Filed 1/13/20 P. v. Canales CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS CANALES,

Defendant and Appellant.

G056343

(Super. Ct. No. 11CF1985)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified and remanded for resentencing.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

Jesus Canales appeals from a judgment after a jury convicted him of first degree murder and found true he committed murder for a criminal street gang purpose and he personally discharged a firearm. Canales argues the following: his first degree murder conviction was supported by accomplice testimony that was not sufficiently corroborated; the trial court erred by instructing the jury with consciousness of guilt instructions; the matter must be remanded because the court mistakenly believed it did not have the discretion to strike the firearm enhancement; and the court erred by imposing a parole revocation restitution fine.

We disagree with Canales’ first two claims and, like the Attorney General, agree with the latter two. We strike the $200 parole revocation restitution fine and remand the matter to allow the trial court to exercise its discretion to strike the firearm enhancement. In all other respects, we affirm the judgment.

FACTS

An amended information charged Canales with murder (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code), and alleged he personally discharged a firearm causing death (§ 12022.53, subd. (d)), and committed murder for a criminal street gang purpose (§ 190.2, subd. (a)(22)).

Prosecution Evidence

J.G. testified that on the night of July 22, 2011, he and Canales smoked methamphetamine and decided to “hit up people.” They acquired two bicycles and rode from “Lopers” criminal street gang claimed territory to “Logan Street” (Logan) criminal street gang claimed territory. They soon encountered a group of men. Canales stopped, pulled out a semiautomatic handgun, and asked the men what gang they were from. They said they were not from a gang. Canales said, “Lopers,” and he and J.G. rode away.

As they were riding down the middle of the street, Canales veered off, set his bicycle on the curb, and stood on the sidewalk; J.G. remained in the street. There was a large group of people standing in front of a house. Canales asked them where they were from. J.G. heard one of the men say something. After Canales said, “Lopers,” he took out his gun and fired twice, hitting A.M. twice, one of which was a fatal chest wound. As Canales and J.G. rode away, J.G. heard someone say, “fucking, Juanito.” Juanito was his nickname, and he knew the family who lived at the residence.

Canales and J.G. road back to Logan claimed territory, and Canales gave the gun to two gang members. Canales and J.G. hid in a parking lot until another gang member picked them up and took them to his house, where they spent the night. The next morning, Canales and J.G. went their separate ways.

During the investigation, two eyewitnesses told police that J.G. was the non-shooter. Neither eyewitness could identify the shooter. One of the witnesses stated A.M. associated with Logan.

Two days after the shooting, police arrested J.G. at his home and interviewed him at the police station. During the interview, J.G. was initially reluctant to identify the shooter because he feared retaliation. J.G. eventually stated Canales was the shooter, was a Lopers gang member, and went by the moniker “Stitch.” He also identified Canales in a photograph.

Later that day, officers went to Canales’ mother’s (Mother) house to inquire about his whereabouts, but he was not there. Mother said she had not seen him since the previous day, July 23, 2011, at about 5:00 p.m., when he came home, took a shower, gathered some belongings, and left. For about nine months officers looked for him until they received information he may be in Mexico.

Over four and one-half years later, Canales was extradited from Mexico to Santa Ana. During the extradition, Canales told an FBI agent that in 2009 he was deported to Mexico but he reentered the United States shortly thereafter. He immediately stated he did not reenter the United States and he did not commit the murder. Once back in Santa Ana, detectives interviewed Canales. Canales denied being involved in or witnessing the shooting, and denied knowing or meeting J.G. He also denied being a Lopers gang member or associate, despite the fact he had a Lopers tattoo.

Canales’ probation officer testified Canales was deported to Mexico in October 2009 but reentered the United States in February or March 2011. He met with Canales on March 16, 2011, for a regular probation check-in. Thereafter he met with Canales every two weeks until July 20, 2011. Canales failed to report to his August 3, 2011, probation check-in. He did not hear from or see Canales until trial.

The prosecution offered numerous law enforcement officers to testify about criminal street gangs. Several law enforcement officers testified that from 2007 through 2011, Canales had numerous police contacts where he admitted being a Lopers gang member and went by the moniker “Stitch.” In October 2007, Canales told an officer he would continue to earn respect in Lopers by committing vandalism, thefts, and assaults. In March 2008, officers searched Canales’ home and found Lopers gang indicia.

