The People v. Paredes

1

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL A. PAREDES, Defendant and Appellant.

B315125

California Court of Appeals, Second District, Eighth Division

July 31, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA472690. Mark Arnold, Judge.

Jin H Kim, 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, Steven D. Matthews and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

STRATTON, P. J.

Appellant Miguel A. Paredes was convicted of several gang-related violent crimes involving firearms. On appeal, he argues the trial court erroneously refused to consider the District Attorney's Special Directives when it considered the prosecution's motion to dismiss the gang and firearm allegations and when it allowed the introduction of preliminary hearing testimony of an unavailable witness. He also contends the gang enhancements should be vacated due to changes in the law. We affirm the convictions, vacate the true findings on the gang and firearm enhancement allegations, and remand the matter for a new hearing on the prosecution's motion to dismiss those allegations.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 a.m. on October 27, 2018, Paredes walked through a tent encampment and encountered Audriana Sandoval Rene Figueroa, and a man called "Joe Joe." Paredes asked Figueroa where he was from; Figueroa denied being a gang member. Paredes demanded Figueroa lift his shirt, and when Figueroa hesitated, Paredes pulled out a gun and pointed it at Figueroa's head. Figueroa, concerned for his safety, complied. Paredes asked Joe Joe if he was a gang member, and Joe Joe said no. Paredes walked away toward a bridge, tagging a pillar with spray paint as he went. When Paredes painted on the pillar, he crossed out "Avenues" and painted "HLP."

Omar Herrera^[1] was under the bridge with Anahi Flores when Paredes walked by holding a flashlight in one hand and a gun in the other. Paredes pointed the gun at Herrera's face asked what gang Herrera belonged to, and identified himself as a member of the Highland Park gang. Herrera was afraid for his safety. Herrera denied gang membership, and Paredes laughed and walked on. Paredes next approached Jesus Baena who was either a former or current member of the Avenues gang. Baena and Paredes exchanged words, and then Paredes fatally shot Baena.

Figueroa heard gunfire, then saw Paredes walking back the way he had entered the encampment. As he passed Figueroa, Paredes smiled and said, "[A]ll right, good night."

Herrera ran after Paredes and saw him enter a truck. Herrera described the truck to the police, and a truck matching Herrera's description was seen in surveillance video from the night of the shooting. The surveillance video also depicted the license plate of the truck, which led police to an address where they found the truck. The police began surveillance and Paredes was arrested.

After Paredes's arrest, he was placed in a cell with an undercover agent pretending to be a fellow inmate. Their conversations were recorded. Paredes identified himself as a Highland Park gang member, said he "popped" an "enemy" from "A-V-E-S" (the Avenues gang) under the bridge, and told the agent he had gone to the encampment for that purpose. During the conversation, Paredes described where he parked and how he entered the area. He also demonstrated how he shot the victim.

Paredes expressed the hope that the police did not find his clothes or "all the [gun]powder." The agent asked if he got rid of his clothes, and Paredes admitted he had kept his pants and had his belt with him. Paredes asked the agent to contact his family and ensure his pants were destroyed.

A few days after the shooting, Figueroa identified photograph numbers three and six in a photographic lineup, saying the man he saw had the facial structure of the person in photograph six but his face was more rounded, like the face of the person in photograph three. Paredes's photo was number six. Figueroa also selected a photograph in a second photographic lineup that did not include Paredes.

The police also showed Sandoval a photographic lineup. As soon as she saw the photographs, Sandoval looked scared and began to cry. Sandoval initially said, "I think that looks like him," but when the detective asked her which photograph she meant, she claimed not to know and said none of the photographs looked like the man she saw. The detective encouraged Sandoval to be strong and tell the truth and promised she would not have to write anything down. Sandoval pointed to Paredes's photograph and acknowledged she pointed at the photograph in position six.

