P. v. Sanchez

Filed 12/12/12 P. v. Sanchez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS SANCHEZ,
Defendant and Appellant.
B230260
(Los Angeles County
Super. Ct. No. BA342179)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Lance A. Ito, Judge. Affirmed with directions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *

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Appellant Marcos Sanchez appeals from the judgment following a trial by jury in
which he was convicted of first degree murder in violation of Penal Code section 187,
subdivision (a)1 (count 1), and conspiracy to commit murder in violation of section 182,
subdivision (a) (count 2). The jury found true the firearm allegations that a principal
personally used a firearm (§ 12022.53, subds. (b), (e)), personally and intentionally
discharged a firearm (§ 12022.53, subds. (c), (e)), and did so causing death (§ 12022.53,
subds. (d), (e)). The jury also found true the criminal street gang allegation (§ 186.22,
subd. (b)(1)). The trial court sentenced appellant to 50 years to life in state prison,
calculated as 25 years to life on count 1, plus a consecutive term of 25 years to life for the
firearm allegation that a principal personally and intentionally discharged a firearm
causing death. The court imposed the same sentence on count 2, which was stayed
pursuant to section 654. The court awarded appellant 998 days of actual custody credit
and ordered him to pay $6,382.17 to the California Victim Compensation and
Government Claims Board jointly and severally with his codefendant.
Appellant contends (1) there was insufficient evidence to support his conviction
for conspiracy to commit murder, (2) his sentence was cruel and unusual in light of his
young age of 16 years and eight days, and (3) modifications must be made to the abstract
of judgment. We agree that modifications must be made to the abstract of judgment, but
otherwise affirm the judgment.
FACTS
Prosecution Evidence
On the evening of March 13, 2008, Jorge G. and some friends were standing
outside his apartment on 80th Street in Los Angeles when Jorge saw appellant, whom he
recognized as a student at his high school. Jorge had once seen appellant fighting at
school and heard him claim to be a member of the “Southgate Bay 13” gang. Appellant
1 All statutory references shall be to the Penal Code unless otherwise noted.

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approached the group with a much shorter male, who was later identified as Pedro R.
Both appellant and Pedro were wearing hooded sweatshirts and Jorge testified they had
the hoods over their heads. Jorge heard Pedro say that he and appellant “were about to do
something” and “about [to] kill somebody.”2 Appellant was wearing a “doctor glove” on
his right hand, and had a gun in his waistband. Appellant held the gun “once in awhile.”
When a car passed by, appellant put his hand on the gun. Pedro‟s hands were concealed.
Jorge and his friends eventually went inside the apartment and heard a “shot.” They went
back outside and saw a body lying on the ground near Towne Avenue.
When the police first interviewed Jorge six months later on November 6, 2008, he
did not identify appellant or Pedro from photographic six-packs. Jorge did identify
appellant at the preliminary hearing on November 13, 2008.
Angie R., who was standing outside with Jorge on the night of the murder,
identified appellant at a field show up later that night. She also identified appellant from
a photographic six-pack, and identified him in court. Angie R. confirmed that appellant
was wearing a plastic “doctor‟s” glove. She admitted testifying at the preliminary
hearing that she saw appellant and Pedro walking up and down the street, looking at the
victim‟s house. While she could not recall having testified at the preliminary hearing that
appellant said he was “waiting for the other guy to come out so he could shoot him,” in
her recorded police interview played for the jury she stated that appellant “started talking
to me, you know, about that he was going to shoot him . . . .”
Crystal C., who was also standing outside on the night of the murder, identified
appellant in court, and said she had “seen him around” and at school. Her cousin Danny
and appellant were friends, and she and Pedro were friends. On the night of the murder,
Crystal C. saw appellant and Pedro walking on 80th Street. She identified appellant and
Pedro in photographic six-packs shown to her by the police. With respect to appellant‟s
photograph, Crystal C. wrote, “I seen him on the day they kill that man. That he was
taking a log [sic] time to come outside to shot [sic] him.” While she testified at trial that
2 On cross-examination, Jorge testified Pedro said he was “going to blast someone.”

