The People v. Francisco Villa, double murder by VNE member

PEOPLE v. VILLA
THE PEOPLE, Plaintiff and Respondent,
v.
FRANCISCO VILLA, Defendant and Appellant.
No. B212116, consolidated w/BA269952,
Court of Appeals of California, Second District, Division One.

Filed April 23, 2010.

Joseph C. Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Francisco Villa of two consolidated counts of first degree murder and one count of attempted second degree robbery. The jury also found that in committing these crimes Villa discharged a firearm causing death (Pen. Code 12022.53, subd. (d))[1] and that he committed all three crimes for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Finally, the jury found true the multiple murder special circumstance allegations ( 190.2, subd. (a)(3)) and the intentional gang killing special circumstance allegations ( 190.2, subd. (a) (22)). The court sentenced Villa on each of the murder counts to consecutive prison terms of life without parole, plus 25 years to life on the firearm discharge enhancement. On count 3, the court sentenced him to a term of three years (one-half the upper term) plus 25 years to life for the gun enhancement and 10 years on the gang-benefit enhancement. he court ordered all the sentences to run consecutively.

We affirm the judgment as modified.[2]

FACTS AND PROCEEDINGS BELOW

A. The Murder Of Manuel Palacios

Two rival gangs, the Varrio Nueva Estrada (VNE) and the Eighth Street Gang (ESG), claimed Lou Costello, Jr. Park and the surrounding area as their territory.

In November 2002, Martin Gonzalez, not a gang member, and another person who belonged to VNE were in the park when an ESG member shot at them and hit Gonzalez in the buttocks.

Two days later, Gonzalez returned to the park with two VNE members, one of whom was defendant Villa, whom Gonzalez knew as Shady. Villa was carrying a guitar case. The other VNE member carried a semiautomatic handgun. Once in the park, Villa opened the guitar case and pulled out what appeared to be an assault rifle, pointed the rifle at the apartments across the street from the park and asked Gonzalez if he recognized any ESG members among the people in the parking lot between the apartment buildings. Gonzalez either did not respond or responded in the negative. In any event, Villa began firing his rifle in the direction of the apartments.

At the moment Villa began firing, Manuel Palacios, not a gang member, was standing on the sidewalk across from the park unloading groceries from his vehicle. His wife and two of his sons were standing nearby. One of Villas bullets struck and killed Palacios.

The next day, Villa asked Gonzalez if he was going to say anything to anyone. Gonzalez answered, [n]o. When Stomper, a VNE gang member, showed up, Villa described the shooting at the park and boasted that he had shot and killed an innocent man.

Sometime after the murder, Gonzalez went to the police and told them Villa was the person who had shot Palacios. He identified Villa from an array of photographs. The prosecutor granted Gonzalez immunity from prosecution in the Palacios murder in return for his truthful testimony. At trial Gonzalez testified that there was no doubt in his mind that Villa was the shooter.

Miguel Pereira, an ESG member, informed police that around the time of the Palacios murder, he was in Lou Costello, Jr. Park when he saw Shady from VNE with what appeared to be an assault rifle shooting in Pereiras direction. He identified Villa from a photographic lineup as Shady.

B. The Murder Of Christopher Marquez

In July 2003, Christopher Marquez and his girlfriend, Linda Mejicanos, were walking toward Mejicanos mothers apartment in Estrada Court, near the park, in territory claimed by the VNE gang. Marquez was pushing a bicycle he had just purchased when Villa approached, grabbed Marquezs bicycle and asked him, Where you from, meaning what gang do you claim. Marquez, who was not a gang member, responded, Pico Nueva, the name of a gang in Pico Rivera where he lived.[3] Villa then demanded, Give me your bike. When Marquez did not let go, Villa punched his face, causing Marquez to stagger and the bicycle to fall. Two VNE gang members appeared from around a corner and one said to Villa, Hey, Ive got a gun. Villa responded, Oh, good. Give it to me. Taking the gun, Villa loaded [it] up and announced that he was going to fking kill Marquez. Marquez raised his open hands and turned his back saying, Take whatever you want and not to do nothing to him. Villa shot Marquez multiple times and then ran away with the two other gang members. Marquez died from a gunshot wound in his heart.