A detective, who was a gang expert, testified concerning the culture and habits of turf-oriented Hispanic criminal street gangs. He explained gang members earn respect in a gang by committing violent crimes, and the gang member will boast about criminal exploits to fellow gang members. A gang member would earn ultimate respect by murdering a rival gang member in the rival gang’s territory. The detective opined that at the time of the shooting Lopers was a criminal street gang and its primary activities were armed robberies and illegal firearm possession, Canales was a Lopers gang member, and J.G. was a Lopers associate. He stated Lopers’ primary rival was Logan, the shooting occurred in Logan claimed territory, and the victim was a Logan member. The detective opined the shooting was done for the benefit of Lopers. Canales rested on the state of the evidence.

Jury Instructions, Jury Verdicts & Sentencing

The trial court instructed the jury J.G. was an accomplice as a matter of law and his testimony required independent corroboration (CALCRIM No. 335). The court also instructed the jury with two consciousness of guilt instructions, which we discuss below.

The jury convicted Canales of first degree murder and found true the enhancements. In May 2018, the trial court sentenced Canales to life without the possibility of parole (LWOP) for murder and a “mandatory” consecutive term of 25 years to life for the weapon enhancement (§ 12022.53, subd. (d)). As relevant here, the court imposed a $200 parole revocation restitution fine, which it stated “is not really applicable in this case” because the sentence is an LWOP (§ 1202.45).

DISCUSSION

I. Accomplice Testimony

Canales argues his conviction for count 1 was supported by accomplice testimony that was not sufficiently corroborated. We disagree.

Section 1111, states, “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

“[F]or the jury to rely on an accomplice’s testimony about the circumstances of an offense, it must find evidence that ‘“without aid from the accomplice’s testimony, tend[s] to connect the defendant with the crime.”’ [Citations.] ‘The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.’ [Citations.] The evidence ‘need not independently establish the identity of the victim’s assailant’ [citation], nor corroborate every fact to which the accomplice testifies [citation], and ‘“may be circumstantial or slight and entitled to little consideration when standing alone”’ [citation]. ‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.’ [Citation.]” (People v. Romero and Self (2015) 62 Cal.4th 1, 32-33.) Evidence of defendant’s flight and fabrication of an alibi supports an inference of consciousness of guilt, which is sufficient independent corroborating evidence. (People v. Williams (2013) 56 Cal.4th 630, 679 (Williams).)

Here, Mother’s testimony established that less than 24 hours after the shooting, Canales went home, took a shower, gathered some belongings, and left. She did not see him until almost seven years later at trial. “[E]vidence of defendant’s flight after the crimes were committed supports an inference of consciousness of guilt and constitutes an implied admission, which may properly be considered as corroborative of the accomplice testimony. [Citation.]” (Williams, supra, 56 Cal.4th at p. 679.)

Additionally, when the FBI agent was extraditing Canales back to the United States, Canales initially stated he was deported in 2009 and quickly reentered but immediately recanted and said he did not reenter the United States and he was not responsible for a 2011 murder. Mother’s and the probation officer’s testimony established he was in Orange County in July 2011. Contrary to Canales’s claim his inconsistent statements to the FBI agent did not connect him to the murder, his inconsistent statements showed a consciousness of guilt. Evidence of defendant’s attempt to fabricate an alibi also supports an inference of consciousness of guilt and may properly be considered as corroborative of the accomplice testimony. (Williams, supra, 56 Cal.4th at p. 679.) This independent evidence did not require interpretation from J.G.’s testimony. Instead, this independent evidence tended to connect Canales with the shooting and was sufficient to reasonably satisfy the jury that J.G. was telling the truth. Canales’s conviction on count 1 was proper.

II. Consciousness of Guilt Instructions

Canales contends the trial court erred by instructing the jury with CALCRIM Nos. 362 and 372 because they were not supported by substantial evidence and they violated his federal constitutional rights. None of his contentions have merit.

A consciousness of guilt instruction is proper only if “there is ‘evidence in the record which, if believed by the jury, will sufficiently support the suggested inference’” of consciousness of guilt. (People v. Ramirez (2006) 39 Cal.4th 398, 456.) “[A] flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.]” (People v. Bradford (1997)14 Cal.4th 1005, 1055.) “Deliberately false statements to the police about matters that are within an arrestee’s knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.)