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what she had written was not true, she admitted telling the police that appellant said he
was going to shoot the victim, “that guy from the corner,” and it was taking a long time
for him to come outside.
The victim, 18-year-old Ricardo Rivera, was a member of the Kansas Street gang.
On the night of the murder, his sister Kelley Rivera was standing outside her house with a
friend and Ricardo. She saw appellant and Pedro passing in front of her house “over and
over.” She identified appellant in court and testified that she had seen him the day before
the murder. She recognized Pedro because he had fought with her brother two days
earlier. At some point, appellant and Pedro stopped walking and stood next to a tree near
the corner of the street. Ricardo was leaning against a brick wall when “out of nowhere,”
he got shot in the head. Kelley identified appellant in a field show up later that night and
was “sure” it was him. While she could not identify appellant in a photographic six-pack
shown to her some time after the murder, she did identify appellant at the preliminary
hearing. She also identified Pedro from a photographic six-pack.
Ricardo‟s autopsy results showed that he suffered a “through and through”
gunshot to his head. According to the medical examiner, a bullet shot from a short
distance has a better chance of exiting the victim‟s body. The medical examiner opined
that a .357 Magnum could propel a bullet through someone‟s head if the range of fire was
not far away.
The day after the murder the police searched Pedro‟s house and recovered a
.357-caliber revolver in the bedroom, a yellow notebook with gang writing on it, and a
latex glove in the waste basket. The gun had a six-round capacity, and had five live
rounds and one expended round. Appellant lived next door to Pedro. His house was also
searched and the police recovered a shoebox with gang writing on it and numerous papers
with writing consistent with the Southgate Bay 13 gang.
Los Angeles Police Department Detective Eric Crosson, who responded to the
crime scene, was at the field show up involving Angie R. and confirmed that she
identified appellant. Detective Crosson visited the crime scene numerous times.

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Approximately four days after the murder, he found a latex glove on the sidewalk of the
7900 block of Towne Avenue. The glove he found was smaller than the one found in
Pedro‟s bedroom.
Detective Crosson taped some of the interviews he conducted during his
investigation of the shooting. In general, he did not inform witnesses they were being
taped. When he interviewed Crystal C., she stated “multiple times” that appellant said
what she had written, i.e., that it was taking the victim a long time to come outside to
shoot him.
When appellant was arrested, he did not have any tattoos on his hand. He later
had “Bay” tattooed on his hand.
Detective Derek O‟Malley of the Southgate Police Department testified as a gang
expert. He was familiar with the Southgate Bay 13 gang, which had approximately
14 members and was a rival of the Kansas Street gang. Detective O‟Malley knew Pedro,
whose moniker was “Demon.” Pedro had admitted to the detective that he was a member
of the Southgate Bay 13 gang. The notebook recovered from Pedro‟s house was filled
with gang writing and gang monikers. According to Detective O‟Malley, “Bay” stands
for “Bad Ass Youngsters,” or “Barrio Ardmore Youngsters.” Detective O‟Malley opined
that Pedro was an active member of the Southgate Bay 13 gang, and that appellant was
also a member of the gang. Detective O‟Malley testified that the “y” in the “Bay” tattoo
on appellant‟s hand was written in a manner associated with the gang. According to
Detective O‟Malley, it was not uncommon for a gang member to let other people know
that he was planning to commit a crime. Based on a hypothetical using the facts of the
case, Detective O‟Malley opined that Ricardo‟s murder was committed for the benefit of,
at the direction of, and in association with a criminal street gang.

