Opinion
B229319
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. MARCOS SOLORIO, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA087830)
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Marcus Solorio was convicted of first degree murder in a gang-related shooting. Appellant, who was a minor at the time he committed the offense, contends that substantial evidence does not support the verdict because the sole witness to tie him to the crime lacked all credibility and that the sentence imposed -- 50 years to life for the crime and a weapon enhancement -- was unconstitutional due to his age and its disproportionality to the crime. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a one-count information with murder (Pen. Code, § 187, subd. (a)). It was also alleged that appellant personally and intentionally discharged a firearm which caused great bodily injury and death within the meaning of section 12022.53, subdivision (d), personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and personally used a firearm within the meaning of section 12022.53, subdivision (b), and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). The information further alleged that appellant was a minor of at least 14 years of age at the time of the commission of the offense.
Undesignated statutory references are to the Penal Code.
This was appellant's second trial for the offense. The previous trial ended in a mistrial when the jury was unable to reach a verdict.
Heriberto Nunez was the chief prosecution witness. He testified that on January 18, 2004, he was on his way home from a liquor store, walking past an alley near Angela and Chanslor Streets in Pomona. It was evening, but not yet dark. He saw appellant, whom he had known for some time by the nickname "Bandit," creeping up on a man who was urinating on a dumpster. There was another person walking beside appellant. Appellant appeared to be holding something in his hands. When appellant got close to the man, appellant straightened up and raised his arms. His right arm was bent and up against his right side; his left arm was extended further out. Nunez heard a "bang." Appellant and his companion ran away. Nunez, who was also running away, observed that appellant was still holding something in his hands.
The defense did not call any witnesses.
Other evidence established that the shooting occurred at approximately 7:00 p.m.
The victim was 19-year old Alexander Delgado. Nunez knew Delgado, but did not look to see who the victim was and did not learn his identity until later.
A day or two after the incident, appellant ran into Nunez on the street. Appellant told Nunez that Delgado had "disrespected the neighborhood" by saying "fuck the Dolphins" when watching a Miami Dolphins football game on television. Nunez knew appellant to be an Olive Street gang member from statements appellant had previously made and that Olive Street's mascot is the dolphin.While speaking to Nunez, appellant demonstrated what he had done in the alley, pantomiming creeping up on and shooting the victim. Appellant said he used a "gauge" and that after firing it, he saw the body twitch and "stuff" come out of his head. Appellant was grinning and laughing at the time.
The parties stipulated that Olive Street was a criminal street gang within the meaning of section 186.22. Twelfth Street, whose mascot is the shark, is a rival gang. Olive Street's use of the dolphin as a mascot is derived from its reputed ability to kill sharks.
"Gauge" is slang for shotgun.
Nunez did not tell anyone about having seen the shooting or his conversation with appellant until March 2004, nearly two months later, when he was arrested for grand theft auto. Nunez hoped to get leniency for informing on appellant, but received nothing and was convicted of unlawfully taking a vehicle later that year.Nunez was interviewed about the incident again in 2009, before the preliminary hearing.
Nunez had previously been convicted of grand theft auto (in 1997 and 2002) and possession of marijuana for sale (in 1999).
Appellant's trial and re-trial took place in 2010.
Officers who investigated the shooting observed Olive Street graffiti on the dumpster in the alley, including the phrase "killer dolphins." There was also graffiti which stated, "fuck the guppies." There was a .25 caliber casing found at the scene. When officers searched appellant's room, they found a small dolphin ornament.
There was some confusion in the record about the meaning of the terms "guppies." One officer testified that "guppies" referred to Olive Street members due to their use of the dolphin as a mascot. The gang expert testified that it is a derogatory term for Twelfth Street gang members, and referred to their mascot, the shark.
The autopsy revealed Delgado died from a shotgun blast to the back of his head. The entry wound was located near his right ear. The physical evidence indicated that his assailant had been close to him at the time of the shooting, within five or six feet. The parties stipulated that a deputy had observed appellant filling out paperwork with his right hand.
The prosecution played a brief excerpt from a recorded conversation between appellant and another gang member. In it, appellant talks about having planned to use a "big ass gauge before" to "blast the shit out of this car one time" in front of two females -- "her and Rosie" -- and then said: "And I had a gauge. And I pulled that shit out, so old. That one, . . . that one with that fool in the alley, that same one."
