Filed 3/18/13 P. v. Pineda CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B231037
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA088612)
ORDER MODIFYING OPINION
CARLOS PINEDA, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant. . THE COURT:
It is ordered that the opinion filed herein on February 15, 2013, be modified
1. On page 2, first paragraph, third line, delete "12022.53,".
2. On page 2, fourth paragraph, fourth and fifth lines, delete "his forehead" and substitute "the front of his head above the hairline".
3. On page 2, fifth paragraph, first line, delete "back".
4. On page 4, last paragraph, second line, delete "this tattoo is very large" and substitute "a photograph shows this tattoo is very large".
5. On page 6, second line, delete "his forehead" and substitute "the front of his
head above the hairline".
6. On page 7, second line, delete "called her cell phone at least three times, but she never spoke to him" and substitute "telephoned her at least three times."
7. On page 22, footnote 8, sixth line, delete "his forehead" and substitute "the
front of his head".
8. On page 22, first full paragraph, seventh line, delete "and he was ejected".
9. On page 27, first paragraph, fourth and fifth lines, delete "As Pineda
acknowledges, the missing definition" and substitute "The missing definition".
10. On page 32, delete the subheading and the following paragraph, and substitute:
"b. Upper term on count 3 firearm enhancement was properly imposed.
Pineda contends that, by imposing an upper term on the count 3 firearm use
enhancement, the trial court violated Cunningham v. California (2007) 549 U.S. 270
(127 S.Ct. 856). This claim is meritless."
11. On page 33, first full paragraph, first line, before "contention" insert the word
12. On page 33, after the first full paragraph, add the following new paragraph:
"Pineda contends the trial court abused its discretion because imposing an upper
term on the firearm enhancement in addition to an upper term on the substantive offense,
which was itself doubled under the Three Strikes law, amounted to a sentence that was
beyond the bounds of reason. But Pineda offers no relevant case authority or reasoned
argument showing why this conclusion is justified."
13. On page 36, delete the final sentence of the first full paragraph and insert the
following in its place: "The court also made an apparent reference to the fact that just a
few weeks before committing the shootings, Pineda had been granted probation after
pleading guilty to a felony arising out of the Dodger Stadium incident. The trial court did
not abuse its discretion by imposing a consecutive term on count 4."
There is no change in judgment.
Appellantâ€Ÿs petition for rehearing is denied.
[End Page 2]
Filed 2/15/13 P. v. Pineda CA2/3 (unmodified version)
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. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B231037
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA088612)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho, Judge. Affirmed as modified.
William L. Heyman, under appointment by the Court of Appeal, for Defendant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels, Michael
C. Keller and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Carlos Pineda, appeals his conviction for assault with a semiautomatic firearm (2 counts) with enhancements for firearm use, great bodily injury
and a prior serious felony conviction (Pen. Code, §§ 245, subd. (b), 12022.53, 12022.5,
12022.7, 667, subds. (a)-(i)).1 He was sentenced to state prison for a term of 44 years
The judgment is affirmed as modified.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The shootings at the bar.
On the night of October 17, 2009, defendant Pineda was at the Around the Corner
Bar and Grill in West Covina with a small group of people, which included Leo Velasco
and Angel Palencia. Pineda was wearing an Oakland Raiders football jersey. He had
prominent gang tattoos on his face, his neck and the back of his shaved head. On his
forehead he had a tattoo that said, "Fuck Cops."
Just before the bar closed, Pineda and his friends walked out the back door and sat
down on a nearby bench. Isaiah Santoya, the barâ€Ÿs doorman and bouncer, noticed Pineda
had walked outside with a drink in his hand. Santoya asked Pineda to bring the drink
back inside, which was in accord with bar policy that all drinks were to be consumed on
the premises. Pineda initially refused and an argument between the two of them ensued.
Santoya testified Pineda "and his friends . . . came closer towards me
aggressively. . . . I stood my ground, just told them that I needed the drinks back inside
and he wasnâ€Ÿt going to be allowed back inside the bar." "[A]s things were escalating,
these guys were starting to surround me. You know, itâ€Ÿs getting tense. Itâ€Ÿs getting serious. . . . [T]he only thing I was worried about was . . . catching a beating. Itâ€Ÿs three
All further references are to the Penal Code unless otherwise specified.
[End Page 2]
to one." Pineda patted his pants pocket and said something about having a gun.2 The
women in Pinedaâ€Ÿs group told Santoya he had "fucked up" and "didnâ€Ÿt know what [he]
was getting [himself] into." Pineda and Santoya continued arguing for a few minutes,
and then Pinedaâ€Ÿs group walked away. Santoya followed them for a short distance, but
then turned around and walked back toward the bar.
When it appeared the argument between Pineda and Santoya was not winding
down, Velasco turned around and started walking to his car.
Filipo Nafanua, a regular customer at the bar, saw Santoya and Pineda arguing
about the drink. Then Nafanua saw Pineda walk away and disappear around a corner.
But Pineda reappeared with a gun and started shooting. Nafanua heard two gunshots and
he was hit in the right knee.
Santoya testified he was still walking back toward the bar when he heard several
gunshots go off behind him. He ran into an alley and hid in a dumpster until he heard sirens. Then he realized he had been shot in the leg.
Velasco testified he heard gunshots while walking to his car. He got scared and started to run away. As he did, he heard Pineda and Palencia call out to him: "Leo, Leo, stop. Get in the car and letâ€Ÿs leave." Pineda and Palencia were standing near Velascoâ€Ÿs
car and demanding his car keys, saying: "Get the keys, mother fucker." When Velasco
refused, Palencia yelled: "If heâ€Ÿs not coming back, shoot him." Velasco kept running,
jumped a fence and hid in some bushes.
A week or so after the incident, Velasco received a telephone call from Palencia,
who said: "Thanks to you, we are on the run." Palencia warned Velasco to stay away
from the police. Some time later, Velasco ran into Pinedaâ€Ÿs twin brother, Mauricio, who
warned him not to testify against Pineda.3
Velasco testified Pineda said, "It seemed that the man [i.e., Santoya] wanted to see
the strap." Velasco testified "strap" was a reference to a pistol.
Velasco testified Mauricio "started telling me not to come to the court, that it was
not necessary; that I was not involved in this and to try . . . not to testify against
[Pineda]." Mauricio said, "they didnâ€Ÿt want . . . nothing bad happening to me."
[End Page 3]
b. In the aftermath of the shooting.
Santoya was treated by Dr. Edmund Nichter at Queen of the Valley Medical
Center. Nichter testified Santoyaâ€Ÿs gunshot wound was relatively superficial: "[T]he
bullet grazed the skin, causing [an] abrasion and then it lodged just subcutaneously in the
right thigh. So I made an incision [using a local anesthetic] . . . and extracted the bullet
with minimal difficulty." Nichter then closed the wound with three sutures. Asked if
Santoyaâ€Ÿs injury were serious, Nichter testified: "Any time a patient presents with a
gunshot wound, itâ€Ÿs serious. Now, it is . . . in the lower extremity, itâ€Ÿs obviously less serious than it would be if it was in the abdomen or the chest."
Nafanua told police the gunman was a Hispanic man, 19 to 21 years old, who was
wearing a black Oakland Raiders football jersey with the number 34 on it, and who had a
large tattoo on the front of his neck and a "626" tattoo on the back of his head. When
police searched Pinedaâ€Ÿs house, they found a black Raiders jersey with the number 34.
Shown a six-pack photo array, Nafanua said two of the men looked similar to the
gunman; one of the two was Pineda.
Police found four .25 caliber bullet casings at the shooting scene, but the gun was
never recovered. Tracy Peck, a firearms examiner, testified a semiautomatic pistol used a
magazine, fired one bullet with each pull of the trigger, would shoot as fast as the trigger
could be pulled, and automatically ejected the used cartridge cases. The four ".25 auto
caliber cartridge case[s]" found at the shooting scene had all been fired from the same
weapon, and the bullet removed from Santoyaâ€Ÿs leg was "consistent with bullets
commonly loaded in .25 auto caliber cartridges." Peck opined the weapon that fired the
bullet and the four cartridge cases was "[m]ost likely" a semiautomatic pistol.
Officer Avila testified he has known Pineda and his twin brother, Mauricio, for
about 10 years. Pineda has "Azusa" tattooed on his neck; this tattoo is very large and
covers virtually the entire front of Pinedaâ€Ÿs neck. "[O]n the top of his head, above his
hairline, he has the statement of â€žFuck Cops.â€Ÿ He has also double horns on his head.
He has an â€žAâ€Ÿ tattooed on his left eye . . . area and a teardrop on his right . . . side . . .
[s]ame area, right below his eye."
[End Page 4]
While Pineda was in jail on this case, he made some telephone calls which could
be interpreted as asking various people to contact prosecution witnesses.
c. Prior incident at Dodger Stadium.