At trial, Mejicanos identified Villa as the person who shot Marquez. She testified she had seen Villa more than 30 times at Estrada Court and he had once told her that he was from VNE and his nickname was Shady. In addition to identifying Villa at trial, Mejicanos earlier selected Villa in a photographic lineup from the VNE gang mug book. She was [one] hundred percent positive that he was the shooter.

The Peoples gang expert testified that the most important thing in the gang culture is to garner and maintain respect. A gang member earns respect by committing hardcore crimes or violent crimes and a gang member that is willing to do violence towards other enemy gang members, is very highly-respected. Other than killing a police officer, the most respect [one] can get is by killing a rival gang member, which benefits the gang, because [i]ts going to give the gang reputation, more respect, more status and this gang will be more fear[ed] within the gang community. The gang member himself will get more status within the gang and climb up and be a leader of the gang. The expert testified that the primary activities of the VNE gang included robberies, possession of weapons, and homicides. He further testified that Villa was a [v]ery active VNE gang member at the time of the murders. Based on hypothetical facts similar to the facts presented to the jury, the expert opined that both shootings were for the benefit of VNE.

Villa did not testify. He relied on an alibi defense as to the Palacios murder and presented expert evidence challenging the credibility of Gonzalez, who had acknowledged methamphetamine use on the date of Palacios murder. The expert testified that the methamphetamine use described by Gonzalez could cause problems with memory, attention and recollection of events. Methamphetamine users often experience delusions and thus may report events that did not occur. They are often unreliable and may minimize or embellish the truth. Nonetheless, the expert admitted that it was [d]efinitely possible for someone high on methamphetamine to remember a violent event, like a shooting or a murder, . . . and then later on relate what they saw and what they heard to another person accurately.

DISCUSSION

I. CONSOLIDATION OF THE MURDER CHARGES

Villa contends that the trial court erred in consolidating the two murder charges. In a related argument he contends that by failing to object to the consolidation before and during trial, his counsel failed to provide him with effective assistance.

Villa forfeited any claims of improper consolidation based on factors that existed before trial by not preserving those claims with the appropriate objections or motion. (People v. Kopp (1969) 275 Cal.App.2d 38, 40 [objection to joinder required].) We nevertheless address the merits of his pretrial contentions in view of his claim that his counsel was ineffective in not challenging the consolidation. Of course, if it can be shown that, because of the consolidation, factors arose during the trial that operated to deny Villa a fair trial these factors can be raised on appeal regardless of the lack of a pretrial objection. (People v. Simms (1970) 10 Cal.App.3d 299, 308-309.)

A. Cross-Admissibility Of Evidence

Originally, Villa was charged in separate informations with the murders of Palacios and Marquez. The trial court granted the Peoples motion to consolidate these cases and to add the multiple murder and intentional gang killing special circumstances allegations. At trial, the information was further amended to add the attempted robbery of Marquez as count 3.

An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . ( 954)

Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation] . . . . [Citation.] Thus [a] defendant can prevent consolidation of properly joined charges only with a clear showing of prejudice . . . . [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 409, fn. omitted.) We review the courts decision to consolidate the charges for abuse of discretion. (Id. at p. 408.)

Consolidation was permitted here because each victim was a victim of the same class of crimesmurder. ( 954.) The burden thus rests on Villa to show a clear abuse of discretion. (Ochoa, supra, 19 Cal.4th at p. 409.)

Villa argues that when evidence of the crimes is not cross-admissible consolidation is prejudicial and should not be permitted. The law is to the contrary. Our Supreme Court has stated: [W]here two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact. . . . Thus, cross-admissibility is not the sine qua non of joint trials. [Citation.] (People v. Geier (2007) 41 Cal.4th 555, 576, italics omitted.)

In any event, evidence of the circumstances of each murder was admissible and relevant to show intent and motive; namely that VNE gang members enforced the sovereignty of VNE-claimed turf by shooting perceived rival gang members on their claimed turf or as invaders of VNE territory. The evidence supports the conclusion that Palacios murder resulted from a turf war between the VNE and ESG. Villa was so intent on retaliation for a perceived ESG shooting that, without regard to innocent bystanders, he indiscriminately sprayed a barrage of bullets toward apartment buildings located within ESG-claimed territory.

