P. v. Sandoval

Filed 11/14/06 P. v. Sandoval CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
AIDA SANDOVAL,
Defendant and Appellant.
B187977
(Los Angeles County
Super. Ct. No. BA280950)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lance A. Ito, Judge. Modified in part and affirmed.
Cannon & Harris and Donna L. Harris, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle
S. Brodie and David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.

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PROCEDURAL BACKGROUND
On April 26, 2005, an information was filed charging appellant Aida
Sandoval and Yessenia Romero 1 in count 1 with the murder of Belen Dercio
(Pen. Code, 2 § 187, subd. (a)); in count 2, with the murder of Rolando Rojas
(§ 187, subd. (a)); and in count 3, with the attempted willful, deliberate, and
premeditated murder of Salvador Ramirez (§§ 187, subd. (a), 664). Under counts 1
and 2, the information alleged that appellant and Romero had committed the
murders by lying in wait (§ 190.2, subd. (a)(15)); furthermore, under each count, it
alleged that a principal involved in the offense had been armed with a firearm
(§ 12022, subd. (a)(1)).
Appellant pleaded not guilty, and denied the special circumstances and
firearm allegations. On October 19, 2005, a jury found appellant guilty of
voluntary manslaughter regarding Dercio and Rojas, and guilty of attempted
voluntary manslaughter regarding Ramirez. It also found the firearm allegations
not true. 3 The trial court imposed a total sentence of 14 years and four months in
prison, composed of the high term of 11 years for count 1, a consecutive term of
two years for count 2, and a consecutive term of one year and four months for
count 3. This appeal followed.
1 Romero and appellant were tried together. Romero is not a party to this
appeal.
2 All further statutory citations are to the Penal Code, unless otherwise
indicated.
3 The jury found Romero guilty of involuntary manslaughter regarding Dercio
and Rojas, and found the firearm allegations not true.

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FACTS
A. Prosecution Evidence
Early in the morning of February 4, 2003, appellant, Romero, and Rolando
Rojas were in the El Dorado bar in Los Angeles. Erica Arellano, who was Rojas’s
niece, lived with Rojas in a building near the El Dorado. When appellant and
Romero became involved in fights with women known as “Green Eyes” and “The
Tweaker,” Arellano heard screaming and went down to a parking lot adjoining the
El Dorado, where a crowd had formed. There she saw Rojas try to stop appellant
and Romero from fighting with Green Eyes. After the fight ended, appellant
asserted that the fight was Rojas’s fault. According to Arellano, appellant said that
“she was going to bring some gang over to fuck [Rojas] up, to kill him,” and she
referred to a gang named “Florence.”
After the fight, appellant and Romero decided to recruit someone to “jump”
Rojas. The El Dorado was closed during the day on February 4, 2003, and both
were too sore from the fight to do anything. The next day, appellant and Romero
attended a funeral for a slain member of the Florencia gang, and also visited
members of the Compton Trece (or La Tres) gang. They found several individuals
willing to help them, including Juan Negrete, Miguel Del Rio, and Maria (or Mary)
Gonzales.
On February 5, 2003, appellant and Romero, accompanied by these
individuals, returned to the El Dorado bar in a van, which they parked near the bar.
At 10:00 p.m. the same evening, Salvador Ramirez entered the El Dorado bar with
his brother, Belen Dercio. 4 Both wore baseball caps.
4 Belen’s last name is sometimes spelled, “Dircio,” in the record. Salvador
Ramirez testified that his own last name was “Dircio Ramirez,” or alternatively,
“Dircio.” For simplicity, we use “Dercio” as Belen’s last name and “Ramirez” as
Salvador’s last name.

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After 11 p.m., Rojas went to the El Dorado. From a residence window,
Arellano saw appellant or Romero (or possibly both), together with a man,
standing near a pay phone close to the front of the El Dorado. Appellant or
Romero (or possibly both) then walked toward the rear of El Dorado. While
appellant and Romero were in the El Dorado, Romero observed Rojas, and she sent
Gonzales outside to tell the others that Rojas was wearing a hat. She subsequently
noticed that other men were also wearing hats.
At approximately 11:30 p.m., Los Angeles Police Department officer Cesar
Guitron was on motorcycle patrol near the El Dorado. As he drove past the bar, he
saw appellant and Romero near the front door with some men, including Rojas.
Negrete approached the group, raised a gun, and fired several shots at Rojas,
thereby killing him. After Guitron turned his motorcycle, appellant, Romero,
Negrete, and another male fled toward the van parked down the street.
Arellano heard gunshots, and ran to the front of the El Dorado, where she
found Rojas on the ground. When Ramirez and Dercio heard the shots outside the
bar, they left through the back door. As they walked through an alley behind the
bar, Del Rio shot Dercio and then Ramirez with a rifle. Arellano, who had gone to
a pay phone near the El Dorado to call 911, saw the shooting. Dercio died of two
gunshot wounds to the head. Ramirez was hospitalized for nonfatal injuries.
Investigating officers later found a .22 caliber handgun on the tire of a car
parked near the van, and a rifle inside the van. The recovered handgun and the
bullets found in Rojas’s and Dercio’s bodies were destroyed due to a clerical error
before they could be tested.
After appellant and Romero were arrested, they made statements during
interviews by investigating officers. These interviews, which had been recorded,
were played to the jury. Both admitted that they wanted to have Rojas beaten up.