On September 2, 2009, six weeks before the bar shooting, Pineda was involved in
an altercation at Dodger Stadium. Mark Hubert, an off-duty police officer, was working
as a security guard at the stadium. It came to his attention that Pineda had been "using
profanity, and flipping off people in the stand[s] using his middle finger." Hubert went
up into the stands, saw Pineda sitting with a group of eight men, and asked him to come
downstairs. Hubert told Pineda he was being ejected from the ballpark because of his bad
behavior. Pineda replied, "If Iâ€Ÿm going to go, Iâ€Ÿm going to go for something good." He
removed his shirt and took a fighting stance with his fists raised. Hubert handcuffed him.
Hubert testified Pineda "proceeded to tell me what a bad ass he was and how he had been
arrested several times. And he had seen me around there several times. He referred to
me as white boy. Yeah, Iâ€Ÿve seen you here, white boy. Iâ€Ÿm going to come get you. You see who I hang out with up there. Weâ€Ÿre going to come get your ass. Youâ€Ÿre not safe."
"Q. And, when . . . he said something about you see who Iâ€Ÿm with up there, did he
point up in the stands where he had previously been sitting?
"A. Yeah. He gestured up toward the stands. We were outside the stadium . . . ."
As a result of Pinedaâ€Ÿs threat, Hubert began carrying a weapon to his Dodger
d. Gang evidence.
Azusa Police Officer Rocky Wenrick worked in the gang unit and was familiar
with Pinedaâ€Ÿs family. Pineda, whose gang moniker was Raider, belonged to the Barrio
Azusa 13 gang. Wenrick had known Pineda and his brother, Mauricio, for about six
years. In general, a member of the Barrio Azusa 13 gang would have the following body
tattoos: "The name â€žAzusa,â€Ÿ an â€žA,â€Ÿ a â€ž13,â€Ÿ â€žSUV,â€Ÿ â€žCanyon City.â€Ÿ " Wenrick also
described Pinedaâ€Ÿs tattoos: He "has â€žAzusaâ€Ÿ on the front of his neck. On his chest it says
â€žAzusa.â€Ÿ On the back of his head, he has â€žSUV 626.â€Ÿ . . . I believe he has an â€žAâ€Ÿ on the
[End Page 5]
top of his head and the Roman numeral X and 3 [representing 13]." Pineda also had a
"Fuck Cops" tattoo on his forehead.
One way to gain status within the gang is to stand up to authority figures: "It just shows they are not a coward [sic]. Theyâ€Ÿre not going to back down when theyâ€Ÿre
questioned or called upon. When someone calls them out, theyâ€Ÿre not going to back
down, or theyâ€Ÿre disrespected. Theyâ€Ÿre going to step up and handle their business."
Wenrick knew about the Dodger Stadium incident and he had an opinion about why
Pineda had threatened Hubert:
"Based on the number of people that are in the stands and watching the game, he
canâ€Ÿt be belittled or disrespected. Iâ€Ÿm sure he felt like Iâ€Ÿm being disrespected by this security guard. So . . . to let him know, he shows tattoos. He advises of his gang
membership and then he makes the threats of his past criminal activity. â€žYou donâ€Ÿt know
who I amâ€Ÿ is . . . done to show that heâ€Ÿs not going to back down and to intimidate the security guard and hoping heâ€Ÿll back down just based on heâ€Ÿs a gang member. Heâ€Ÿs
threatening. Heâ€Ÿs done other crimes in the past. And itâ€Ÿs done to intimidate and
hopefully get the security guard to back down. [Â¶] . . . [Â¶]
"Q. And, in a situation in which that security guard confronted Mr. Pineda about a
glass being taken out of a bar, would that also have any affect [sic] on how Mr. Pineda
would react when confronted by that security guard?
"A. That would be very similar to the stadium. He feels heâ€Ÿs being disrespected
by the security guard just doing his job so heâ€Ÿs got to elevate the situation and let him
know, hey, this is who I am. Do you know who youâ€Ÿre messing with? That type of situation."
2. Defense evidence.
Jessica Esparza had known Pineda for more than five years, and she knew Velasco
through Pineda. After the bar shooting, Velasco came to Esparzaâ€Ÿs house to ask how
Pineda was doing. Velasco also telephoned her several times. Velasco never said
Pinedaâ€Ÿs brother had threatened him.
[End Page 6]
Pinedaâ€Ÿs mother testified she had seen Velasco outside her house several times.
He called her cell phone at least three times, but she never spoke to him.
1. The trial court erred by denying Pinedaâ€Ÿs mistrial motion for jury misconduct.
2. There was insufficient evidence to sustain the assault convictions and the great
bodily injury enhancement as to Santoya.
3. The trial court improperly admitted evidence about the Dodger Stadium
incident and Pinedaâ€Ÿs gang affiliation.
4. The trial court failed to properly instruct the jury on the definition of
5. Penal Code section 245, subdivision (b) (assault with a semiautomatic firearm)
violates equal protection.
6. There was cumulative error.
7. The trial court made a series of sentencing errors:
a. The trial court improperly imposed upper terms for count 3 and the
attached firearm use enhancement.
b. The trial court improperly imposed a firearm use enhancement on
c. The trial court improperly imposed a full-term consecutive enhancement
for the great bodily injury enhancement on count 4.
d. The trial court improperly imposed a consecutive term on count 4.
e. The sentence on count 3 constituted cruel and unusual punishment.
1. Juror misconduct did not warrant a mistrial.
Pineda contends the trial court erred by denying his motion for a mistrial based on
jury misconduct. This claim is meritless.
During deliberations, the jury sent out a note which the trial court subsequently
read in the juryâ€Ÿs presence:
[End Page 7]
"The Court: [Â¶] . . . [Â¶] . . . Iâ€Ÿll read it verbatim as written. It states, â€žWe just
would like to note, came up in conversation defendantâ€Ÿs family looked at jury panel,
possible gesture directly at the jury. We are not threatened, but just wanted it to go on the
record. A few of us live within the vicinity.â€Ÿ And this is ostensibly prepared by Juror
No. 12, who I am assuming is the foreperson?"
After the court confirmed Juror No. 12 was indeed the foreperson, the following
"The Court: [Â¶] . . . [Â¶] The communication indicates that this issue came up
during conversation. Do you mean that it came up during deliberations or during
conversation outside of deliberations?
"The Foreperson: During deliberations.
"The Court: And was this brought to the deliberating juryâ€Ÿs attention by just one
juror or more than one juror?
"The Foreperson: It was one juror.
"The Court: And after the subject was brought to the attention of the remaining
deliberating jurors, was it discussed at that point?
"The Foreperson: Yes.
"The Court: And once it was discussed during deliberations, obviously it
concerned you, or perhaps more members of the jury, enough to where you had to alert
the court that it was an issue; correct?
"The Foreperson: Yes.
"The Court: Now, despite the subject being discussed during deliberations, do you
feel that itâ€Ÿs had an impact on you, or perhaps anyone else, with respect to their ability to
focus simply on the evidence in this case and to remain fair and impartial?
"The Foreperson: No, it has not been a concern.
"The Court: Which [the] communication somewhat addresses, it says, â€žWe are not
threatened by it,â€Ÿ in other words not affected by it. Now I need to admonish the jury that
itâ€Ÿs critical that your deliberations focus only on the evidence presented in this courtroom,
and like the instructions have already mentioned from the start, your decision must be
[End Page 8]
based solely upon the evidence and not by any other source, in other words, information
outside the evidence, whether or not it occurred in the courtroom or outside the
courtroom, none of that is evidence. It shouldnâ€Ÿt have even been addressed during
deliberations, it should have been kept separate and apart from deliberations because itâ€Ÿs
not evidence . . . . [Â¶] So Juror No. 12, do you feel that this jury can continue
deliberations and focus simply on the evidence that has been presented?"
After Juror No. 12 responded "yes," the trial court asked all the other jurors
individually if they felt the same or differently, and each juror agreed that what happened
would not interfere with deliberations.
Then, outside the juryâ€Ÿs presence, the trial court told counsel it had "decided not to
inquire as to the details of the gesture that was made and who made it, that type of thing,
because my fear is that it highlights the issue once again and kind of makes it a subject
for the jury to at least think about it despite my admonition not to consider it. Iâ€Ÿm
reluctant to go into the details since Iâ€Ÿve told them now whatever it was they cannot
consider it at all, and they seem to be all in agreement. So was my inquiry adequately
[sic] based upon my concerns?" Defense counsel said, "I think so," but then made a
mistrial motion "for the record . . . since it was brought up in the deliberation room and
everybody discussed it." Defense counsel added, "I donâ€Ÿt think further â€" unless the court
thinks further inquiry would be needed to address that motion made by me." The
prosecutor said, " . . . Iâ€Ÿm going to agree with the court. I donâ€Ÿt think we need to inquire
further for the reasons that the court has indicated, but perhaps at the conclusion,
whenever we do release this jury, just to determine whether or not there was something
that we should consider as far as tampering with [the] jury and intimidation of the jury,
but not at this point. [Â¶] The Court: Okay, thank you. Iâ€Ÿll permit the jurors to continue
their deliberations . . . ."