The evidence also showed that the murder of Marquez was prompted by a substantially similar gang-related motive. Villa perceived that Marquez was disrespecting VNE and Villas status as a member of VNE. This incident took place in Estrada Court, VNE-claimed turf. Villas demand that Marquez give up his bicycle was not simply a run-of-the-mill attempted robbery. Rather, it accompanied the gang provocative question where you from, informing Marquez that Villa was a gang member and that Villa considered Marquez to be a possible rival. Marquezs response, though apparently mistaken, revealed him to be a rival of VNE. The jury was entitled to infer that Villa shot Marquez because Marquez was a member of a rival gang and his refusal to give up his bicycle was a direct affront to VNE generally and Villa personally.[4]

B. Factors Arising During Trial

Villa correctly asserts that [e]ven if the [consolidation] ruling [were] correct when made, we must reverse if defendant shows that [consolidation] actually resulted in gross unfairness, amounting to a denial of due process. [Citation.] (Ochoa, supra, 19 Cal.4th at p. 409.) He contends that even if the lack of crossover admissibility was not prejudicial in itself, the courts instructional errors, the spillover effect of trying the two cases together, and various other errors combined to deprive him of a fair trial. We disagree.

1. Limiting instructions

The court did not err in failing to give the jurors an instruction restricting them from considering the evidence of one incident with regard to another. In view of the cross-admissibility of the evidence to show intent, (see discussion above), the trial court was not required to instruct the jury not to consider the evidence of one murder in considering the other murder. (Ochoa, supra, 19 Cal.4th at pp. 409410.)

The court did, however, instruct the jury under CALCRIM No. 1403 that: You may consider evidence of gang activity only for the limited purpose of deciding whether a defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements and special circumstances allegations charged or the defendant had a motive to commit the crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.

Villa contends that giving CALCRIM No. 1403 impermissibly allowed the jury to consider gang evidence to determine whether he committed the charged crimes, not just the gang-related enhancements. Not so. CALCRIM No. 1403 correctly states the law regarding admissibility of gang-related evidence, which is not restricted solely to proving gang-related enhancements. [E]vidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. (People v.Samaniego (2009) 172 Cal.App.4th 1148, 1167.) Similarly, [e]vidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent [citations] . . . . (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Accordingly, [g]ang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. (People v. Samaniego, supra, 45 Cal.4th at p. 1167.) This instruction properly directed the jury to consider whether the otherwise apparently senseless murders of Palacios and Marquez were motivated by gang-related goals.

Villa concedes evidence of gang membership and some expert testimony can be relevant on nonenhancement issues such as motive but argues that the instruction given was not so limited and impermissibly allowed consideration of all the expansive expert testimony on things like primary activities and anecdotes about other crimes and violence, which was only relevant to enhancement issues or as non-truth basis of opinion, on key substantive issues on the charged crimes and even allowed circular use of one or both charged crimes on a variety of disputed substantive issues, on the charged gang-related crimes, well beyond gang enhancement elements.

Contrary to Villas claim, giving CALCRIM No. 1403 did not open the door for jurors to blur and bootstrap gang expert testimony hearsay, as well as all the charged gang-related offenses (also gang activity), on every disputed issue in the case. Rather, CALCRIM No. 1403 expressly admonished the jury that it may consider evidence of gang activity only for the limited purpose of deciding whether defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements and special circumstance allegations charged or defendant had a motive to commit the crimes charged and may also consider this evidence when [evaluating] the credibility or believability of a witness and when [considering] the facts and information relied on by an expert witness in reaching his or her opinion. The jury was further admonished that that it may not consider this evidence for any other purpose and specifically, that it may not conclude from this evidence that defendant is a person of bad character or that he has a disposition to commit crime.

Additionally, CALCRIM No. 303 instructed the jury that [d]uring the trial, certain evidence was admitted for a limited purpose and that the jury may consider that evidence only for that purpose and for no other. The jury is presumed to have understood and adhered to these instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Any potential misuse of the gang-related evidence, including expert testimony, was dispelled by these limiting instructions.

2. The spillover effect of the evidence in the two cases

Villa next contends that unfairness resulted from the spillover effect of trying the unusually visceral murder of Palacios with the inflammatory murder of Marquez. As we discuss below, the facts concerning the commission of one murder as compared to those of the other were not likely to unduly inflame the jury, nor was the evidence underlying one charge, the Palacios murder, particularly prejudicial. Moreover, the evidence related to each charge was independently ample to support [Villa]s conviction of both crimes. (People v. Soper (2009) 45 Cal.4th 759, 784.)