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Defense Case
Mitchell Eisen, who has a PhD in psychology and is an expert on eyewitness
memory, testified about the limitations of human memory and the factors that tend to lead
to inaccurate witness identification and testimony.
Marie Rodriguez, a defense investigator, interviewed Crystal C. on April 29, 2009.
Crystal C. told her that she could not identify appellant because he had been wearing a
hooded sweatshirt, and that Jorge informed her of appellant‟s identity.
According to a DNA expert, the gun recovered by the police contained the DNA
of at least four different people, and the presence of appellant‟s and Pedro‟s DNA was
inconclusive. The latex glove found at Pedro‟s house contained DNA from at least three
sources, including appellant and Pedro. And the latex glove found near the crime scene
did not contain DNA from appellant or Pedro.
Stipulations
The parties entered into several stipulations, including that if Brenda German had
been called as a witness she would have testified to the following: “Brenda was present
on March 13, 2008, in the driveway where Ricardo Rivera was shot. Prior to the
shooting, Brenda saw two males walking back and forth on 80th Street. One male was
taller than the other. The taller one was wearing a hooded sweatshirt and kept the hood
pulled up, preventing Brenda from seeing his face. [¶] The two males went to the corner
of Towne Avenue and 80th Street and crouched down. It looked like the shorter male
was trying to aim. Brenda and Ricardo went inside the house for about 30 minutes, and
then went back outside for about 30 minutes, at which time he was shot. [¶] Ricardo was
leaning against the wall when he was shot. Brenda was on his left, and Kelley Rivera
was in front of him. Brenda heard a single gunshot, and Ricardo fell to the ground.
Brenda did not see who shot or where the shot came from.”

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DISCUSSION
I. Substantial Evidence Supports Appellant’s Conviction for Conspiracy to
Commit Murder.
Appellant contends that his conviction for conspiracy to commit murder must be
reversed because there was insufficient evidence to prove that he had agreed with anyone
to commit murder. We disagree.
When determining whether the evidence is sufficient to sustain a conviction, “our
role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We
review the entire record in the light most favorable to the judgment to determine whether
a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.)
We presume in support of the judgment the existence of every fact that a trier of fact
could reasonably deduce from the evidence. This standard applies whether direct or
circumstantial evidence is involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
“[I]t is the exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.”
(People v. Maury (2003) 30 Cal.4th 342, 403.) Even when there is a significant amount
of countervailing evidence, the testimony of a single witness can be sufficient to uphold a
conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) So long as the
circumstances reasonably justify the trier of fact‟s finding, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant reversal of the judgment. (People v. Albillar (2010) 51 Cal.4th 47, 60;
People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears
that “„upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].‟ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A conspiracy is an agreement by two or more persons to commit an offense with
the specific intent to commit the elements of the offense, coupled with an overt act by
one or more of the conspirators in furtherance of the conspiracy. (§§ 182, subd. (a)(1),
184; People v. Jurado (2006) 38 Cal.4th 72, 130; People v. Russo (2001) 25 Cal.4th

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1124, 1131.) “To prove an agreement, it is not necessary to establish the parties met and
expressly agreed” to commit the target offense. (People v. Vu (2006) 143 Cal.App.4th
1009, 1025.) Rather, “„a criminal conspiracy may be shown by direct or circumstantial
evidence that the parties positively or tacitly came to a mutual understanding to
accomplish the act and unlawful design.‟” (Ibid., quoting People v. Brown (1969) 272
Cal.App.2d 623, 628.) Thus, “„a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy. [Citations.]‟” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135;
People v. Herrera (2000) 83 Cal.App.4th 46, 64.)
We reject appellant‟s argument that there was insufficient evidence to show that
he agreed with Pedro to commit murder. The evidence established that on the night of
the murder appellant and Pedro were seen together, walking back and forth in front of
Ricardo‟s house several times. Pedro had been in a fight with Ricardo a few days prior to
the murder. Appellant and Pedro were members of the same gang, and Ricardo was a
member of a rival gang. Appellant and Pedro talked with the group of people standing
outside on 80th Street before the murder, and either appellant or Pedro told them they
were planning to shoot someone and that it was taking this person a long time to come
outside. Appellant was wearing a latex glove on his right hand, and kept touching a gun
that was in his waistband. At some point, appellant and Pedro walked to the corner of
Towne Avenue and 80th Street and crouched down. It appeared that Pedro was trying to
take aim. The police recovered a .357-caliber gun and a latex glove from Pedro‟s house.
One expended cartridge was found in the gun. Ricardo was shot by a single bullet to the
head that may have been fired with a .357 Magnum. Moreover, in the gang expert‟s
opinion, the crime was gang-related. Based on these circumstances, the jury could easily
infer that appellant and Pedro had a mutual agreement and intent to kill Ricardo.
Accordingly, appellant‟s conviction for conspiracy to commit murder was supported by
substantial evidence.