While the jury continued to deliberate, defense counsel argued for a mistrial based
on jury misconduct because "it was apparently discussed by the group or at least in front
of the group, and so itâ€Ÿs . . . extrinsic evidence, if you will, that theyâ€Ÿre not permitted to
consider, and it may now have an impact on their decision." The trial court denied the
[End Page 9]
motion, agreeing the jury should not have discussed the incident during deliberations, but saying all the jurors appeared to understand they could not consider the conduct of
Pinedaâ€Ÿs family "for any reason whatsoever."
b. Legal principles.
"An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is â€ž "capable and willing to decide the case solely on the evidence
before it" â€Ÿ [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) "Any
presumption of prejudice [arising from juror misconduct] is rebutted, and the verdict will
not be disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant. [Citations.]" (Id. at p. 296.)
" â€žA sitting jurorâ€Ÿs involuntary exposure to events outside the trial evidence, even
if not "misconduct" in the pejorative sense, may require . . . examination for probable
prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as
by bribery or intimidation. [Citations.]â€Ÿ [Citation.] â€ž[T]ampering contact or
communication with a sitting juror[ ] usually raises a rebuttable "presumption" of
prejudice. [Citations.]â€Ÿ [Citation.] â€žStill, whether an individual verdict must be
overturned for jury misconduct or irregularity " â€ž "is resolved by reference to the substantial likelihood test, an objective standard." â€Ÿ " [Citation.] Any presumption of
prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the
particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e.,
no substantial likelihood that one or more jurors were actually biased against the
defendant. [Citations.]â€Ÿ [Citation.] We independently determine whether there was such
a reasonable probability of prejudice. [Citation.]" (People v. Harris (2008) 43 Cal.4th
[End Page 10]
Pineda argues, "There was jury misconduct, even if not in the pejorative sense, in
that the jury was exposed to events outside the trial evidence, namely, an attempt by
appellantâ€Ÿs family to tamper with the jury . . . . That presumption was not rebutted."
"[T]he very fact that the foreperson stated in effect that several of the jurors lived in the
vicinity showed that the jurors actually did feel threatened by appellantâ€Ÿs familyâ€Ÿs looks
and gesture. Given all of the emphasis in the trial [on] appellantâ€Ÿs gang membership and
related matters . . . , the jury must have been concerned that appellantâ€Ÿs family were also
gang members and were violent, and at least one of the jurors must have been influenced
by this in his or her vote contributing to the verdict, to appellantâ€Ÿs detriment. Therefore,
the presumption of prejudice was not rebutted . . . ."
We disagree. The jury did not report any written or verbal communication with
the assumed family members, let alone any actual written or verbal threats. The reported
conduct consisted of an ambiguous gesture which did not scare the jurors, according to
their note to the trial court, which said: "We just would like to note, came up in
conversation defendantâ€Ÿs family looked at jury panel, possible gesture directly at the jury.
We are not threatened, but just wanted it to go on the record. A few of us live within the
In People v. Panah (2005) 35 Cal.4th 395, "[i]t appears from the record that some supporters of defendant were following or â€žshadowingâ€Ÿ the jurors during breaks in their
deliberations, while others, including [defendantâ€Ÿs] mother, were clustering near the jury
while it was assembling on breaks. Against this backdrop, the trial court reported a juror
had told the bailiff she felt intimidated by the presence of defendantâ€Ÿs supporters,
particularly his mother. The bailiff noted that he had also overheard a male juror express
relief that the jury no longer had to assemble â€žon the sixth floor,â€Ÿ presumably to avoid
contact with defendantâ€Ÿs supporters." (Id. at p. 480.) Based on these facts, Panah held
the defendantâ€Ÿs claim of juror bias was meritless: "There is no evidence the jury was
biased against defendant, his mother, or his supporters, much less that such bias infected
its deliberations. What the record seems to indicate is spectator misconduct on the part of
[End Page 11]
defendantâ€Ÿs supporters who, intentionally or not, made themselves conspicuous to the
jurors in a manner that some of the jurors interpreted as intimidating. The jurorsâ€Ÿ
understandable concern does not amount to misconduct, and there is nothing on the
record to support defendantâ€Ÿs claim that he was denied an impartial jury." (Ibid.)
The facts here were even less alarming than in Panah. Pineda has failed to prove
by a demonstrable reality that one of the jurors was actually biased against him.
We also note our Supreme Court has said, in dictum: "At the outset, we question
whether a convicted person can ever overturn the verdict on grounds that persons acting
in his behalf deliberately sought to influence the jury. Certainly no such claim could ever
be valid where the accused himself had instigated the incident; a party cannot profit by
his or her own wrongdoing. But even where, as here, there is no evidence petitioner was
directly involved, recognition of such a claim suggests tempting opportunities for
accusedsâ€Ÿ allies to manufacture challenges against subsequent convictions."
(In re Hamilton (1999) 20 Cal.4th 273, 305, fn. omitted.)
We conclude the trial court did not err by refusing to declare a mistrial based on
Pinedaâ€Ÿs claim of juror misconduct.
2. There was sufficient evidence to support Pineda's convictions for assault with a semiautomatic firearm and the accompanying great bodily injury enhancement as to
Pineda contends there was insufficient evidence to sustain his convictions for
assaulting Santoya and Nafanua, as well as the great bodily injury enhancement finding
as to Santoya. These claims are meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing courtâ€Ÿs task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence â€" that is, evidence that is reasonable, credible, and of
In Hamilton, a juror saw the defendantâ€Ÿs sister and her boyfriend parked in an
alley behind the jurorâ€Ÿs home, and they sped off when they noticed the juror looking at
[End Page 12]
solid value â€" such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] â€ž "Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendantâ€Ÿs guilt beyond a reasonable doubt. â€ž "If the
circumstances reasonably justify the trier of factâ€Ÿs findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment." â€Ÿ [Citations.]" â€Ÿ [Citation.]" (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
The reviewing court is to presume the existence of every fact the trier of fact could
reasonably deduce from the evidence. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Even if the reviewing court believes the circumstantial evidence might be reasonably
reconciled with the defendantâ€Ÿs innocence, this alone does not warrant interference with
the trier of factâ€Ÿs verdict. (People v. Towler (1982) 31 Cal.3d 105, 118.) It does not
matter that contrary inferences could have been reasonably derived from the evidence.
As our Supreme Court said in People v. Rodriguez, supra, 20 Cal.4th 1, while reversing
an insufficient evidence finding because the reviewing court had rejected contrary, but
equally logical, inferences the jury might have drawn: "The [Court of Appeal] majorityâ€Ÿs
reasoning . . . amounted to nothing more than a different weighing of the evidence, one
the jury might well have considered and rejected. The Attorney Generalâ€Ÿs inferences
from the evidence were no more inherently speculative than the majorityâ€Ÿs; consequently,
[End Page 13]
the majority erred in substituting its own assessment of the evidence for that of the jury."
(Id. at p. 12, italics added.)
b. There was sufficient evidence Pineda was the gunman.
Pineda contends there was insufficient evidence to show he was the person who shot Nafanua and Santoya. This claim is meritless.
Santoya, who did not see the gunman, testified the man he had been arguing with
outside the bar was wearing a Raiders football jersey, had a "626" tattoo on the back of
his head, and had other tattoos on his face. A photograph of Pineda confirms he had
these tattoos. Velasco, who was acquainted with Pineda, testified it was Pineda who
argued with Santoya that night. Velasco testified Pineda tapped his pants pocket and said something which referred to the gun he was carrying. Velasco also testified that, after he
refused to drive Pineda and Palencia away from the shooting scene, he heard Palencia
yell to Pineda: "If heâ€Ÿs not coming back, shoot him." This was additional circumstantial
evidence showing Pineda had the gun. Finally, Nafanua testified he saw Pineda fire the
Pineda argues there were "huge problems" with Nafanuaâ€Ÿs identification of him as
the gunman. Not so. Almost all of Pinedaâ€Ÿs points are merely disguised jury argument:
E.g., there was a dispute as to how many shots had been fired;5 Nafanua would have had
a hard time identifying anyone because it was 1:30 a.m. and the gunman was 50 feet
away; Nafanua would have been looking at the weapon, not the gunmanâ€Ÿs face; and,
Nafanua could have mistaken Palencia or Mauricio for Pineda because they both looked
like him. None of these is reason for overturning the juryâ€Ÿs verdict.
Pineda argues Nafanua acknowledged having testified at the preliminary hearing
that he did not know who fired the shots, he never saw anyone with a gun, and his
memory was fresher at the time of the preliminary hearing than it was at the time of trial.
But Pineda is ignoring the fact that, while some of Nafanuaâ€Ÿs preliminary hearing
Nafanua testified he only heard two shots, while Velasco testified there were about
three to five shots, and Santoya testified he heard "several" shots.
[End Page 14]
testimony was contradictory, he did testify he could identify the gunman and that it was
the same person who had been arguing with Santoya.6 Nafanua also testified his memory
was even fresher on the night of the shooting, when he identified Pineda to the police,
than it had been at the time of the preliminary hearing. Pinedaâ€Ÿs assertion that Nafanuaâ€Ÿs
identification of him was inherently improbable and not credible is meritless.