According to Villa, [b]oth murders were . . . inflammatory but Palacios murder was especially so, because the parade of family members, new to the area, testifying to the tragic killing of their father and husband before their eyes as he unloaded groceries were unusually visceral. He urges such evidence also had the potential for emotional spill[]over to bolster the two weak murder cases with spillover prejudicial impact[ on] several LWOP issues, including joinder of multiple murder LWOP allegations, and unfairly encouraged findings of gang intent . . . , as well as premeditation and intent to commit robbery-murder, and specific intent to kill and active gang membership for purposes of the gang special circumstances. (Italics omitted.)

We cannot agree that the slaying of Palacios was significantly more inflammatory than the murder of Marquez. Both victims were innocent bystanders murdered, according to the gang expert, to further Villas quest for gang status. Furthermore, any prejudicial impact from the emotional testimony of Palacios family members was ameliorated by the trial courts specific instruction to the jury to decide what the facts are . . . based on the evidence that has been presented . . . in this trial and not [to] let bias, sympathy, prejudice . . . influence [its] decision. The jury is presumed to have understood and followed this instruction. (People v. Holt, supra, 15 Cal.4th 619, 662.)[5]

II. CALCRIM NO. 373

The court gave the jury an instruction based on CALCRIM No. 373 as follows: The evidence shows that persons may have been involved in the commission . . . of the crimes charged against the defendant. There may be many reasons why someone who appears to be involved may not be a codefendant in this particular trial. You must not speculate about whether those other persons have been, or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged.

Villa contends this instruction deprived him of his right to confront and cross-examine witnesses against him (U.S. Const., 6th Amend.) because it impermissibly chills jurors consideration of significant accomplice witness bias going to credibility by advising the jury not to speculate whether the witness will be prosecuted for his own criminal activity. As we will explain, the court erred in leaving out part of the instruction but the error was harmless.

CALCRIM No. 373 sets forth the jurys duty to decide whether the defendant on trial committed the charged crime and instructs the jury not to speculate whether persons who appear to be involved in these crimes have been or will be prosecuted. This instruction was applicable to the evidence concerning both the VNE gangster who held a semiautomatic handgun during the shooting spree that killed Palacios and the person who provided Villa with the gun that killed Marquez, neither of whom testified.

On the other hand, the instruction was inapplicable to Gonzalez, a possible accomplice in the Palacios shooting, because his credibility could validly be challenged on the ground that he had received immunity from prosecution based on his testimony. Thus as to Gonzalez the jury should have been instructed according to the bracketed language of CALCRIM No. 373 that [This instruction does not apply to the testimony of] Gonzalez. (See CALCRIM No. 373 BENCH NOTES: If other alleged participants in the crime are testifying, this instruction should not be given or the bracketed portion should be given exempting the testimony of those witnesses.)

Omission of the bracketed language of CALCRIM No. 373 was not prejudicial, however, because the jury would have understood from the totality of the instructions that any criminal activity on the part of Gonzalez negatively impacted his credibility. (See People v. Fonseca (2003) 105 Cal.App.4th 543, 549550.) In particular, CALCRIM No. 334 instructed the jury to determine whether Gonzalez was an accomplice, i.e., someone who is subject to prosecution for the identical crime charged against the defendant, and advised the jury that [a] person may be an accomplice even if he is not actually prosecuted for the crime. CALCRIM No. 334 also admonished the jury to view with caution any statement or testimony of an accomplice tending to incriminate Villa and to give such statement or testimony the weight the jury thought it deserves after examining it with care and caution and in the light of all the other evidence. (CALCRIM 334, italics added.)

III. CALCRIM NO. 358

Pursuant to CALCRIM No. 358, the court instructed the jury: You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made . . . any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements.

Villa contends that in giving CALCRIM No. 358, the trial court was required but failed to sua sponte include the bracketed language instructing jurors to [Consider with caution any statement made by [the] defendant tending to show [his] guilt unless the statement was written or otherwise recorded.] Although we agree that failure to give the bracketed portion of the instruction was error we find its omission was not prejudicial.