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Appellant stated that there was an agreement that no guns were to be used except in
self-defense.
It was stipulated that Negrete and Del Rio had previously been convicted of
the murders of Rojas and Dercio, and the attempted murder of Ramirez.
B. Defense Evidence
Romero, who testified on her own behalf, stated that she and appellant
worked at the El Dorado, where they were paid to talk to customers, dance with
them, and encourage them to buy drinks. According to Romero, during the fight
between appellant and The Tweaker, Arellano intervened against appellant, and
Rojas played some role in the fight. The next morning, appellant and Romero
decided to return to the El Dorado to recover money that the owner owed Romero,
and to fight with The Tweaker and Arellano if they encountered them.
Romero further testified that several individuals -- some affiliated with
gangs -- offered to accompany them, and they all drove to the El Dorado together.
Romero was not familiar with all these individuals. She knew that there were guns
in the vehicle, but she and appellant made it clear that no one was to use a gun.
According to Romero, she hoped that she could recover the money owed to her and
leave the El Dorado without any trouble. She also denied that appellant said
anything about “jumping” Rojas.
Romero further testified that the El Dorado’s owner declined to pay the
money owed her, and tried to persuade her and appellant to stay. Later, appellant
and Rojas talked at the front of the El Dorado while Romero stood nearby. One of
the men accompanying Romero and appellant then approached Rojas and told him
not to move. When Rojas reached for his pocket, the man shot him.

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Blanca Ramos, who is Romero’s mother, testified that Romero had been
working in Los Angeles to earn money so that she could move to Las Vegas, where
three of Romero’s children lived with Ramos.
Daniel Mendoza, a private investigator, testified on behalf of appellant. He
had taken measurements and photos of the area surrounding the El Dorado, and
indicated that the pay phone in front of the El Dorado was not visible from the
windows in Arellano’s residential building.
C. Rebuttal
Los Angeles Police Department Detective Jesus Linn denied that he made
any improper threats or promises to appellant or Romero when he interviewed
them after their arrest.
DISCUSSION
Appellant contends that (1) the trial court improperly admitted photographs
of Dercio’s wounds, (2) an improper sentence was imposed on count 3, and (3)
there was sentencing error under Blakely v. Washington (2004) 542 U.S. 296.
A. Admission Of Photographs
Appellant contends that the trial court abused its discretion under Evidence
Code section 352 by admitting two photographs of Dercio’s wounds. “The
admission of photographs of a victim lies within the broad discretion of the trial
court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court’s exercise of that discretion will not be disturbed on appeal
unless the probative value of the photographs clearly is outweighed by their
prejudicial effect. [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 133-
134.)

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The two photographs depict Dercio’s head wounds at the crime scene: One
displays a large entrance wound at the rear of Dercio’s head, and the other shows a
coroner’s investigator pointing into Dercio’s mouth at an exit wound. Appellant’s
counsel objected to their admission under Evidence Code section 352, contending
that their prejudicial nature clearly outweighed their relevance. He argued that
they merely confirmed the coroner’s testimony, which was not in dispute, but were
“absolutely gruesome.” The prosecutor responded that they were circumstantial
evidence of intent, and that he had advised the jury during voir dire that graphic
photographs would be introduced, not to arouse disgust or sympathy, but to
demonstrate the viciousness of the attack.
The trial court overruled the objection. Noting that the photographs, while
graphic, were “not anywhere close to the worse homicide photographs [he had]
ever seen,” the trial judge carefully articulated his reasons for denying the motion:
“The issue is, does the prejudicial value outweigh the probative value in this case.
There is circumstantial probative value from these photographs. It does tell the
manner in which this man was executed. . . . ¶ The fact that this gun was put to
this man’s head and essentially had his head blown off goes to the nature of the
case. The prosecution has the obligation to prove the malice aforethought. That’s
one of the elements of murder. And the manner in which the death is inflicted goes
to whether or not there is malice aforethought. . . . ¶ So it clearly is substantial
and I think for the prosecution’s case, it is essential for probative value.”
We discern no abuse of discretion. The trial court may properly admit
photographs displaying a victim’s wounds to establish malice or intent, even
though oral evidence describing these wounds has also been admitted. Thus, in
People v. Crittenden, supra, 9 Cal.4th at pages 131-135, the defendant
unsuccessfully objected to the admission of several photographs depicting a
victim’s partially clad body with a knife protruding from it, another victim’s body