There was more than sufficient evidence to prove Pineda had been the gunman.
c. There was sufficient evidence the weapon used was a semiautomatic.
Pineda contends that, even if the evidence proved he had been the gunman, there
was insufficient evidence to prove he used a semiautomatic weapon. This claim is
Pineda points out the gun was never recovered and had not been "identified as to
type by Nafanua, who was the only person who testified to seeing the weapon." Pineda
argues the only evidence showing what kind of gun it was came from the firearms
examiner, Peck, who testified the bullet extracted from Santoyaâ€Ÿs leg "most likely" had
come from a semiautomatic firing .25-auto caliber cartridges. Pineda argues Peck
acknowledged there did exist some revolvers that could fire .25-auto caliber ammunition.
At the preliminary hearing, Nafanua initially testified he had not seen anyone with
a gun, although he did remember telling the police he saw Pineda with a gun in his hand.
Nafanua then again denied having seen Pineda with a gun, but subsequently reversed
himself and testified the gunman had the same facial tattoos as Pineda. On cross-
examination, Nafanua indicated he was only identifying Pineda as the gunman because
Pineda was sitting at the defense table, but on redirect Nafanua reversed himself yet
again: "Q. It seems [defense counsel] was asking you if earlier when you i.d.â€Ÿd the
defendant in court today as the person you saw in the bar on October 18, she was asking
you, did you do that because you actually remembered him from that date or because
youâ€Ÿre just pointing to whoever you saw in a blue jail jumpsuit? [Â¶] Which is more
accurate, that you remember him from that date or you just pointed to whoever was here?
[Â¶] A. I remember him from that date." At trial, Nafanua confirmed that at the
preliminary hearing he had identified Pinedaâ€Ÿs tattoos "as being the same facial tattoos as
the person who was shooting," that he had truthfully identified the gunman to the police
that night within minutes of the shooting, and that the person he identified that night as
the gunman was "the same person" he had seen arguing with Santoya.
[End Page 15]
We are not persuaded. Although Peck testified there were .25-auto caliber
revolvers, she also testified that so far as she could determine none of them possessed
"the same general rifling characteristics as the bullet in this case."
The following colloquy occurred:
"Q. Now, youâ€Ÿve offered the opinion that this was a semiautomatic pistol,
"A. Most likely, yes. [Â¶] . . . [Â¶]
"Q. Isnâ€Ÿt it true there are .25-caliber revolvers?
"A. I believe there are a few out there. As far as ones manufactured that have the same general rifling characteristics as the bullet in this case, I did not locate any.
"Q. Did you specifically look?
"A. I looked for any .25 auto caliber firearms.
"Q. Okay. And you say most likely. That means you canâ€Ÿt be definite?
"A. Well, again, the database that I refer to is all of the firearms that are known to
the FBI. So could there be additional firearms that are made that the FBI hasnâ€Ÿt heard of?
Probably. I donâ€Ÿt know.
"Q. Okay. But the FBIâ€Ÿs heard of .25-caliber revolvers; true?
"A. Yes. There are some, yes.
"The Court: Are they a common type of firearm? [Â¶] . . . [Â¶]
"The witness: I have never seen one in casework.
"Q. [By defense counsel]: Okay. In your 11 years or 8 years doing ballistics?
"A. Eight years, yes." (Italics added.)
When read in the context of this testimony, Peckâ€Ÿs opinion that the gun "most
likely" had been a semiautomatic was sufficient proof of this element of the offense.
d. There was sufficient evidence Santoya suffered great bodily injury.
Pineda contends there was insufficient evidence to sustain the great bodily injury
enhancement as to Santoya because the evidence showed he had suffered merely a superficial wound, the bullet having "lodged just subcutaneously" in his thigh, far from
"any of the major arteries in the leg," and it had been easily extracted.
[End Page 16]
"It is well settled that the determination of great bodily injury is essentially a
question of fact, not of law. â€ž "Whether the harm resulting to the victim . . . constitutes
great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient
evidence to sustain the juryâ€Ÿs finding of great bodily injury, we are bound to accept it,
even though the circumstances might reasonably be reconciled with a contrary
finding." â€Ÿ " (People v. Escobar (1992) 3 Cal.4th 740, 750.) Great bodily injury means a significant or substantial injury. (Id. at p. 746.) It does not require that the victim suffer
" â€žpermanent,â€Ÿ â€žprolonged,â€Ÿ or â€žprotractedâ€Ÿ disfigurement, impairment, or loss of bodily
function." (Id. at p. 750.)
The following injuries have been held to constitute great bodily injury: bruising, scrapes, and abrasions accompanied by neck and vaginal pain (People v. Escobar, supra,
3 Cal.4th at p. 744, 749-750); "[a]brasions, lacerations, and bruising" (People v. Jung
(1999) 71 Cal.App.4th 1036, 1042); swollen jaw, bruises to the head and neck, and sore
ribs (People v. Corona (1989) 213 Cal.App.3d 589, 592); multiple contusions causing
painful swelling and discoloration (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836).
Penetrating gunshot wounds have been found sufficient to sustain great bodily
injury findings in situations akin to Santoyaâ€Ÿs injury. (See People v. Wolcott (1983)
34 Cal.3d 92, 106-108 [victim shot in calf, but bullet fragments lodged in arms; doctor
removed one fragment but left others to work themselves out; victim lost little blood,
required no sutures and went to work next day]; People v. Mendias (1993)
17 Cal.App.4th 195, 205-206 [victim shot in thigh treated at hospital, but bullet not
removed]; People v. Lopez (1986) 176 Cal.App.3d 460, 465 [bullet traversed victimâ€Ÿs
thigh, but no evidence wound was more than superficial because no evidence victim sought or received medical treatment].) Santoya testified he had to use a cane for a
month and had a limp for a longer period of time.
There was sufficient evidence Santoya had suffered great bodily injury.
[End Page 17]
3. Gang evidence and the Dodger Stadium incident were properly admitted.
Pineda contends the trial court erred by admitting evidence of his gang affiliation
and the Dodger Stadium altercation to show his motive for having committed the bar shooting. This claim is meritless.
While acknowledging there were no gang allegations (§ 186.22) in this case, the
trial court ruled evidence about Pinedaâ€Ÿs membership in the Azusa 13 gang and about the
Dodger Stadium incident was admissible to prove motive. The trial court concluded that,
given Pinedaâ€Ÿs mistaken identity defense, the prosecution was entitled to show he would
have had a motive for shooting Santoya. That is, evidence showing Pineda would have
considered the otherwise innocuous encounter with Santoya, who was merely enforcing
the barâ€Ÿs no-drinks-outside policy, as a serious act of disrespect and humiliation was
relevant to explain Pinedaâ€Ÿs potentially lethal response.
As to the bar incident, the trial court reasoned that Pinedaâ€Ÿs "personal property
was taken from him against his will by this large person, and what compounded that situation is the allegation that the defendant was disrespected in front of his friends,
possible fellow gang members, including a couple of female companions. A gangster
placed in that particular situation cannot allow that type of disrespect to go unpunished."
The Dodger Stadium incident was "a clear example [of Pineda] being disrespected in
front of his fellow gang members by a person of authority. He cannot allow that to go
unpunished. That is why he put up the fight. That is why he made credible threats.
When you disrespect a gang member in front of fellow gang members, that is a recipe for
disaster that can often result in lethal consequences, which is identical to the Peopleâ€Ÿs
theory outside that bar. . . . Even under [Evidence Code section] 352, the probative value
. . . clearly outweighs the prejudicial effect. It is essential to the Peopleâ€Ÿs case because
without this evidence . . . [i]t almost looks like a random act."
b. Legal principles.
The admission of gang evidence always carries a risk of prejudice. "When offered
by the prosecution, we have condemned the introduction of evidence of gang
[End Page 18]
membership if only tangentially relevant, given its highly inflammatory impact."
(People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, "evidence of gang membership is
often relevant to, and admissible regarding, the charged offense. Evidence of the
defendantâ€Ÿs gang affiliation â€" including evidence of the gangâ€Ÿs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like â€" can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (People v.
Hernandez (2004) 33 Cal.4th 1040, 1049; see also People v. Ruiz (1998) 62 Cal.App.4th
234, 239 [notwithstanding potential prejudicial effect of gang evidence, such evidence
was admissible "when the very reason for the crime is gang related"]; People v. Martin
(1994) 23 Cal.App.4th 76, 81 ["where evidence of gang activity or membership is
important to the motive, it can be introduced even if prejudicial"].)