Detective Greg Freeman, the gang expert, testified that the shooting occurred within Olive Street's claimed territory. Detective Freemen was familiar with appellant and knew him to be an Olive Street gang member using the moniker "Bandit." Field identification cards dating back to 2003 contained information about appellant's moniker and gang affiliation. Appellant had tattoos signifying Olive Street membership. The dolphin ornament found in his room was also indicative of Olive Street membership. Detective Freeman was aware of no information linking Delgado, the victim, to any gang. Detective Freeman expressed the opinion that if a person said 'fuck the dolphins" in the presence of an Olive Street member, some type of retaliation would likely occur in order to uphold respect for the gang. He further explained that gang members commonly brag about what they have done after the fact and that younger members are required to "put in work" to prove themselves worthy of membership and move up in the ranks. Detective Freeman opined that the shooting benefited Olive Street because it made "a statement" about what happens when the gang was "disrespect[ed]." It also allowed the shooter to attain higher status within the gang.
Appellant was 15 at the time of the shooting.
C. Verdict and Sentencing
The jury found appellant guilty of first degree murder and all the special allegations were found true. The court sentenced appellant to a term of 50 years to life, consisting of 25 years to life for the murder and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement.
Appellant had already been sentenced to a term of 86 years to life for another set of offenses. His sentence in the underlying matter is to be served consecutively to that sentence.
DISCUSSION
A. Substantial Evidence
1. Background
When Nunez was interviewed in 2004, the detective reported that Nunez stated he had seen only appellant, not appellant and another person, creeping up on Delgado in the alley prior to the shooting. The detective also reported that the post-shooting conversation between appellant and Nunez occurred inside Nunez's apartment, not outside in a street or alley. When Nunez was interviewed in 2009, the detective reported that Nunez had said he was driving home from work, preparing to park -- not walking home from a liquor store -- when he observed the incident. In addition, the 2009 interview report stated that when Nunez saw appellant approaching the victim in the alley, appellant was walking behind two other men. Moreover, Nunez admitted at trial that at the time of the incident, he was a regular user of methamphetamine and alcohol, but denied any use prior to witnessing the shooting. At the April 2010 preliminary hearing, however, Nunez said he "might have" been drinking or using drugs at the time.
Nunez also stated at trial, on cross-examination, that he might have said in the 2009 interview that the shooting occurred late at night and might have testified in a prior hearing that it occurred while it was still daylight. However, there is no evidence that he actually made previous statements to investigators or testified to that effect.
Based on these discrepancies, the fact that Nunez was a four-time felon, and the fact that Nunez did not report the shooting until approximately two months after the fact when he was under arrest for an unrelated offense and hoping for leniency, appellant contends that Nunez was not a credible witness and that his testimony was so improbable and unbelievable that no rational trier of fact could have concluded appellant shot the victim.
2. Analysis
"The standard of appellate review for determining the sufficiency of the evidence is settled. On appeal, '"we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]'" (People v. Lee (2011) 51 Cal.4th 620, 632, quoting People v. Avila (2009) 46 Cal.4th 680, 701.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Lee, supra, at p. 632, quoting People v. Maury (2003) 30 Cal.4th 342, 403.) Essentially, we determine whether "'"any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.]'" (People v. Farnam (2002) 28 Cal.4th 107, 142, quoting People v. Earp (1999) 20 Cal.4th 826, 887, italics omitted.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) "Any contradictions . . . or other weakness in the witness's testimony are matters to be explored on cross-examination and argued to the trier of fact." (People v. Robertson (1989) 48 Cal.3d 18, 44.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Nunez's eyewitness testimony was sufficient to sustain the verdict. He never changed his essential story that as he was passing the alley where Delgado's body was later found, he saw appellant, with whom he was well acquainted, creeping up behind Delgado holding something in his hands, that after seeing appellant straighten up and move his arms he heard a loud bang, and that appellant then turned and ran. Nunez's description of what he saw from his reported location outside the alley was neither physically impossible nor inherently improbable. He denied being under the influence of alcohol and drugs and even if he had earlier ingested an intoxicating substance of some type there is no evidence it deprived him of the ability to see and relate the events he described.
Appellant identifies discrepancies between Nunez's testimony at the second trial and his previous testimony and interview statements. The contradictions identified by appellant are relatively minor and unremarkable, considering the length of time that passed between the shooting, the various interviews, the preliminary hearing, and appellant's trial. Appellant also stresses the fact that Nunez did not immediately inform authorities of appellant's part in the crime and spoke up only when he believed it might lead to personal advantage. This was ground for questioning his truthfulness, as was his background of multiple felony convictions. Defense counsel thoroughly cross-examined him on these points and argued their significance to the jury. After observing Nunez's demeanor on direct and cross and considering counsel's arguments, the jury chose to credit his testimony.