Herrera selected Paredes's photograph from a photographic lineup but said he did not see the man well. When the detective asked Herrera to write down his identification, Herrera froze, his eyes widened, and he appeared frightened. The detective assured Herrera he did not have to write anything down, thanked him, and asked where he wanted to be dropped off. Herrera looked down, and then, after an awkward silence, he laughed nervously and said Paredes's photograph did not look like the man he had seen.

After a jury trial, Paredes was convicted of first degree murder (Pen. Code,^[2] § 187, subd. (a)), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), and possession of a firearm by a felon (§ 29800, subd. (a)(1)), all committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Additionally, the jury found true the allegations that in the commission of the murder Paredes used and personally discharged a firearm, causing death (§ 12022.53, subds. (b)-(d)), and that he personally used a firearm in the commission of the assaults with a semiautomatic firearm (§ 12022.5). Paredes was sentenced to 50 years to life plus 15 years in state prison. He appeals.

DISCUSSION

I. Motion to Dismiss Special Allegations

Section 1385, subdivision (a), provides that a judge may, upon the motion of the prosecutor," 'and in furtherance of justice'" order an enhancement allegation dismissed. (People v. Bonnetta (2009) 46 Cal.4th 143, 145-146.) Prior to trial, the prosecutor filed a motion to dismiss the firearm and gang enhancements pursuant to section 1385 based on Los Angeles County District Attorney Special Directives 20-08, 20-08.1, 2008.2, and 20-14. The court held a hearing at which the prosecutor confirmed he was seeking to dismiss the enhancement allegations solely because of the new District Attorney's policy. The court denied the motion stating, "These allegations . . . have been enacted into law by the Legislature. Just because it's something that the newly elected district attorney doesn't like or doesn't agree with, that is not legal authority. It's not legal precedent. It does not rise to the level required in [section] 1385. [¶] I do not find that the motion to dismiss comports with the interest of justice, and therefore the motion is denied."

Paredes argues the court abused its discretion by refusing to consider the Special Directives. The Attorney General agrees. We review an order denying a motion to dismiss a sentence enhancement under section 1385 for an abuse of discretion. (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 (Nazir).) "A trial court may abuse its discretion where 'its decision is so irrational or arbitrary that no reasonable person could agree with it,' 'where the trial court was not "aware of its discretion"' to dismiss a sentencing allegation under section 1385, or 'where the court considered impermissible factors in declining to dismiss.'" (Ibid.)

In deciding whether to dismiss an enhancement, "a court considers the same factors considered' "when handing down a sentence in the first instance."' [Citations.] These factors include those listed in California Rules of Court, rule 4.410 (general objectives in sentencing), rules 4.421 and 4.423 (circumstances in aggravation and mitigation), and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under section 1385). These rules refer to circumstances specific to the crime and the defendant's criminal history, as well as to broader societal objectives, such as '[d]eterring others from criminal conduct by demonstrating its consequences' and '[i]ncreasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.' (Cal. Rules of Court, rule 4.410(a)(4) &(8).) The rules state the trial court 'should be guided by statutory statements of policy, the criteria in [the Rules of Court], and any other facts and circumstances relevant to the case.' (Id., rule 4.410(b).)" (Nazir, supra, 79 Cal.App.5th at p. 497.)

In Nazir, the prosecutor moved to dismiss firearm enhancements alleged under sections 12022.5 and 12022.53 based on the Los Angeles District Attorney's Special Directive 20-08, which "instructed deputy district attorneys in pending cases to move to dismiss or withdraw sentence enhancement allegations." (Nazir supra, 79 Cal.App.5th at p. 486.) The trial court denied the motion based on its belief that it was not permitted to rely on the directive under People v. Williams (1998) 17 Cal.4th 148. (Nazir, at pp. 497-498.) The Nazir Court held Williams did not preclude the trial court from relying on the Special Directive, and therefore the trial court "misunderstood the scope of its discretion when it refused to consider Special Directive 20-08 in determining whether to grant the motion to dismiss the firearm enhancements." (Id. at pp. 497-498.) By its terms, the directive "was...