Evidence Code section 1101, subdivision (b) expressly allows evidence of
uncharged crimes or other bad acts to be admitted "when relevant to prove some
fact[ ]such as motive. . . ." As Pineda acknowledges, we have previously explained that
evidence a defendant had a common motive for committing the same type of misconduct
is probative: "Other crimes evidence is admissible to establish two different types or
categories of motive evidence. In the first category, â€žthe uncharged act supplies the
motive for the charged crime; the uncharged act is cause, and the charged crime is effect.â€Ÿ
[Citation.] â€žIn the second category, the uncharged act evidences the existence of a
motive, but the act does not supply the motive. . . . [T]he motive is the cause, and both
the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive.â€Ÿ [Citation.] [Â¶] California case law allows the admission of other crimes
evidence to prove this second kind of motive." (People v. Spector (2011)
194 Cal.App.4th 1335, 1381.)
On appeal, we review the trial courtâ€Ÿs rulings concerning the admissibility of the
evidence for abuse of discretion. (See, e.g., People v. Thornton (2007) 41 Cal.4th 391,
444-445) A trial court has broad discretion to determine the relevance of evidence,
[End Page 19]
although it lacks discretion to admit irrelevant evidence. (People v. Carter (2005)
36 Cal.4th 1114, 1166-1167; People v. Memory (2010) 182 Cal.App.4th 835, 858.)
Pineda acknowledges these general principles, but argues they were inapplicable
here because "the problem in this case is that the motive evidence was weak and the
prejudice was strong." But Pinedaâ€Ÿs arguments in this regard are unpersuasive.
Pineda asserts his case is similar to People v. Memory, supra, Cal.App.4th 835,
which reversed convictions arising out of a bar parking lot fight because evidence was
admitted likening the defendantsâ€Ÿ club to the Hellâ€Ÿs Angels, an outlaw motorcycle gang
whose members are committed to never backing down in a fight. But the problem in
Memory was that there was no evidence defendantsâ€Ÿ group, the Jus Brothers motorcycle
club, was actually a criminal gang.7 Here, on the other hand, it was clear Pineda did
belong to a criminal street gang.
Officer Wenrick testified he worked as as a "gang specialist in the gang unit at
Azusa Police Department." "[M]y assignment as a . . . gang specialist officer is to follow
up on gang crimes, gather gang intelligence out in the field by contacting gang
members." Wenrick testified he has known Pineda for five or six years, and that Pineda
was a member of the Barrio Azusa 13 gang. Wenrickâ€Ÿs opinion regarding Pinedaâ€Ÿs
conduct during the Dodger Stadium incident was clearly based on Pinedaâ€Ÿs gang
membership: "[H]e shows tattoos. He advises of his gang membership and then he
makes the threats of his past criminal activity. â€žYou donâ€Ÿt know who I amâ€Ÿ is . . . done to show that heâ€Ÿs not going to back down and to intimidate the security guard and hoping
heâ€Ÿll back down just based on heâ€Ÿs a gang member. Heâ€Ÿs threatening. Heâ€Ÿs done other
"There was no evidence the Jus Brothers was a criminal enterprise and the only
evidence of a connection between the two groups was that some individual members of
the Jus Brothers wore patches in support of the Hells Angels, usually in memory of a
friend, members of the Jus Brothers attended functions put on by the Hells Angels, and
the Jus Brothers Web site had a link to the Hells Angels Web site." (People v. Memory, supra, 182 Cal.App.4th at p. 861.)
[End Page 20]
crimes in the past. And itâ€Ÿs done to intimidate and hopefully get the security guard to
On cross-examination, Wenrick testified the gangs who were active in West
Covina included the West Covina Mob, the West Covina 13, and Walnut Street. These
gangs do not get along with Azusa 13, and if anyone from one of those gangs saw Pineda
in the neighborhood they would "do something" to him.
The following colloquy occurred:
"Q. Now, when a gang member is challenged, you say that itâ€Ÿs up to that gang
member . . . to show theyâ€Ÿre down for the cause and not back down; true?
"Q. And to do something immediate when forced?
"A. To act upon it, yes.
"Q. Even if that person is bigger than them?
"Q. Because . . . even if they lose the fight, the fact that they took on that person
upon challenge, thatâ€Ÿs the important part; true?
Defense counsel confirmed Wenrick had not been part of the original investigation
into the bar shooting, and that he was not testifying as a gang expert to help prove up a
gang enhancement. Rather, he was giving an expert opinion regarding the Azusa 13 gang
and Pinedaâ€Ÿs membership in that gang.
On redirect, Wenrick testified that, given Pinedaâ€Ÿs membership in Azusa 13,
"[i]t would be a natural response" for him to react violently "when confronted by a security guard." Then, on re-cross, defense counsel asked:
"Q. That would be true â€" the expectation to represent or to be down for the cause,
that would be true of not just Azusa 13. That would be true of any gang member; true?
Hence, unlike the situation in Memory, it was clear in this case that Azusa 13 was
the kind of criminal street gang that elicited a "never back down" attitude from its
[End Page 21]
members. Hence, the trial court did not abuse its discretion by admitting the gang
evidence to explain Pinedaâ€Ÿs motive for what would otherwise have been an inexplicable shooting.8
d. The Dodger Stadium incident was properly admitted.
Pineda asserts the Dodger Stadium incident was too dissimilar to the bar shooting
to be probative. He argues: "Those two incidents were very different from one another.
No one . . . testified that appellant threatened Santoya during the argument. Appellant
did not cause a commotion in the bar and was not ejected from the bar. His argument
with the bouncer concerned a technicality relating to a drink. The only elements that the
two incidents had in common were that appellant had words with a security person." We
disagree. Pineda did cause a commotion at the bar and he was ejected; Santoya testified
he told Pineda he would not be allowed back into the bar. There was evidence Pineda,
Palencia and Velasco were surrounding Santoya, and that Pineda threatened Santoya with
a gun. If the argument involved a "technicality," i.e., taking a drink outside the bar, then so did the Dodger Stadium incident, i.e., using obscene words and gestures during the
ball game. In both instances Pineda reacted to a very mild assertion of authority in an
outrageously aggressive manner.
Pineda argues that, because his ultimate altercation with Hubert occurred outside
the stands, he could not have been motivated by a desire to save face since his friends
could not have witnessed what was going on. But apart from the fact this is really speculation on Pinedaâ€Ÿs part, the evidence showed he had been motivated by the
humiliation he suffered in front of his friends when Hubert made him leave the stands. 8
Pineda also complains very briefly about the evidence of a photograph "which shows appellant in a room with his twin brother, Mauricio, who is pointing and
apparently has his finger on the trigger of what appears to be an assault weapon, and
which invited the jury to find guilt by association . . . ." We have examined this
photograph. Given the aggressive message constituted by Pinedaâ€Ÿs facial tattoos,
particularly the one on his forehead saying, "Fuck Cops," we cannot see that a picture of
his brother holding a gun could have been very prejudicial, particularly since Mauricio
was never implicated in the bar shooting.
[End Page 22]
And during their subsequent altercation, Pineda gestured toward the stands and said,
"You see who I hang out with up there. Weâ€Ÿre going to come get your ass. Youâ€Ÿre not safe." We do not see what difference it makes that his friends might not have been able
to see or hear his altercation with Hubert.
Pineda asserts he "did not invoke his gang affiliation at Dodger Stadium. Looking
at the evidence that was before the trial court at the time, appellant referred only to his
â€žhomies,â€Ÿ and â€žhomiesâ€Ÿ is not synonymous with â€žfellow gang members.â€Ÿ Even when the
Dodger Stadium evidence was put on during trial, there was no testimony that appellant
invoked his gang affiliation. Furthermore, there was no evidence that the people
appellant was with were his confederates or anything other than just his friends." We
disagree. The gang expert testified Pineda was implicitly invoking his gang affiliation by
flaunting his tattoos, boasting of his prior arrests, and threatening that he and his friends
would retaliate against Hubert. And while "homies" might, in some contexts, only refer
to someone from the same neighborhood, it can also mean "fellow gang members."
Pineda also argues the evidence did not show he invoked his gang affiliation
during the bar incident. We again disagree. Santoya testified he told police Pineda had
"thrown out" that he was "from Azusa." Given the extremely large "Azusa" tattoo on the
front of Pinedaâ€Ÿs neck, the jury reasonably concluded this was intended to be a gang
reference; common sense indicates Pineda was not purporting to represent the Azusa
Chamber of Commerce.
The trial court did not abuse its discretion by admitting the Dodger Stadium
incident into evidence.9
Pineda also argues, in passing, that the trial court should have precluded the gang
expert from testifying because, under sections 1054.1 and 1054.7 "there was a lack of the
required 30-day notice that a gang expert would be called by the prosecution and a lack
of discovery of appellant as a gang member." However, "prohibiting the testimony of a
witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of willful conduct." (People v. Gonzales (1994) 22 Cal.App.4th
1744, 1747.) Here there was neither. Although Pineda complained about an alleged lack
of notice, he never asked for a continuance to prepare for the gang expertâ€Ÿs testimony,
and he acknowledged he was "not alleging any sort of prosecutorial misconduct here."[End Page 23]
4. Any error in defining "semiautomatic firearm" for the jury was harmless.
Pineda contends his convictions must be reversed because the trial court erred by
failing to instruct the jury on the meaning of "semiautomatic firearm." We disagree.