Moreover, although a conviction may be upheld if based on the "uncorroborated testimony of a single witness," Nunez's testimony was not uncorroborated. The autopsy confirmed Nunez's story. It revealed that Delgado had been shot in the back of the head with a shotgun from a fairly close range. This is precisely what Nunez stated he had observed. Nunez's description of the placement of appellant's arms just prior to the shot, indicated appellant was using his right hand to pull the trigger. The autopsy confirmed that the location of the wound was on the right side of the back of Delgado's head. The observation of the deputy who saw appellant filling out forms established that appellant was right handed. More importantly, the testimony was corroborated by appellant's recorded conversation, in which he reported having used "a gauge" with "that fool in the alley." On this evidence, the jury's verdict was adequately supported.
B. Length of Sentence
Appellant contends the sentence imposed -- 50 years to life -- represented cruel and unusual punishment under the state and federal constitutions due to his status as a minor when the crime was committed.
Respondent contends this argument was forfeited by the failure to raise it below. In People v. Demirdjian (2006) 144 Cal.App.4th 10, 14, this court held that failure to object to a sentence on cruel and unusual punishment grounds leads to forfeiture, but does not preclude an appellate court from reaching the issue.
Appellant cannot reasonably contend that sentencing a juvenile over the age of 14 to a term of 50 years to life for first degree murder is categorically prohibited. Numerous courts have held that sentencing a juvenile to an equivalent term for first degree murder does not represent cruel and unusual punishment. (People v. Demirdjian, supra, 144 Cal.App.4th at pp. 15-16 [15-year old convicted of multiple special circumstance murders sentenced to two consecutive terms of 25 years to life]; People v. Em (2009) 171 Cal.App.4th 964, [15-year old convicted of first degree with firearm enhancement sentenced to two terms of 25 years to life]; People v. Guinn (1994) 28 Cal.App.4th 1130, 1145-1147 [17-year old convicted of felony murder sentenced to life without parole].)
Appellant's attempt to rely on the United States Supreme Court's decision in Graham v. Florida (2010) 560 U.S. __ (Graham) is unavailing. There, the court held that the prohibition on cruel and unusual punishment categorically prohibits "imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, at p. ___ , italics added.) As appellant was convicted of first degree murder, Graham has no bearing on his sentence.
This court has also held that a term of years sentence, as appellant received here, is not the equivalent of the life without parole sentence proscribed by Graham. (People v. Ramirez (2011) 193 Cal.App.4th 613, review granted June 22, 2011, S192558; People v. Caballero (2011) 191 Cal.App.4th 1248, review granted April 13, 2011, S190647.) This issue is currently before our Supreme Court.
Appellant further contends the sentence imposed is subject to a proportionality challenge due to his youth, background, and the fact this was his first offense. "Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity." (People v. Mantanez (2002) 98 Cal.App.4th 354, 358; see Ewing v. California (2003) 538 U.S. 11, 20-21.) In determining whether a sentence is disproportionate to the crime under state and federal constitutional standards, "the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (People v. Mendez (2010) 188 Cal.App.4th 47, 64 (Mendez).) Appellant attempts to rely on Mendez, where the court held that the defendant's age (16-years old at the time of the offense) "and the absence of injury or death to any victim" raised the inference that his "de facto LWOP" sentence of 84-years to life for carjacking, assault with a firearm, and robbery was "grossly disproportionate to his crimes committed and culpability." (Id. at p. 66.) Mendez is inapposite. Unlike the defendant in Mendez, appellant did personally inflict physical injury on his victim, fatally shooting him in the head with a shotgun at close range. As the trial court stated at the sentencing hearing, the crime for which appellant was convicted was "an absolutely inexcusable homicide where the victim did nothing other than speak to bring about his demise." Appellant "sneak[ed] up on [Delgado] in the most cowardly way and put a gun up next to him and [shot] him down because of comments he made about [appellant's] gang. . . . [¶] . . . [¶] . . . [Appellant] has confused fear with respect. He has confused being a bully with being a man." Appellant's sentence is not out of line with similar punishments for similar crimes in this state and others.
Appellant cites section 190.5, the provision which governs sentences for juveniles who commit special circumstances murder, and contends his sentence is disproportionate because it was more severe (including the enhancement), although his crime was less serious. Section 190.5 permits the trial court, at its discretion, to impose a 25-year-to-life sentence on a juvenile special circumstances murderer rather than life without parole -- the minimum sentence for an adult who commits that crime. (See § 190.2, subd. (a).) "Penal Code section 190.5 means . . . that 16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. . . . The fact that a court might grant leniency in some cases, in recognition that some youthful special circumstance murderers might warrant more lenient treatment, does not detract from the generally mandatory imposition of LWOP as the punishment for a youthful special circumstance murderer." (People v. Guinn, supra, 28 Cal.App.4th at pp. 1141-1142, italics omitted.) Similarly, the fact that a court might grant leniency to a juvenile special circumstances murderer under certain mitigating circumstances does not suggest that a sentence of 25 years to life is disproportionate for a murder which does not involve special circumstances but presents no grounds for mitigation.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.