Opinion
D076195
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CORRY ROACH, Defendant and Appellant.
Randall Bookout, under appointment by the Court of Appeal, on behalf of the Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. FWV1502979-2) APPEAL from a judgment of the Superior Court of San Bernardino County, Charles J. Umeda, Judge. Affirmed as modified. Randall Bookout, under appointment by the Court of Appeal, on behalf of the Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Corry Roach was tried by jury and convicted of two counts of murder, one count of attempted murder, three counts of robbery, and one count of participation in a gang with various special circumstances and enhancements. He challenges his conviction on multiple grounds and two aspects of his sentence. We reject most of his arguments but recognize that one of the sentencing issues he raises has merit. We will therefore vacate the gang enhancement on the attempted murder count that was imposed but stayed, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Hector Rivera wasn't supposed to survive the drug-related robbery in February 2015 that took the lives of Arturo S. and Mario P. at the auto garage from which the three men ran their drug distribution business. The perpetrators quite clearly intended to kill Rivera at the same time they executed Arturo and Mario. They slit Rivera's throat, shot him in the head and left him for dead, taking over $48,000 in cash and 15-20 pounds of methamphetamine. But Rivera survived. Hanging onto consciousness, he waited until he heard them leave and then ran. He was gone before police arrived. Rivera fled to Mexico to avoid a warrant, but eventually contacted the detective investigating the murders of Arturo and Mario and became the key witness in the government's case against Roach and David McKell.
Along with Mario and Arturo, Rivera imported large amounts of methamphetamine from Mexico and sold it in the United States. Rivera met Roach, who he knew only as "Guero," sometime in September 2014. Roach would typically buy a pound or two of meth from him. Between September and February, the two men met five or six times for drug sales. Some of their meetings were at the garage in Montclair (inland of Los Angeles, near Ontario). They also spoke on the phone and texted, sometimes with translation help, because Roach did not speak Spanish and Rivera knew limited English.
"Guero" means "like a white person."
On February 7, Rivera drove to Portland, Oregon with his girlfriend, Yalile P. (Mario's sister) to pick up $40,000 in drug money. On their way back the next day, they had car trouble and stopped in Sacramento. Rivera called Mario for help. While they were stranded, Roach contacted Rivera to arrange a drug purchase. Rivera told him it would have to wait because they were stuck in Sacramento. Roach offered to pick them up, but Rivera declined. Roach kept calling and eventually they arranged for Roach to meet Rivera and Mario at the Montclair garage when they returned.
They got back to Ontario sometime in the afternoon. Rivera dropped Yalile off and drove to the garage in Montclair. Mario met him there. Arturo arrived with at least 15 pounds of methamphetamine, which they stashed in a broken Audi along with the $40,000 in cash that Rivera received in Portland. Rivera and Arturo left to get food from Jack in the Box. When they returned, Roach had arrived with two men Rivera did not know. Roach introduced his associates to Rivera and they all shook hands. Rivera did not remember their names but remembered their faces well enough to identify them later as David McKell and "Pocho." Rivera, Arturo and Mario offered the three men food from their Jack in the Box run, and McKell shared some soda.
Rivera said this term means an American with Mexican parents.
While they were eating, Rivera pulled $8,000 in cash out of his pocket and put it on a table. Roach then excused himself, saying he forgot something in the car. When he came back, he and his associates pulled guns on Rivera, Mario and Arturo. They ordered the three to get on the floor and turned out their pockets, taking their phones, cash and wallets. Roach handcuffed Rivera; McKell restrained Mario while Pocho did the same to Arturo. Roach demanded the drugs, so Arturo (who was sporadically translating into Spanish for Rivera) told them where the key to the broken Audi was. From his vantage point on the floor, Rivera could see Roach and McKell open the Audi's trunk and take out the methamphetamine. In his limited English, Rivera asked Roach what happened and why he was doing this. Roach said something in English, but Rivera did not catch the meaning, and Arturo did not translate. Rivera kept asking, at which point the men came over and duct taped the victims' faces—wrapping the tape completely around their eyes, noses and mouths.