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II. Appellant’s Sentence is Not Cruel and Unusual
Appellant, who was 16 years and eight days at the time of the shooting, argues that
his sentence of 50 years to life constitutes cruel and unusual punishment in violation of
the federal and state Constitutions. Specifically, he argues that “his sentence of 50 years
to life coupled with the fact that, had he been just 8 days younger, his case could not
have been directly filed in adult court, and he may well have been treated as a juvenile,
shocks the conscience, is grossly disproportionate to his crime, and violated the Eighth
Amendment to the United States Constitution and the prohibition against cruel or
unusual punishment under article I, section 17 of the California Constitution.” We
disagree.
A sentence is cruel or unusual under California law if it is so disproportionate to
the crime as to shock the conscience and offend fundamental notions of dignity. (In re
Lynch (1972) 8 Cal.3d 410, 424; People v. Norman (2003) 109 Cal.App.4th 221, 230.)
Similarly, a sentence constitutes cruel and unusual punishment under the Eighth
Amendment if it is grossly disproportionate to the severity of the crime. (Ewing v.
California (2003) 538 U.S. 11, 20; Rummel v. Estelle (1980) 445 U.S. 263, 271.) Under
both standards, the court examines the nature of the offense and the defendant, the
punishment for more serious offenses within the jurisdiction, and the punishment for
similar offenses in other jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 290–291;
In re Lynch, supra, at pp. 425, 431, 436.) Any one of these three factors can be sufficient
to demonstrate that a particular punishment is cruel and unusual. (People v. Dillon
(1983) 34 Cal.3d 441, 487, fn. 38.) Here, appellant discusses only the first prong.
In arguing that his sentence is disproportionate to his culpability, appellant
primarily relies on People v. Mendez (2010) 188 Cal.App.4th 47 (Mendez), in which this
court held that a sentence of 84 years to life imposed on a defendant who was 16 when he
committed several nonhomicide crimes was unconstitutional as constituting a de facto
sentence of life without parole (LWOP), which provided no meaningful opportunity for
release. In reaching our conclusion, we relied on the United States Supreme Court‟s

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recent decision in Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011, 176 L.Ed.2d
825] (Graham), in which a divided Court held that a sentence of LWOP for any juvenile
offender who did not commit a homicide was categorically cruel and unusual under the
Eighth Amendment. But, as the People note, appellant‟s reliance on Mendez and Graham
is misplaced because, unlike the defendants in those cases, appellant committed
homicide.3
We are satisfied that under the circumstances here, appellant‟s murder sentence
was justified. The evidence showed that prior to the murder, appellant and fellow gang
member Pedro bragged to some people in the neighborhood that they were going to
shoot someone, and appellant was holding a gun while wearing a latex glove on his
hand. Appellant and Pedro laid in wait, walking back and forth in front of Ricardo‟s
house until he came out. They crouched down and either appellant or Pedro shot
Ricardo point blank in the head with one bullet while Ricardo was standing with his
sister and a friend. Appellant‟s actions demonstrated a complete lack of mercy and
disregard for human life, and a lack of concern whether others might also be shot.
Appellant attempts to minimize the seriousness of his conduct by claiming there was no
evidence or jury finding that he was the actual shooter. He also points to his limited
criminal record, which consists of a single offense of vehicle theft committed when he
was 15 years old for which he received home probation and jurisdiction was terminated
ten months later. Based on the facts here, we find that appellant‟s youth and minor
criminal record were “substantially outweighed by the seriousness of the crime[s] and
the circumstances surrounding [their] commission . . . .” (People v. Gonzales (2001) 87
Cal.App.4th 1, 17.)
As appellant acknowledges, successful challenges to sentences on the grounds of
cruel and unusual punishment are rare. (In re Nuñez (2009) 173 Cal.App.4th 709, 735;
3 On August 16, 2012, our Supreme Court concluded that Graham applies to
juvenile nonhomicide offenders who receive a term-of-years sentence that results in the
functional equivalent of a life sentence without the possibility of parole. (People v.
Caballero, 2012 Cal. LEXIS 7664, *10.)