The court should have instructed the jury with the bracketed language because the court admitted Villas oral out-of-court incriminating statements. Gonzalez testified that Villa told fellow VNE member Stomper that he had shot and killed an innocent man the previous night. Mejicanos testified that Villa asked Marquez, Where you from; told the person with the gun to [g]ive it to me; and announced he was going to fking kill Marquez.

The courts error, however, was harmless.

The jury must have believed Gonzalezs testimony that Villa shot Palacios or they would have acquitted Villa of that crime. It is not reasonably probable that the jury would have believed Gonzalezs testimony that Villa shot Palacios but disbelieved his testimony that Villa admitted the crime the next day.

With regard to the Marquez murder, considering the overwhelming evidence of Villas guilt he has not met his burden to show that a result more favorable to him would have been reasonably probable in the absence of the error. The uncontroverted evidence established that Villa, an admitted VNE gang member, shot an unresisting victim without provocation, with the assistance of two other gang members. Before the shooting Villa announced his intent to kill Marquez, loaded the gun handed to him by his accomplice and shot Marquez multiple times at close range. Mejicanos, who knew Villa, positively identified him as the shooter both at trial and when earlier viewing a photo lineup. Further, she identified Villa at trial despite being threatened not to testify.

IV. CALCRIM NO. 220

Villa argues his right to have a jury determine all of the issues beyond a reasonable doubt was violated because CALCRIM No. 220 precluded the jury from considering the absence of evidence and allowed the jury to apply the lesser abiding conviction standard to convict him. We hold the instruction on reasonable doubt was proper.

The jury was instructed that [p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that wasreceived throughout the entire trial. (CALCRIM 220, italics added.)

Villas challenge to the above italicized language as lessening the Peoples burden to prove a defendants guilty beyond a reasonable doubt has been consistently rejected by the reviewing courts. (See, e.g., People v. Ramos (2008) 163 Cal.App.4th 1082, 10871088, and cases cited). He offers nothing new or different that would warrant revisiting this settled issue.

V. CUMULATIVE PREJUDICE OF TRIAL COURTS ERRORS

Villa contends reversal of the judgment is required because the cumulative effect of the trial courts errors deprived him of due process of law and a fair trial by an impartial jury. We disagree.

We have held that only two of Villas assignments of error have meritthe courts instructional errors in giving CALCRIM Nos. 373 and 358and that both of those errors were harmless. Having reviewed the whole record before us, we are persuaded it contains strong evidence of Villas guilt and that it is not reasonably probable that the cumulative effect of those two errors prevented Villa from obtaining a more favorable result. (People v. Redmond (1981) 29 Cal.3d 904, 914; People v. Cunningham (2001) 25 Cal.4th 926, 1009 [The few errors that occurred during defendants trial were harmless, whether considered individually or collectively. Defendant was entitled to a fair trial but not a perfect one.].)

VI. MODIFICATION OF VILLAS SENTENCE FOR ATTEMPTED ROBBERY

Villa contends the trial court erred in orally imposing six years as the term for his attempted robbery conviction in count 3 and that imposition of an unstayed term on that count violated section 654 and denied him of due process of law and his right against double jeopardy. Although acknowledging that the trial court imposed six years, the upper term for robbery, rather than the three-year upper term applicable to attempted robbery, the People assert this error was not prejudicial, [b]ecause there was no objection from counsel and the abstract of judgment correctly reflects a three year term and a correct 38 year total sentence [on the robbery count]. The People agree that the sentence on count 3 must be stayed.

Although the reporters transcript reflects the trial court pronounced a six-year term, the clerks transcript recites the court imposed a three-year term for Villas attempted robbery conviction. [W]hether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. (People v. Harrison (2005) 35 Cal.4th 208, 226.) Because it reflects the right sentence, we deem the recital in the clerks transcript to be the correct record. The People agree that Villas sentence on count 3 must be stayed under the multiple punishment bar of section 654. We concur. Accordingly, we will order Villas sentence on count 3 stayed.

DISPOSITION

The judgment is modified to stay the sentence on count 3. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

Posted by on Apr 23 2010. Filed under Legal. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

2 Comments for “The People v. Francisco Villa, double murder by VNE member”

  1. Smiley VNE Dukes

    Growing up in Boyle heights in the late. 60 early 70 it was fist fighting why can’t u youngster go back to go one on one guns r for fartsonly in our days as youngster we were the only gang at the park

  2. Smiley VNE Dukes

    Fist to fist was the day in the late 60 early 70

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