweighed the mitigating factors.

"Perez asserts that he was 19 at the time of the offenses, and the court's choice of the upper term for robbery does not indicate a desire to punish him as harshly as possible because the court selected this term knowing that the entire sentence on count 5 would be stayed. Moody similarly argues that although the trial court imposed the high term on the stayed robbery count, Moody asserts that Vargas was the actual killer; Moody was only 20 years old at the time of the robbery; he joined the enterprise at the last minute; and attempted to dissuade Vargas from killing the taxi driver. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428.)

"Given the trial court's comments at the time of sentencing, we disagree that remand is required. The court found only one factor in mitigation but numerous factors in aggravation and these aggravating factors were severe. Thus, it is not likely that the trial court would change appellants' sentences."

On page 66, to the paragraph under the heading "CUMULATIVE ERROR," to the first sentence, add the word "Perez" after the word "Moody." Delete the remaining two sentences of the paragraph and add the following in their place: "We have either found no error or harmless error. Such errors do not accumulate. (People v. Leon (2020) 8 Cal.5th 831, 854.)"

These modifications do not change the judgment.

The petitions for rehearing are DENIED.

CURREY, P. J.

Appellants Tyrone Eugene Moody, Christopher Vargas, and Frank Perez (collectively, "defendants") planned and carried out the robbery of a taxi driver, during which Vargas shot and killed the driver. All three appellants were jointly tried before two separate juries,^[1] and all three were found guilty of first-degree murder (Pen. Code, § 187, subd. (a))^[2] with a robbery-murder special circumstance finding (§ 190.2, subd. (a)(17)(A)) and second-degree robbery (§ 211). The juries also found true gang (§ 186.22, subd. (b)(1)(C)) and gang-principal firearm-use and discharge allegations (§ 12022.53, subds. (b)-(d), (e)(1)). Vargas's jury separately found him guilty of carrying an unregistered, loaded firearm (§ 25850) and found true a taxi driver special circumstance allegation (§ 190.25, subd. (a)).

On appeal, defendants assert insufficient evidence supports that they were major participants in the underlying robbery who acted with reckless indifference to human life. Defendants also argue that the trial court committed instructional error; erred in admitting hearsay statements; and committed sentencing errors.

We affirm defendants' convictions, but remand for a retrial of the gang and firearm allegations.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Defendants Plan a Taxi Robbery.

Perez and Abel Mesta were members of the Choppers 12 gang. Moody was part of a tagging crew known as "RG," and although the crew was associated with the Big Hazard gang, Moody did not belong to either Choppers 12 or Big Hazard. Vargas was not a member of the Choppers 12 gang but wished to join. At the time of the offenses, defendants and Mesta were all 18 to 20 years old.

In March 2016, Perez (aka "Droopy") lived with his mother, Lorraine "Shorty" Hernandez. Although Hernandez was also a Choppers 12 member, she did not live near the gang's territory. Instead, Hernandez's apartment was near Big Hazard territory. Choppers 12 was on good terms with Big Hazard. The gangs shared...