By working his mouth back and forth, Rivera was able to create a slit in the tape near one of his eyes that he could see through. He watched as Roach and McKell transferred the drugs into suitcases and found a backpack with the $40,000. At this point, Pocho was outside rearranging cars in the long driveway (the garage, which was set back from the street, had 20-30 cars parked outside). Rivera managed to get to his feet and took a few steps forward before McKell pistol whipped him, forcing him back to the ground.
Rivera then felt someone pull him up by his hair from behind. He heard Roach slowly say "dispensa"—an apology in Spanish—before a knife pierced his throat. He moaned from the pain. Arturo, who was laying next to Rivera, kicked the attacker, disrupting him. Rivera heard two gunshots. Then he heard Roach say "dispensa, Hector" and sensed a gun on his scalp. There was a loud noise; he felt a bullet penetrate and exit his head.
Rivera did not remember exactly when Roach used his name, but he heard "dispensa" once or twice and "dispensa, Hector" once.
Fighting drowsiness, Rivera heard a car (or cars) leaving the driveway. Arturo and Mario were silent. Rivera got up and walked out of the garage, struggling to breathe and barely able to see from blood running over his duct-taped face. Outside, he quickly ran into two neighbors, both named Victor. He told them he and his friends were robbed and asked for help removing the tape. They had nothing to cut the tape with, so Rivera went back to the garage, where he managed to move his handcuffed wrists to the front of his body and found a blade. He brought it to one of the Victors outside, who helped him cut most of the tape off his head. The other Victor called the police and told Rivera to wait. Not wanting to meet with law enforcement because he had a warrant, Rivera remembered there was a phone belonging to Yalile in one of the cars. He grabbed it, fled on foot, and called Yalile to pick him up nearby. When she came, Rivera would only tell her they were robbed, and he did not know what happened to her brother or Arturo.
After stopping at Yalile's uncle's house, where they took pictures of his injuries and removed the handcuffs, they arranged for Rivera to go to Mexico. He was both afraid of Roach and trying to avoid arrest. His cousin's friend picked him up that night, and he received medical care when they reached Tijuana. Rivera went to Mexicali for a couple of weeks, and later stayed in Michoacán.
Yalile and Rivera maintained contact while Rivera was in Mexico. Yalile was pregnant at the time. Although she was grieving for her brother, she was not initially forthcoming with the police. She pretended she did not know where Rivera was. But on February 9, she mentioned "Guero" to Montclair Police Department Detective Gloria Perez. She had met him once, three or four weeks earlier.
Mario and Arturo both died at the garage from gunshot wounds to the head. In late February, Detective Perez was linking their murders to a gang called AGK (Always Going Krazy). Roach, McKell, and a man named Efrain, who all went to school together, were members of the gang. The police conducted a series of interviews with Efrain and his girlfriend, Catherine. Based on these interviews, Perez assembled two six-pack photo lineups: one that featured both Roach and someone who either was or looked like Pocho, and one with McKell. In early March Perez showed the lineups to Yalile, who identified Roach as Guero. Yalile discussed her identification with Rivera. Rivera told her Guero was not involved. Later at trial, he explained he lied because he was concerned for Yalile's safety—he did not want Guero to harm her or their infant daughter, who had just been born.
On March 16, Rivera began to speak to Detective Perez on the phone from Mexico. He did not initially tell her he was familiar with his attackers or that he planned to meet them on February 8 for a drug sale. But he did say Guero was the only one who knew he would be at the garage that day. In the next call, he told Perez he could identify all the men if he saw them again. By their third call, he admitted Guero was involved. In one of these early calls, he also described his assailants as "two gueros" and "a pocho."
Meaning two white men and an American man with Mexican parents.
In late April, Perez conducted a photo identification by phone with Rivera. After Rivera agreed to the process, Perez sent him four six-packs via email and admonished him before he made an identification. He selected Roach and pointed out someone who looked like Pocho from one six-pack. He identified McKell from another. In July, Rivera met with detectives at the Arizona border, where he was interviewed and again identified Roach and McKell. Rivera eventually came back to California, was arrested on a drug charge, and entered protective custody.