During discussions with counsel about proposed jury instructions, the trial court
announced it was going to give CALCRIM No. 875 on the elements of assault with a semiautomatic firearm (§ 245, subd. (b)). But the court said it had not included that
instructionâ€Ÿs definition of "semiautomatic" because "I will define the term firearm in the
instructions for the firearm use allegation."10 However, the enhancement instruction
merely said: "A firearm is any device designed to be used as a weapon from which a
projectile is discharged or expelled through a barrel by the force of an explosion or other
form of combustion." The missing part of CALCRIM No. 875 would have said: "A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger."
b. Legal principles.
As we have pointed out, " â€žan instruction that omits an element of the offense does
not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.â€Ÿ " (People v. Scott (2001) 91 Cal.App.4th 1197, 1210; see Neder v. United States (1999) 527 U.S. 1
, 9, 18 [144 L.Ed.2d 35], [applying harmless
error standard to instructional error omitting element of an offense]; People v. Avila
(1995) 35 Cal.App.4th 642, 660-662 [failure to instruct on asportation element of
aggravated kidnapping was harmless error]; see also People v. Catlin (2001)
26 Cal.4th 81, 154 [even if instruction had omitted element of special circumstance
The trial court ruled Pineda "was put on notice that gang evidence was a possibility in
this case, [just] not necessarily exactly what witness would testify as to such gang
Hence, the jury was instructed Pineda had been charged in counts 3 and 4 with
assault with a semiautomatic firearm, and told: "The term firearm is defined in another
instruction to which you should refer."
[End Page 24]
charge, under the evidence presented any error would be harmless beyond reasonable
An appellate court will examine the jury instructions as a whole, along with the
attorneysâ€Ÿ closing arguments to the jury, to determine if the instructions sufficiently
conveyed the correct legal principles. (See People v. Kelly (1992) 1 Cal.4th 495, 524-527
[although trial court erroneously instructed jury it was legally possible to rape a dead
body, it was not reasonably likely jury misunderstood correct law regarding felony
murder and rape special circumstances given remaining instructions and attorneysâ€Ÿ jury
argument]; see also People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [improper intent
instructions were harmless error where closing arguments made jury aware specific intent
to kill was element of attempted murder].)
Assuming arguendo the trial court should have defined "semiautomatic firearm"
for the jury, although Pineda has cited no specific authority to that effect, we conclude
the error was harmless because this case is governed by People v. Flood (1998)
18 Cal.4th 470. That case involved a conviction for violating Vehicle Code section 2800.3 (unsafe driving while fleeing peace officer resulting in serious bodily
injury), where the trial court failed to define "peace officer."11
Flood held the error was not prejudicial whether measured by the state (Watson)
or the federal (Chapman) harmless error standard.12 "Reviewing the trial courtâ€Ÿs
"An individual violates [Vehical Code section 2800.3] whenever his or her â€žwillful
flight or attempt to elude a pursuing peace officer in violation of Section 2800.1
proximately causes death or serious bodily injury to any person . . . .â€Ÿ One element of a
violation of section 2800.1 is that the pursuing peace officerâ€Ÿs motor vehicle â€žis operated
by a peace officer, as defined in [Penal Code sections 830 through 832.9], and that peace
officer is wearing a distinctive uniform.â€Ÿ (§ 2800.1, subd. (a)(4).) Penal Code section
830.1, subdivision (a), defines the term â€žpeace officerâ€Ÿ to include â€žany police officer,
employed in that capacity and appointed by the chief of police . . . of a city.â€Ÿ " (People v.
Flood, supra, 18 Cal.4th at p. 482.)
People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967)
386 U.S. 18
[17 L.Ed.2d 705].
[End Page 25]
constitutional error under the Watson standard, we find no reasonable probability that the
outcome of defendantâ€Ÿs trial would have been different had the trial court properly
instructed the jury to determine whether Officers Bridgeman and Gurney were peace
officers. The prosecution presented unremarkable and uncontradicted evidence that they
were employed as police officers by the City of Richmond. In addition, throughout the
trial these officers and other witnesses corroborated that evidence in the course of
testifying regarding other issues. At no point during the trial did defendant contest or
even refer to the peace officer component of the distinctive uniform element of the
crime." (People v. Flood, supra, 18 Cal.4th at p. 490.) The same result was reached
under Chapman: "One situation in which instructional error removing an element of the
crime from the juryâ€Ÿs consideration has been deemed harmless is where the defendant
concedes or admits that element. [Citations.] . . . Defendant never referred to this
element of the crime during the trial and did not argue to the jury that the prosecution had
failed to prove this element beyond a reasonable doubt; indeed, he did not ask that the
issue even be considered by the jury." (People v. Flood, at pp. 504-505, footnotes
Pineda argues Flood is inapposite because there, the missing "peace officer"
definition was merely "a peripheral element of the offense," whereas here, "[t]here was
nothing peripheral about whether the firearm . . . was a semiautomatic firearm; that was
at the heart of the charged offense." Not so. In this respect Pinedaâ€Ÿs case is exactly the same as Flood: they both involve undisputed evidence regarding a peripheral element.
Pinedaâ€Ÿs defense was that it did not matter what kind of gun had been used in the bar shooting because he was not the gunman. During closing argument defense counsel
never once disputed the "semiautomatic" element of the assault charges, merely arguing
that if the jury was persuaded Pineda had been the gunman, it then just had to decide if
Pineda were guilty of attempted murder or assault.13
Defense argued: "[T]here may be some of you that think [Pineda] is the trigger
puller. He is the guy that shot the gun. What you then have to decide is, is it attempted
murder or is it assault with a semiautomatic firearm?" "If you believe that heâ€Ÿs the[End Page 26]
Pineda argues he was prejudiced "because the jurors had no basis for deciding
what a semiautomatic firearm was except for the testimony of [Peck] and the related
exhibit, which may not have been correct; or the jurors may not have given that aspect
of the charge any thought." But Peckâ€Ÿs explanation was obviously "correct." As Pineda
acknowledges, the missing definition would have said: "A semiautomatic pistol extracts
a fired cartridge and chambers a fresh cartridge with each single pull of the trigger."
(CALCRIM No. 875.) Peckâ€Ÿs testimony explained both parts of this definition.15 And
while Pineda tries to dismiss Peckâ€Ÿs explanation by arguing "the jury was instructed that
it need not accept the expertâ€Ÿs opinions as true or correct," this aspect of her testimony
did not really constitute an expert "opinion." Peckâ€Ÿs expert opinion was that, based on
the four cartridge casings and the bullet taken from Santoyaâ€Ÿs leg, the gun had most likely
been a semiautomatic. Her explanation of how a semiautomatic firearm operates was simply a statement of scientific fact. Pineda does not assert there was anything
inaccurate in her explanation.
gunman, there is certainly not evidence by proof beyond a reasonable doubt he did it with
an intent to kill. And certainly not cold, calculated, premeditated murder."
The Peopleâ€Ÿs exhibit No. 23 was a drawing entitled, "Semi-Automatic Pistol,"
with all the parts labeled, including a "magazine (detachable)."
Peck testified: "Now, in order to get a cartridge from the magazine into the
chamber of the pistol to fire it, the shooter would pull the slide, which is the top most
component of the pistol. The shooter would pull the slide to the rear. And that slide is
under heavy spring tension. So, when it is released, it will automatically return forward
on its own and, when it does so, it will push the cartridge at the very top of the magazine
into the chamber of the pistol, ready to fire. The shooter would then pull the trigger."
"And that cartridge case slams back against the breach face and forces the slide to the
rear as well. The cartridge case is then automatically ejected from the pistol. And now
all those gases have escaped and the pressures have gone down and that slide, because it
is still under spring tension, will again return forward on its own. And, when it does so, it
will push the next cartridge in the top of the magazine, into the chamber of the pistol,
ready to fire. And this type of pistol will fire one cartridge with each pull of the trigger."
[End Page 27]
Hence, any error in failing to instruct the jury on the definition contained in
CALCRIM No. 875 was harmless.
5. Section 245, subdivision (b) does not violate equal protection.
Pineda contends his convictions must be reversed because section 245, subdivision (b), the statute prohibiting assault with a semiautomatic firearm, violates
equal protection. This claim is meritless.
a. Legal principles.
"It is a fundamental principle that, â€ž[t]o succeed on [a] claim under the equal
protection clause, [a defendant] first must show that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.â€Ÿ [Citations.]
â€žIn considering whether state legislation violates the Equal Protection Clause of the
Fourteenth Amendment . . . we apply different levels of scrutiny to different types of
classifications. At a minimum, a statutory classification must be rationally related to a
legitimate governmental purpose. [Citations.] Classifications based on race or national
origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level
of intermediate scrutiny, which generally has been applied to discriminatory
classifications based on sex or illegitimacy. [Citations.]â€Ÿ [Citations.]" (People v.
Wilkinson (2004) 33 Cal.4th 821, 836-837.)