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in blood soaked clothes, and the victims’ traumatic head injuries. The court
concluded that these photographs, though unpleasant, were properly admitted
because they were highly probative of intent, planning, and deliberation,
notwithstanding the undisputed testimony from the coroner about the victims’
wounds. (Ibid.; see also People v. Allen (1986) 42 Cal.3d 1222, 1255-1258 [no
clear abuse of discretion in admitting close-up photographs of victims’ head
wounds, given their relevance to the prosecution’s theory that the killings were
done “in an ‘execution-style fashion.’”])
Here, the photographs tend to show that Del Rio executed Dercio in a
deliberate fashion, and thus gave substantial support to the prosecution’s theory
that appellant and Romero returned to El Dorado with a premeditated plan to kill
Rojas. Furthermore, our independent review of the photographs convinces us that
they are unpleasant, but not unduly shocking or inflammatory. Accordingly, the
trial court did not err under Evidence Code section 352 in admitting them.
Appellant argues that Dercio’s wounds are irrelevant to appellant’s intent
because (1) Del Rio -- and not appellant -- shot Dercio, and (2) there is no evidence
that appellant knew of Dercio’s presence in the El Dorado or that she acted with
any intent that he be killed. We disagree. The manner in which Del Rio shot
Dercio was probative of appellant’s premeditated intent to kill Rojas. On this
matter, the prosecutor advanced the theory that appellant recruited several
individuals to surround the El Dorado with directions to kill Rojas, who was
identified to them as a man wearing a hat. Given that Dercio also wore a hat, the
wounds to his head suggesting an execution-style killing corroborated this theory. 5
5 Appellant also contends that admission of these photographs violated her
rights to due process under the California and United States Constitutions.
However, she failed to raise an objection on these grounds before the trial court.
As our Supreme Court recently explained in People v. Partida (2005) 37 Cal.4th

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In sum, the photographs were properly admitted.
B. Improper Sentence On Count 3
Appellant contends that (1) the trial court erred in determining the term of
imprisonment for her conviction for attempted voluntary manslaughter under count
3, and (2) the abstract of judgment incorrectly states that her conviction under
count 3 was for attempted murder. We agree with both contentions.
Under section 1170.1, which governs the imposition of consecutive
sentences for multiple convictions, the trial court was obliged to impose a
consecutive term of one-third of the middle term for attempted voluntary
manslaughter. (§ 1170.1, subd. (a).) Because the middle term for attempted
voluntary manslaughter is three years (§§ 193, subd. (a), 664, subd. (a)), the correct
term for count 3 is one year.
The reporter’s transcript of the sentencing hearing discloses that the trial
court imposed a consecutive sentence of 18 months on count 3. However, the
minute order from this hearing states that a consecutive term of one year and four
months was imposed on count 3. The abstract of judgment also recites a term of
one year and four months, and incorrectly identifies count 3 as a conviction for
attempted murder. Respondent concedes that the trial court imposed an improper
term on count 3, and that the abstract of judgment contains errors regarding this
count.
428, 434-439, appellant may therefore raise only a very narrow due process
contention on appeal, namely, that the erroneous admission of the photographs
under Evidence Code section 352 rendered her trial fundamentally unfair. Because
the trial court made no such error, appellant’s due process contention fails.

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C. Blakely Error
Appellant contends that there was sentencing error under Blakely, supra, 542
U.S. 296, arguing that the trial court improperly imposed the high term on count 1
and consecutive sentences on counts 2 and 3 in the absence of suitable jury
findings. This contention fails under People v. Black (2005) 35 Cal.4th 1238. 6
Appellant argues at length that Black is wrongly decided, and urges us to depart
from it. Unless and until the United States Supreme Court rules otherwise, it is
binding precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
DISPOSITION
The judgment is modified to reflect that appellant’s consecutive term of
imprisonment on count 3 for attempted voluntary manslaughter (§§ 192, subd. (a),
664) is one year. In all other respects, the judgment is affirmed. The superior
court is directed to prepare an amended abstract of judgment that reflects this
modification, and that identifies the conviction under count 3 as one for attempted
voluntary manslaughter.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
6 Respondent contends that appellant has forfeited this contention by failing to
raise it before the trial court. However, appellant was sentenced after Black issued,
and before the United States Supreme Court decided to review Black in People v.
Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom.
Cunningham v. California Feb. 21, 2006, No 05-6551, ____ U.S. ____ [126 S.Ct.
1329, 164 L.Ed.2d 47].) Because an objection under Blakely would have been
futile when appellant was sentenced, we decline to find a forfeiture. (People v.
Abbaszadeh (2003) 106 Cal.App.4th 642, 648-650.)

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MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.

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