Rivera picked out Roach from the same six-pack and identified a different picture of McKell.
In August 2015, the San Bernardino County District Attorney charged Roach and McKell with the following crimes: two counts of premeditated murder as to Mario and Arturo (Pen. Code, § 187, subd. (a) ); one count of attempted premeditated murder as to Hector Rivera (§§ 187, subd. (a), 664, subd. (a)); three counts of robbery (§ 211); and one count of street terrorism (§ 186.22, subd. (a)). Enhancements based on gang involvement and personal use of a firearm were alleged for each count (§§ 12022.53, subd. (d), 186.22). The second amended information added special circumstance allegations on the murder counts as to Roach. (§ 190.2, subds. (a)(3), (a)(17) and (a)(22).)
Future statutory references are to the Penal Code unless otherwise indicated.
McKell pled guilty to all counts and was recorded talking about the crimes in jail. In Roach's first trial the jury deadlocked and the court declared a mistrial. At the second trial, the jury heard testimony from several prosecution witnesses. Their case relied primarily on Rivera's eyewitness testimony, with some supporting statements and forensic evidence. Yalile, Efrain and Catherine all testified for the prosecution. Efrain said he, McKell and Roach were members of AGK, and that Roach went by the moniker "Guero." Catherine recounted a phone call she overheard between Roach and Efrain on February 20 where Roach told Efrain to keep his mouth shut and threatened him.
McKell initially pled guilty to all the charges, which included personal use of a firearm and acting as a principal. (§ 12022.53, subds. (d), (e).) He has since changed his plea, and the People request we take judicial notice of the agreement. We do so in accordance with Evidence Code section 452. The plea removed the enhancement under section 12022.53, subdivision (e) as to all counts.
In the recording, McKell claims he cut Rivera's throat and arguably says he shot all three men himself (there is some ambiguity in his language on this point). His statement was admitted at trial for the jury's consideration.
Two fresh cigarette butts were recovered at the garage with Roach's DNA on them. According to crime scene investigators, two guns were used—a .45- and a .38-caliber. But it was impossible to tell definitively which gun caused any of the gunshot wounds. The best approximation came from the location of the shell casings, which indicated perhaps Mario was shot with both guns, Arturo with the .45-calliber, and Rivera with the .38-caliber. The knife used on Rivera was recovered from a pool of blood and no prints could be lifted from it.
Toward the end of the trial, the prosecution elected to drop the firearm use allegations.
The defense argued this was a case of mistaken identity—that Rivera was a known liar and was either conspiring with Yalile to finger Roach for a crime he did not commit or confused about the identity of the man who attacked him. Roach's girlfriend Angelina E. testified she had never seen him around guns or large amounts of drugs, and he worked side jobs for an income. She said Roach knew Rivera from a car sale. According to her testimony, it was possible the cigarettes were at the garage from their early February visit for car maintenance.
The jury returned guilty verdicts on all counts and found true the enhancements and special circumstance allegations. Roach was sentenced to two consecutive terms of life without the possibility of parole for the murders of Mario and Arturo, with a consecutive term of 15 years to life for the attempted murder of Rivera. Additional punishment on the other counts and for the various enhancements either ran concurrently or was stayed.
DISCUSSION
Roach contends his constitutional rights were violated when the trial court (1) admitted Rivera's identification testimony that was tainted by an unduly suggestive photographic lineup, (2) unfairly restricted his cross-examination of Rivera, and (3) allowed the prosecutor to argue a theory of liability that was inconsistent with admissions already made by codefendant McKell when he pled guilty. He also claims the court made two sentencing errors.
1. Photographic Lineup
Roach challenges the six-pack photo lineup that included his picture, and Rivera's resulting identification of him as one of the assailants. Roach claims the photo lineup was unduly suggestive, and its use deprived him of due process. We conclude there was no due process violation because Rivera knew Roach and his identification was therefore reliable notwithstanding any flaw in the photo lineup. Moreover, even if the court should have excluded the identification testimony, any error was harmless.