" â€žThe first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.â€Ÿ [Citations.]" (People v. Hofsheier (2006)
37 Cal.4th 1185, 1199.) "Under the equal protection clause, we do not inquire â€žwhether
persons are similarly situated for all purposes, but "whether they are similarly situated for
purposes of the law challenged." â€Ÿ [Citations.]" (Id. at pp. 1199-1200.) "If persons are
not similarly situated for purposes of the law, an equal protection claim fails at the
threshold." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
[End Page 28]
Pineda contends section 245, subdivision (b) violates equal protection because it
carries a punishment greater than that for violating section 245, subdivision (a)(2), the
crime of simple assault with a firearm. He argues: "[A] semiautomatic handgun fires
one cartridge with each pull of the trigger. But that is also true of double action . . .
revolvers, which were the standard-issue sidearm of countless police departments for
many decades. Most modern revolvers are traditional double-action. . . . While it is true
that . . . a semiautomatic handgun extracts a fired cartridge with each pull of the trigger,
that benefits law enforcement in many instances by allowing recovery of evidence, as
happened in this case. [Â¶] There is no compelling state interest in treating a person who
assaults someone with a double action . . . revolver much more leniently than a person
who assaults the same person with a semiautomatic handgun under the same
circumstances, causing the same injury . . . ."
Citing People v. Olivas (1976) 17 Cal.3d 236, Pineda asserts we must apply the strict scrutiny test in this situation: "This classification, affecting the length of a personâ€Ÿs
prison sentence, must be examined under the â€žcompelling state interestâ€Ÿ test, because it
involves a fundamental right â€" the right to liberty." But this argument ignores the
Supreme Courtâ€Ÿs subsequent opinion in People v. Wilkinson, supra, 33 Cal.4th at
pp. 837-838, which said: "The language in Olivas could be interpreted to require
application of the strict scrutiny standard whenever one challenges upon equal protection
grounds a penal statute or statutes that authorize different sentences for comparable
crimes, because such statutes always implicate the right to â€žpersonal libertyâ€Ÿ of the
affected individuals. Nevertheless, Olivas properly has not been read so broadly. . . .
[A] broad reading of Olivas, as advocated by defendant here, would â€žintrude[ ] too
heavily on the police power and the Legislatureâ€Ÿs prerogative to set criminal justice
policy.â€Ÿ " Hence, our Supreme Court "has subsequently rejected the argument that the
Olivas decision means that strict scrutiny is applied â€žwhenever one challenges upon equal
protection grounds a penal statute or statutes that authorize different sentences for
comparable crimes, because such statutes always implicate the right to "personal liberty"
[End Page 29]
of the affected individuals.â€Ÿ [Citation.] Instead, the Supreme Court has said that the
rational basis test applies to equal protection challenges based on sentencing disparities."
(People v. Ward (2008) 167 Cal.App.4th 252, 258.)
In this case, there is no reason not to apply the general rule that persons convicted
of different crimes are not similarly situated for equal protection purposes. (See People v.
Barrera (1993) 14 Cal.App.4th 1555, 1565.) "In Olivas, the court reviewed a statutory scheme in which youthful misdemeanants were punished more severely than adults who
committed the same crime. The court applied the strict scrutiny test, and found the
classification constitutionally infirm. [Â¶] But the fact that liberty interests are involved in
criminal punishment does not mean that every criminal law imposing punishment is subject to strict scrutiny. [Citations.] â€ž[I]t is one thing to hold, as did Olivas, that persons
convicted of the same crime cannot be treated differently. It is quite another to hold that
persons convicted of different crimes must be treated equally. The latter are not similarly situated for equal protection purposes.â€Ÿ [Citation.]" (People v. Kilborn (1996)
41 Cal.App.4th 1325, 1330.)
As the Attorney General points out, "the Legislature could reasonably find that a semiautomatic firearm is potentially more lethal than a non-automatic firearm. . . . In
light of this difference, [Pineda] is not similarly situated to a defendant who uses a non-
automatic firearm." Pineda argues the Attorney General is "merely speculat[ing],
without citation to authority, about what the Legislature could reasonably find with
respect to semiautomatic firearms." But Pineda himself has not cited any evidence from
the record discussing .25-caliber double-action revolvers. In any event, surely the
Legislature could have reasonably concluded semiautomatic handguns are inherently
more lethal than revolvers because, by virtue of their magazines, they are capable of
holding more bullets than revolvers, and thus their potential firepower is much greater.
There was no equal protection violation.
6. There was no cumulative error.
Pineda contends his convictions must be reversed for cumulative error. However,
"[b]ecause we identified only one harmless error [the trial courtâ€Ÿs failure to define
[End Page 30]
semiautomatic firearm], the claim of cumulative error is without merit." (People v.
Vieira (2005) 35 Cal.4th 264, 305; see also People v. Richie (1994) 28 Cal.App.4th 1347,
1364, fn. 6 ["Since we have found only one error properly preserved for appeal, we need
not address appellantâ€Ÿs contention that cumulative error at trial requires reversal."].)
7. Sentencing errors.
Pineda contends the trial court made a series of sentencing errors. With one
exception, we find these claims to be meritless.
As part of imposing a total term of 44 years 4 months,16 the trial court sentenced
Pineda as follows:
"The court selects as base term the high term of nine years on count 3. This is a
violation of Penal Code section 245, subdivision (b). The court selects high term for the
following reasons: The crime involved great violence, great bodily harm, a threat of
bodily harm and other acts disclosing a high degree of cruelty, viciousness, and
callousness. The defendant threatened witnesses, unlawfully prevented or dissuaded
witnesses from testifying, which the court can consider [as] factors relating to the
defendant himself. He has engaged in violent conduct that indicates a serious danger to society. His prior conviction[s] as an adult are numerous and increasing in seriousness.
The defendant was on probation at the time the present offense was committed, and his
prior performance on probation is certainly unsatisfactory.
"In terms of mitigation, I can find [no factors] mitigating the crime or mitigating
the offense for any basis relating to the defendant. So he has certainly earned the high
term as indicated.
"That high term must be doubled pursuant to [the Three Strikes law] for a total of
18 years. 16
This included a two-year sentence for violating section 422 (making criminal
threats), a conviction arising out of a separate prosecution based on the Dodger Stadium
[End Page 31]
"In addition and consecutive to that term, the court orders the defendant serve an
additional ten years pursuant to 12022.5, subdivision (a)(1). Specifically because the
defendant removed [sic] a loaded firearm and fired not only at his intended target but also
in the direction of unintended targets, striking both intended and unintended targets. That
was an extremely dangerous move on his behalf and it threatened the life of not only the
person he had a quarrel with but also other innocent individuals in the area. So he has
earned the high term on the gun use allegation." The trial court added a consecutive five-
year term under section 667, subdivision (a) (prior serious felony conviction).
The trial court then imposed a consecutive term for the second assault conviction:
"Subordinate to that term, the court will select one-third of the six-year mid term, which
is two years. This is pertaining to count 4, a violation of Penal Code section 245, subdivision (b). That two-year [term] must be doubled pursuant to [the Three Strikes
law] for a total of four years. [Â¶] In addition and consecutive to that term, the court will select one-third of the four-year mid term which is 1 year 4 months pursuant to 12022.5, subdivision (a), . . . the gun use allegation."
Finally, the trial court added two consecutive three-year terms (on count 3 and
count 4, respectively) for the great bodily injury enhancements.
b. Upper terms for count 3 and attached firearm enhancement were
Pineda contends that, by imposing an upper term on count 3 and a consecutive
upper term on the related firearm use enhancement, the trial court violated Cunningham
v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], as well as the rule against dual use
of sentencing factors. This claim is meritless.
Pineda contends the trial court violated Cunningham because the jury did not
make the required predicate factual determinations. However, "[i]n March 2007, the
California Legislature amended Penal Code section 1170, subdivision (b) of the
determinate sentencing law [DSL] to read: â€žWhen a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.â€Ÿ [Citation.] Several months later in
[End Page 32]
July 2007 in People v. Sandoval (2007) 41 Cal.4th 825 . . . , our Supreme Court judicially
adopted the amendment to section 1170 for retroactive application and further held â€žthe
prohibition on ex post facto laws applies only to statutory enactments, not to judicial
decisionsâ€Ÿ in upholding a trial courtâ€Ÿs authority to impose an upper term sentence based
on facts found by the court. [Citations.] In light of section 1170 as construed by
Sandoval, the trial courtâ€Ÿs imposition of the upper-term sentence in 2010, after the
amendment to section 1170 and publication of Sandoval in 2007, is lawful." (People v.
Frandsen (2011) 196 Cal.App.4th 266, 278-279; see also People v. Jones (2009)
178 Cal.App.4th 853, 866-867 ["In Sandoval . . . our Supreme Court held it is
constitutionally appropriate to apply the amended version of the DSL in all sentencing
proceedings conducted after the effective date of the amendments, regardless of whether
the offense was committed prior to the effective date of the amendments."].)