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Rummel v. Estelle, supra, 445 U.S. at p. 272.) Indeed, as the People note, appellant‟s
sentence compares favorably with those in other cases rejecting cruel and unusual
punishment claims involving serious crimes committed by young defendants with limited
prior criminal records. (See, e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282–
285 [upholding LWOP sentence for 17-year-old convicted of two counts of first degree
murder]; People v. Em (2009) 171 Cal.App.4th 964, 972–977 [upholding sentence of 50
years to life for 15-year-old gang member who committed murder during a robbery and
whose prior record was not extensive]; People v. Demirdjian (2006) 144 Cal.App.4th 10,
14–16 [15-year-old‟s sentence of two consecutive terms of 25 years to life for two special
circumstance murders did not violate state or federal Constitutions]; People v. Villegas
(2001) 92 Cal.App.4th 1217, 1230–1231 [upholding sentence of 40 years to life for 17-
year-old gang member who committed attempted murder with a firearm]; People v.
Gonzales, supra, 87 Cal.App.4th at p. 17 [upholding sentence of 50 years to life for 14-
year-old gang member who committed murder].) This is not one of the rare cases in
which the sentence imposed should be reduced as cruel and unusual.
III. Appellant Should be Awarded One Additional Day of Actual Custody Credit
Appellant contends, and the People concede, that he is entitled to one additional
day of actual custody credit.
Pursuant to section 2900.5, subdivision (a), a defendant convicted of a felony is
entitled to credit against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5,
subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Generally, an appellant may
not appeal an error in the calculation of presentence custody credit unless the claim is
first presented in the trial court, which did not occur here. (§ 1237.1.) However, the
Court of Appeal may address a presentence custody credit issue if other claims are also
raised on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100–1101; People v.
Acosta (1996) 48 Cal.App.4th 411, 420–421.)

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As a general rule, the time credited includes the date of arrest, the date of
sentencing, and every day in between. (People v. Smith, supra, 211 Cal.App.3d at p. 526
[“Since section 2900.5 speaks in terms of „days‟ instead of „hours,‟ it is presumed the
Legislature intended to treat any partial day as a whole day”].) The probation report
states that appellant was arrested on March 17, 2008 and he was sentenced on
December 10, 2010. This time span is 999 days. Because the trial court only awarded
appellant 998 days of custody credit, the abstract of judgment must be amended to reflect
999 days of actual custody credit.
IV. The Abstract of Judgment Must be Corrected Regarding the Payment of
Restitution
Appellant contends, and the People concede, that the abstract of judgment must be
corrected because it does not reflect that he and Pedro are jointly and severally liable to
pay $6,382.17 in restitution, and it improperly states that such restitution is to be paid to
the “victim(s),” rather than to the State Victim Compensation Board.
At the sentencing hearing, the trial court ordered that appellant and Pedro are
jointly and severally liable to pay restitution, and that such restitution should be paid to
the “Victim Compensation Government Claims Board.” Because the oral
pronouncement of judgment by the sentencing judge is the judicial act which constitutes
the rendition of judgment, it controls over any conflicting written court documents.
(People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8,
13; People v. Hong (1998) 64 Cal.App.4th 1071, 1075.) If an abstract of judgment fails
to reflect the judgment pronounced by the trial court, the error is clerical and the abstract
can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001)
26 Cal.4th 181, 185; People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3; People v.
Jack (1989) 213 Cal.App.3d 913, 915; People v. Rowland (1988) 206 Cal.App.3d 119,
123; People v. Mesa, supra, at p. 471; In re Candelario (1970) 3 Cal.3d 702, 705.)
Accordingly, the abstract of judgment must be corrected here.

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DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect 999 days of
actual custody credit and to reflect that appellant is jointly and severally liable for
$6,382.17 in restitution to be paid to the California Victim Compensation and
Government Claims Board, and to forward the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST

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