Roach takes primary issue with the relative brightness of his picture compared to the others in the six-pack shown to Rivera and Yalile. He also argues that Yalile's early March identification of Guero influenced Rivera's, the e-mail procedure used was unorthodox, and the composition of the six-pack was problematic. These specific objections, taken in turn, do not lead us to conclude the photo identification was unduly suggestive. But even if the six-pack was suggestive, we nonetheless conclude that the identification was reliable.
This court has reviewed the photographs. The six-pack containing Roach's picture is the brightest in a group with varying degrees of contrast. We do not think the relative brightness of Roach's picture would suggest to a witness he should select it. Generally, "the validity of a photographic lineup [is not] considered unconstitutional simply where one suspect's photograph is much more distinguishable from the others in the lineup." (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) Courts have upheld photo identifications with various distinguishing factors like the brightness of the photo at issue here. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [concluding photo lineup was not suggestive where defendant's photo was darker than the others, he alone wore a red shirt, and witness described assailant as wearing a red jacket]; see also People v. Johnson (1992) 3 Cal.4th 1183, 1214 [upholding photo lineup where defendant was the only one in jail clothing, though the nature of the outfit was not obvious].)
The theory that Yalile's identification of Roach influenced Rivera's is dubious at best—but moreover, it has nothing to do with the suggestiveness of the six-pack. First, their respective identifications served different purposes. Yalile identified a picture of the man she knew as Guero. Rivera identified a picture of the man he knew as Guero and also identified him as one of the three men who attacked Arturo, Mario and himself. Second, the only conceivable way Yalile's March identification of Roach could have improperly influenced Rivera is if he decided to falsely accuse Guero after speaking with Yalile and realizing he was already a suspect. This theory certainly implicates Rivera's credibility, but not the composition of the six-pack or the procedures used to elicit the identification. And we are not reviewing Rivera's credibility. "It is the exclusive province of the trial judge or jury to determine the credibility of a witness . . . ." (People v. Jones (1990) 51 Cal.3d 294, 314).
Without citing case authority in support of his theories, Roach goes on to argue the specific combination of putting two suspects from more than one racial group in one six-pack was improper, and the unorthodox e-mail procedure was problematic. We need not discuss these specifics at length, but we note that all the men in the six-pack have significant similarities—similar skin tone, similar hair color, and neck tattoos. As to the e-mail procedure, the integrity of the process seemed intact; Detective Perez testified she admonished Rivera before he made any identification. Furthermore, we would not conclude a procedure is suggestive or flawed merely because it is novel.
We review the decision to admit a pretrial identification de novo. (People v. Kennedy (2005) 36 Cal.4th 595, 609.) Due process requires the exclusion of a pretrial identification only if a suggestive procedure led to an unreliable identification. (People v. Avila (2009) 46 Cal.4th 680, 698; Simmons v. United States (1968) 390 U.S. 377, 384.) It is "the likelihood of misidentification which violates a defendant's right to due process," rather than suggestive police practices in isolation. (Neil v. Biggers (1972) 409 U.S. 188, 198 (Neil).) Courts consider five factors in evaluating reliability: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." (United States v. Smith (10th Cir. 1998) 156 F.3d 1046, 1051.)
It is worth noting these factors are usually applied to evaluate the reliability of a stranger identification. Here, we have a witness identifying an associate he had seen half a dozen times in person. This difference alone greatly increases the reliability of the identification and may make analysis of the five factors unnecessary. Nonetheless, we will consider each in turn.
Rivera had significant opportunity to observe Roach and the two men Roach brought with him on February 8. Rivera and Roach shook hands, and Roach introduced McKell and Pocho to Rivera. Rivera's group offered food to Roach's group, and they started to eat together before the meeting turned into a violent robbery. Rivera remembers details (such as McKell drinking a soda). Even after Roach's group restrained Rivera's group and duct taped their faces, Rivera kept observing them through a slit in the tape. Apart from watching them, Rivera was listening. He heard the gunshots that killed Arturo and Mario. He recognized Roach's voice apologizing to him in Spanish. He listened to them leave the garage. Through multiple senses, Rivera observed Roach and his associates committing the entire crime—from the initial handshake to the murders to the getaway with the stolen goods. Few witnesses to a crime have the intimate and sustained opportunity to observe that Rivera did.