Here, the trial court instructed the jury with CALCRIM No. 372, “Defendant’s Flight,” as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

The court also instructed the jury with CALCRIM No. 362, “Consciousness of Guilt: False Statements,” as follows: “If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”

There was sufficient evidence supporting both instructions. As to Canales’ flight, the evidence demonstrated he fled the scene and first hid in a parking lot and then his friend’s home for the evening. The jury could infer from this that by not returning home Canales was trying to avoid being detected. (People v. Abilez (2007) 41 Cal.4th 472, 522.) The next evening, he went home to gather his belongings and again fled to Mexico where he was not detected until nine months later. The jury could also infer from this evidence he was trying to avoid arrest. (People v. Carter (2005) 36 Cal.4th 1114, 1182 [flight instruction proper when evidence showed defendant left California after crimes].)

Canales’ reliance on People v. Watson (1977) 75 Cal.App.3d 384, 391, 403, where the evidence merely showed defendant was arrested two days after the crime and miles away from the crime without incident, is misplaced. In that case, there was no evidence what defendant did immediately after the crime, and the only evidence concerned time and distance. Here, there was evidence Canales fled, twice. Sufficient evidence supported the trial court instructing the jury with CALCRIM No. 372.

As to Canales’ false statements, the evidence demonstrated that when Canales was being extradited he falsely told the FBI agent he had not been in the United States since he was deported in 2009. Again, Mother and his probation officer both placed him in Orange County in July 2011. And his false statement related to the crime. Sufficient evidence supported the trial court instructing the jury with CALCRIM No. 362.

Canales also contends CALCRIM Nos. 372 and 362 were duplicative, argumentative, and allowed the jury to draw irrational permissive inferences in violation of his federal constitutional rights. The California Supreme Court has rejected identical claims regarding CALCRIM Nos. 372’s and 362’s predecessors CALJIC Nos. 2.52, flight, and 2.03, false statements. (People v. Cage (2015) 62 Cal.4th 256, 285-286 [CALJIC No. 2.52]; People v. Jones (2013) 57 Cal.4th 899, 971 [CALJIC No. 2.03].) We are bound to follow California Supreme Court decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and decline Canales’s invitation to rely on out-of-state authority (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077 [out-of-state authority persuasive not controlling]). Thus, the trial court properly instructed the jury with CALCRIM Nos. 362 and 372.

III. Senate Bill No. 620

Canales asserts the trial court erred when it mistakenly believed it did not have the discretion to strike the section 12022.5, subdivision (d), firearm enhancement. The Attorney General agrees.

Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and 12022.53. (Stats. 2017, ch. 682, §§ 1, 2.) Pursuant to those amendments, trial courts may, “in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss [a firearm] enhancement otherwise required to be imposed . . . .”

(§§ 12022.5, subd. (c), 12022.53, subd. (h).) Here, when the trial court sentenced Canales in May 2018, it was under the mistaken belief it was required to impose a “mandatory” consecutive term of 25 years to life on the section 12022.53, subdivision (d), enhancement. It had the authority to strike that enhancement beginning a few months earlier. We remand the matter to allow the trial court to exercise its discretion as to the firearm enhancement it imposed under section 12022.53, subdivision (d).

IV. Parole Revocation Restitution Fine

Canales argues the trial court erred by imposing the parole revocation restitution fine. The Attorney General again agrees. Section 1202.45, subdivision (a), requires a trial court to impose a parole revocation restitution fine equal to the amount of the felony restitution fine (§ 1202.4) when the court imposes a sentence that includes a period of parole. “When there is no parole eligibility, the fine is clearly not applicable.” Here, the court imposed a LWOP sentence, and thus Canales is not eligible for parole. The $200 parole revocation restitution fine must be stricken.

DISPOSITION

The judgment is modified to strike the $200 parole revocation restitution fine (§ 1202.45). The matter is remanded for the limited purpose of allowing the trial court to exercise its discretion under Senate Bill No. 620 to strike the section 12022.53, subdivision (d), firearm enhancement. Upon conclusion of further proceedings, the clerk of the superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations. As modified, the judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

THOMPSON, J.