As for Pinedaâ€Ÿs contention the trial court erred by using the same factor to impose
both an upper term on the base count and an upper term on the section 12022.5
enhancement, this is incorrect. (See People v. Moberly (2009) 176 Cal.App.4th 1191,
1198 ["the dual use of a fact or facts to aggravate both a base term and the sentence on an
enhancement is not prohibited"].) Pinedaâ€Ÿs reliance on dicta in People v. Velasquez
(2007) 152 Cal.App.4th 1503, in this context is misplaced. Pinedaâ€Ÿs reliance on People
v. Forster (1994) 29 Cal.App.4th 1746, 1758, is also misplaced because there, the issue
was use of the same sentencing factor to impose both an enhancement and an upper term
on the substantive count. The issue here is using the same factor to impose an upper term
on the substantive count and an upper term on the enhancement.
c. Firearm use enhancement on count 4 was properly imposed.
Pineda contends the firearm use enhancement (§ 12022.5) imposed in connection
with count 4 must be stricken because it was not alleged in the information. This claim is
Section 1170.1, subdivision (e) provides: "All enhancements shall be alleged in
the accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact." Due process requires that a defendant be informed of
[End Page 33]
enhancements alleged against him. (People v. Hernandez (1988) 46 Cal.3d 194, 208,
disapproved on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5.)
Consequently, if the charging document entirely fails to plead an enhancement, the
defendant receives no notice the prosecution is seeking an enhanced sentence and due
process is violated.
However, if " â€žthe information puts the defendant on notice that a sentence
enhancement will be sought, and further notifies him of the facts supporting the alleged
enhancement, modification of the judgment for a misstatement of the underlying
enhancement statute is required only where the defendant has been misled to his
prejudice.â€Ÿ " (People v. Thomas (1987) 43 Cal.3d 818, 830-831.) That is because "the
language of the pleading itself â€" irrespective of the statutory specification â€" should have
alerted the defendant he faced the increased enhancement term." (Id. at p. 831; see also
People v. Wandick (1991) 227 Cal.App.3d 918, 926-927 [where defendant notified four-
year enhancement would be sought, because he was personally armed with a gun, he
"cannot say that preparation of his defense would have been different if the information
had cited section 12022, subdivision (a) rather than (b)."].)
Here, it is clear from the information Pineda was being charged with having
personally used a firearm to commit the assaults against both Santoya and Nafanua. The
count 2 allegation arising from the same bar shooting incident, i.e., the attempted murder
of Nafanua, did charge an enhancement for personal use of a firearm. Therefore,
imposition of a firearm use enhancement on both count 3 and count 4 did not prejudice
Pineda, although the information failed to charge the count 4 enhancement, because his
defense to both counts and allegations was the same.
d. Trial court improperly imposed a full-term consecutive enhancement on
the great bodily injury enhancement attached to count 4.
Pineda contends, and the Attorney General properly concedes, that the trial court
erred by sentencing him to a full-term three-year great bodily injury enhancement on
count 4 because the punishment on that count was consecutive to the punishment on
count 3 and, therefore, the proper enhancement was only one-third the midterm. As
[End Page 34]
section 1170.1, subdivision (a) provides, in pertinent part: "The principal term shall
consist of the greatest term of imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific enhancements. The subordinate term
for each consecutive offense shall consist of one-third of the middle term of
imprisonment prescribed for each other felony conviction for which a consecutive term of
imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)
Hence, the consecutive enhancement term on count 4 should have been for only
one year. We will order the judgment modified to reflect this correction.
e. Trial court properly imposed a consecutive term on count 4.
Pineda contends the trial court improperly imposed a consecutive term on his
count 4 conviction (for assault with a semiautomatic firearm on Nafanua), either because
a consecutive term was unwarranted or because the court was unaware it had discretion to
impose a concurrent term. This claim is meritless.
Section 669 provides in pertinent part: "When a person is convicted of two or
more crimes, whether in the same proceeding or court or in different proceedings or
courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall
direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively."
"It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial courtâ€Ÿs discretion in this respect is not to be disturbed on
appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all
of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
"[I]n the absence of a clear showing that its sentencing decision was arbitrary or
irrational, a trial court should be presumed to have acted to achieve legitimate sentencing
objectives and, accordingly, its discretionary determination to impose consecutive
[End Page 35]
sentences ought not be set aside on review." (People v. Giminez (1975) 14 Cal.3d 68,
Pineda argues it is unclear why the trial court declined to impose concurrent terms
when it had discretion to do so since the two offenses "were committed on the same
occasion and arose from the same set of operative facts." There is no indication in the
record the trial court did not understand it had discretion to impose a concurrent sentence
on count 4. We agree with the Attorney General that the trial courtâ€Ÿs comments at sentencing indicated it intended to impose a very severe sentence for Pinedaâ€Ÿs egregious
crimes. The trial court noted eight or more aggravating factors and found there were no
mitigating factors. The court also noted that just a few weeks before committing the shootings, Pineda had been granted probation after pleading guilty to a felony arising out
of the Dodger Stadium incident.
Although the trial court should have given a statement of reasons for imposing this
consecutive term, no remand is necessary if it is not reasonably probable the court would
have chosen a lesser sentence. (See People v. Heishman (1988) 45 Cal.3d 147, 201
[defendant not prejudiced by judgeâ€Ÿs failure to state reasons for denying modification of
verdict imposing death penalty where "evidence that the aggravating circumstances
outweighed the mitigating circumstances was so overwhelming that there is no
reasonable possibility that a statement of reasons would have altered the trial judgeâ€Ÿs
conclusion or revealed reversible error"]; People v. May (1990) 221 Cal.App.3d 836,
839-840 ["We see no likelihood that requiring the trial court to state reasons for the
consecutive sentence would reveal reversible error, because the record clearly shows at
least one factor supporting that sentencing choice. . . . [Â¶] Likewise, there is no
reasonable possibility the sentencing court would alter its conclusion if required to state
Here, it is not reasonably probable the trial court would have imposed a lesser sentence if asked to state its reasons.
[End Page 36]
f. Pineda's sentence on count 3 did not constitute cruel and unusual
Pineda contends his sentence of 31 years on count 3 amounted to cruel and
unusual punishment under both the California and the United States Constitutions.
This claim is meritless.
The length of this sentence alone does not warrant relief. (See Harmelin v.
Michigan (1991) 501 U.S. 957
[115 L.Ed.2d 836] [mandatory LWOP sentence for
possessing more than 650 grams of cocaine did not violate Eighth Amendment].)
Pineda has not demonstrated his sentence was disproportionate to his crime or to
his individual culpability, or excessive when compared to the punishment imposed for
more serious offenses. (See People v. Dillon (1983) 34 Cal.3d 441, 477-482; In re Lynch
(1972) 8 Cal.3d 410, 423-424.) Our Supreme Court has emphasized "the considerable
burden a defendant must overcome in challenging a penalty as cruel or unusual. The
doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the
Legislature. Perhaps foremost among these are the definition of crime and the
determination of punishment. [Citations.] While these intrinsically legislative functions
are circumscribed by the constitutional limits of article I, section 17, the validity of
enactments will not be questioned â€žunless their unconstitutionality clearly, positively, and
unmistakably appears.â€Ÿ [Citations.]" (People v. Wingo (1975) 14 Cal.3d 169, 174,
In Dillon, an immature 17-year-old killed a man who had been guarding a
marijuana crop that defendant and his friends were trying to steal; as the victim advanced
on him with a shotgun, Dillon fired his .22-caliber rifle out of fear and panic. (People v.
Dillon, supra, 34 Cal.3d at p. 487.) Pineda argues his case can be reasonably compared
to Dillon because he was only 21 when the incident occurred, "there was evidence of
provocation" because Santoya humiliated Pineda in front of his friends "knowing that
[Pineda] had a razor-shaved head and face and head tattoos," and, since Pineda had been
drinking that night, "it is reasonable to assume [he] was . . . feeling the effects of the
[End Page 37]
liquor, which . . . may well have clouded his judgment." But these suggested similarities
are entirely unpersuasive and there is no comparison to be made between the two cases.
Dillon thought he was about to be killed when he fired on the victim in fear and panic.
The evidence here showed Pineda carefully walked away from the much-larger Santoya,
to insure Santoya would not disarm him, before drawing his weapon and firing from some distance away.
Pineda argues the punishment on count 3 was grossly disproportionate when
compared with the punishment for other, more serious California crimes. But the
offenses he cites are all obviously distinguishable: stabbing a victim in the leg and
inflicting great bodily injury; committing mayhem with a knife and inflicting great bodily
injury; and committing gross vehicular manslaughter.
Pinedaâ€Ÿs sentence on count 3 did not constitute cruel and unusual punishment.17
The judgment is affirmed as modified. The sentence on the count 4 great bodily
injury enhancement must be reduced from three years to one year. In all other respects,
the judgment stands. The trial court is directed to prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
KITCHING, J. ALDRICH, J.
In his opening brief, Pineda also claimed the trial court violated the rule against
multiple punishment (§ 654) by imposing enhancements for both firearm use and great
bodily injury on counts 3 and 4. However, in his reply brief, Pineda has withdrawn this
[End Page 38]