The remaining factors also support a conclusion that his identification was reliable. Presumably he was paying close attention to Roach, especially after Roach pulled out a gun. While Rivera did not give a physical description of Roach to Detective Perez, he did hint to her during their first phone call on March 16 that she should investigate Guero (when he told her only Guero knew they would be at the garage). He also described the attackers as two gueros and a pocho. By their third phone call, Rivera told Perez directly the man he knew as Guero was involved. Rivera took his time before he divulged what he knew to police—but he never gave them an inconsistent or contradictory description. Given the circumstances, the delay does not make his identification less reliable.
Roach makes much of the fact that Rivera did not give more of a physical description of his attackers to Perez. But delay does not have the same effect on reliability in this case that it might in a stranger identification context, where a lapse in time or intervening suggestions about characteristics could color a witness's memory of a person.
This was a gang-related crime. Rivera's delay in identifying gang members as his attackers is understandable. He explained that his fear for his family's safety was the reason he did not name Guero immediately, and also the reason he initially lied to Yalile about Guero's involvement.
As to the remaining factors, Rivera identified Roach with certainty: twice in photos and again at trial. The length of time between the crime and Rivera's first identification of Roach was just under three months. Since Rivera knew Roach and was not relying on a singular or fleeting observation of a stranger, this relative delay also does not make his identification significantly less reliable.
The crime occurred on February 8. Rivera first identified Roach as his assailant in the e-mailed six-pack on April 24.
Stranger identifications after longer delays have been deemed reliable, especially when the witness had significant opportunity to observe. (See Neil, supra, 409 U.S. at p. 201 [upholding show up stranger identification as reliable where victim identified defendant seven months after the crime occurred].)
The ultimate factor in evaluating reliability is the risk of misidentification, which is highly unlikely here. Rivera knew Roach—albeit as Guero. They met in person several times, had prior phone contact, and shook hands at the garage before the scene turned ugly. Taken as a whole, there is no reason to doubt the reliability of Rivera's pretrial identification.
Assuming the trial court did err, it was nevertheless harmless even if we apply the more stringent Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Rivera identified Roach in court, and the jury believed him. DNA evidence and other testimony tied Roach to the crime. There is no reasonable doubt the suppression of Rivera's out-of-court photo identification would have changed the result.
2. Cross-Examination
Roach asserts that the court's curtailment of the scope of his cross-examination of Rivera violated due process and his right to confrontation. He is mistaken.
Over the defense's "very strenuous" objection, the trial court limited cross-examination about Rivera's personal impressions of the brightness, racial composition, and overall similarities of the pictures in the six-pack photo lineup from which he identified Roach. The court had already ruled the lineup was not suggestive and found questions directed at Rivera relevant only to the integrity of the lineup improper.
The confrontation clause does not protect any line of cross-examination the defense may want to pursue. It guarantees effective, not boundless, questioning. (People v. Harris (1989) 47 Cal.3d 1047, 1091.) The trial court has discretion to limit examination in accordance with the evidentiary rules, and can even limit impeachment on "collateral matters [that are] only slightly probative of . . . veracity." (People v. Jennings (1991) 53 Cal.3d 334, 372 (Jennings).) A Sixth Amendment violation occurs only when a line of prohibited questioning would have significantly changed the jury's impression of the credibility of a witness. (People v. Hillhouse (2002) 27 Cal.4th 469, 494.) As to the right to present a defense, there is no violation when a trial court's use of the rules of evidence prohibits a "minor or subsidiary point" for the defense. (People v. Boyette (2002) 29 Cal.4th 381, 428.)
Here, the court's restriction on defense counsel did not violate the Sixth Amendment or due process. It merely prevented the defense from probing Rivera's thoughts about the similarities between the photos in the six-pack. This line of questioning would not have produced a significantly different impression of his credibility even if had been pursued; on cross-examination, the defense thoroughly probed Rivera's trustworthiness and established his propensity to lie. Despite all of this, the jury believed his identification of Roach was credible.
The trial court's limitation did not restrict questions related to Rivera's actual identification of Roach or his credibility as a witness. He was crossed about his conversations with Yalile in the intervening period between her identification and his own. He was questioned about his phone calls and interviews with Detective Perez, and his delay in naming Guero as one of his assailants. Significant portions of his cross-examination, which spans over one hundred pages of the record, were devoted to impeaching him. Roach also presented expert testimony on the unreliability of eyewitness identifications.
Amongst other deceptions and inconsistencies, Rivera assumed his cousin's identity to avoid arrest, lied to Yalile for months about his name and his business, and contradicted his own prior statements.
Aside from undermining Rivera's integrity, Roach was given robust opportunities to construct his defense. Perhaps the most compelling piece of physical evidence against him was the recovery of cigarette butts at the garage with his DNA. Roach was able to cross-examine the criminalist who concluded the cigarette butts looked fresh, present an experiment on the deterioration of butts that undermined the criminalist's conclusions, and give an alternate explanation for the presence of his DNA at the crime scene.
There was no constitutional violation. Consequently, the standard set out in People v. Watson (1956) 46 Cal.2d 818 applies. Even if the court was in error, it was harmless. (See Jennings, supra, 53 Cal.3d at p. 372 [finding any error in limits on cross-examination harmless because "the jury had before it ample evidence impeaching the trustworthiness of these witnesses"].)
3. The Prosecution's Theory of Liability
Relying on In re Sakarias (2005) 35 Cal.4th 140 (Sakarias), Roach revives his position that the prosecution deprived him of due process by using two mutually exclusive theories of liability—namely, that he could have been either the actual shooter or an aider and abettor when McKell had already pled to the personal use of a firearm on all three victims. In doing so, he asks us to conclude that once the People have obtained a conviction as to one defendant, they are precluded by due process from arguing a factually inconsistent theory of liability as to a codefendant.
Although we take judicial notice (see fn. 8, ante) of McKell's changed plea per the People's request, it is not clear to us how it supports the People's position on this issue.
People v. Price (2017) 8 Cal.App.5th 409 (Price) suggests a due process claim under Sakarias requires more than an inconsistent theory. But we need not elaborate on this point, or on the differences between Sakarias and this case, because even if Roach could make a viable due process claim any error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
Price enumerates three elements for a Sakarias claim: "[T]hree elements must be present before an inconsistency in a prosecutor's contentions against persons who jointly commit criminal acts will rise to the level of a due process violation: (1) the prosecution used inconsistent and irreconcilable theories either to convict or obtain a harsher sentence; (2) the inconsistency is not justified by a good faith reason; and (3) the inconsistency achieved a false conviction or increased punishment based on false factual assertions for one of those accused." (Price, supra, 8 Cal.App.5th at p. 436.)
To find prejudice, we would need to conclude there is a reasonable possibility that if the prosecution had been confined to arguing Roach aided and abetted McKell in the murders and attempted murder, the verdicts would have been different. Enumerating the chain of events that would lead to this result helps to illustrate why it is unreasonable.
More precisely, the prosecution would have been confined to the aiding and abetting theory only as to the murder of Arturo and the attempted murder of Rivera. Mario was shot more than once. The factual confines suggested by McKell's plea are not inconsistent with the theory that both McKell and Roach personally shot Mario.
First, the prosecution would be confined to arguing McKell was the sole shooter, and Roach aided and abetted him. Second, the jury would seize on the inconsistency between this theory and Rivera's testimony that Roach was the one who shot him and slit his throat. Third, this particular contradiction would give rise to the inference that Rivera was either lying or mistaken about which of the men injured him. Fourth, the jury would extend this deceit or mistake to the entirety of Rivera's testimony to conclude he was either lying or mistaken about Roach in general. This final step would allegedly create a reasonable doubt that Roach participated in the crime at all.
This chain of events is highly speculative—in no small part because the jury was already aware of the inconsistency and had a long list of reasons to doubt Rivera's credibility. They knew McKell took credit for slitting Rivera's throat and suggested he used both guns. The Prosecutor even called attention to McKell's statement in her closing, arguing he corroborated the broad strokes of Rivera's account. Rivera's credibility itself was tested from multiple angles, on cross-examination and through the defense expert who highlighted problems with eyewitness identifications. This jury knew there was contradictory evidence about who fired which shot. They knew there were reasons not to believe Rivera. But they also found, beyond a reasonable doubt, that Roach committed these crimes. The suggestion that confining the prosecution to a theory of aiding and abetting would have changed their overall assessment of Rivera's credibility, and thus the verdict, is so doubtful that it can be dismissed even applying the rigorous Chapman standard.
4. Sentencing Issues
Roach first argues the court may have erred by ordering a parole revocation fine because he will serve a life sentence without the possibility of parole. To the contrary, however, case law establishes that the court properly imposed the mandatory fine.
Roach was convicted of seven separate counts. For counts 1 and 2 he received two sentences of life without the possibility of parole. On count 3 he was given an indeterminate 15 years to life with a stayed 10-year gang enhancement (§§ 664, subd. (a), 186.22 subd. (b)(1)(C)). For counts 4, 5, and 6, he was given concurrent terms of 15 years, and another term of three years for count 7. In addition to other fines and fees, the court ordered a $10,000 suspended parole revocation restitution fine.
Because Roach's sentencing included determinant terms, his reliance on People v. Oganesyan (1999) 70 Cal.App.4th 1178 is unavailing. (See Brasure, supra, 42 Cal.4th at p. 1075 [finding Oganesyan distinguishable because the defendant's sentence did not include any determinant terms].)
People v. Brasure (2008) 42 Cal.4th 1037 (Brasure) deals definitively with the issue raised. When a defendant's sentencing includes at least one determinant sentence, parole is assumed. For any determinant sentence, a parole restitution revocation fine is not only proper, it is mandatory. This is true even if the defendant's other convictions functionally foreclose the possibility of parole. (Id. at p. 1075.)
Section 3000, subdivision (a)(1) provides that defendants sentenced under section 1170, the Determinate Sentencing Law, shall be paroled.
Section 1202.45 mandates a parole revocation restitution fine for any sentence that includes a parole period.
Roach relies on People v. McWhorter (2009) 47 Cal.4th 318 (McWhorter), which appears to conflict directly with Brasure. In McWhorter, the defendant was convicted of robbery and two murders (id. at p. 324), and he challenged his parole revocation restitution fine on the same grounds as Roach. (Id. at p. 380.) In addition to a death sentence, it appears he was given a determinant term for the robbery. (Id. at p. 324; §§ 212.5, subd. (a), 213(a)(1)(A).) The Attorney General conceded McWhorter's fine was improperly imposed, and the court accepted the concession without any mention of Brasure or its analysis. (McWhorter, at p. 380.) Brasure, in contrast, deals thoroughly with the issue and presents a reasoned explanation for why a parole revocation restitution fine is properly imposed on a defendant who is sentenced to at least one determinate term of imprisonment. (Brasure, supra, 42 Cal.4th at p. 1075.) That both opinions come from our high court makes them equally authoritative; insofar as they are in conflict, we follow Brasure given its clear and reasoned approach. (Cf. McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 358.)
Roach also contends the trial court erred in imposing both a minimum 15-year sentence and a 10-year gang enhancement on count 3 (attempted murder). Section 186.22, subdivision (b)(1)(C) authorizes the 10-year minimum, but the People concede that no further enhancement can be imposed. (See People v. Lopez (2005) 34 Cal.4th 1002, 1006-1007; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405.) Accordingly, the enhancement must be vacated.
DISPOSITION
The 10-year gang enhancement on count 3 imposed under section 186.22, subdivision (b)(1)(C) is vacated consistent with this opinion. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. IRION, J.