P. v. Celis

Filed 11/14/06 P. v. Celis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMUNDO SANCHEZ CELIS,
Defendant and Appellant.
2d Crim. No. B186270
(Super. Ct. No. 2003004496)
(Ventura County)
Raymundo Sanchez Celis appeals from the judgment entered after a jury
convicted him of first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 with
findings that he was armed (§ 12022.5, subd. (a)(1)) and personally and intentionally
discharged a firearm (§12022.53, subd. (d)). On counts 2 and 3, the jury convicted
appellant of transportation of cocaine and cocaine base (Health & Saf. Code, § 11352,
subd. (a)) and returned a true finding on a firearm enhancement (§ 12022, subd. (c)).
Appellant argues that the trial court erred in staying the section 12022.5
firearm enhancement on count one for murder. We agree and strike the section
12022.5 enhancement. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713,
fn. 5.) The judgment, as modified, is affirmed. The total aggregate sentence remains
the same: 58 years to life.
1 Unless otherwise stated, all statutory references are to the Penal Code.

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Facts
This is a parking lot rage case in which appellant shot and killed Miguel
Solis after appellant was asked to move his car.
On January 18, 2003, Alejandro Solis (Alejandro) tried to park his ice
cream truck at an Oxnard warehouse but appellant's Chevrolet Beretta was blocking
the way. Alejandro asked appellant to move the car. Appellant threw a punch at
Alejandro and a fight ensued. Alejandro's brother, Miguel Solis (Miguel), tried to
break up the fight and was knocked to the ground.
Appellant said "let's stop this" and retrieved a handgun from his car.
Pointing the handgun at Miguel, appellant walked towards him and shot him.
Alejandro heard appellant say "hit me now" as he fired at Miguel. Miguel died from a
.25 caliber gunshot wound to the chest.
Appellant sped off in the Beretta, hitting an ice cream truck and a trash
dumpster. After appellant abandoned the Beretta, he fled to Mexico.
That evening, the police found the Beretta parked about a mile from the
shooting. A drop of appellant's blood was on the steering wheel and two rounds of .25
caliber ammunition were in the car. The police found .93 grams of cocaine in the
center console. A shooting target poster, cash, 53.8 grams of packaged cocaine base,
and 54.6 grams of packaged cocaine powder were in the trunk. The cocaine had a
street value of $4,000. Two photo identification cards were in the car bearing
appellant's photo and alias: Joel Perez Betancourt.
Appellant was extradited from Mexico on March 4, 2004.
Appellant testified that Alejandro started the fight and that Miguel hit
him with a pipe, seriously injuring his head and causing him to bleed. Appellant said
that he tried to scare them with the handgun and that it accidentally fired. He claimed
that he had never fired a gun before and denied that the shooting target in the car was
his. Appellant admitted that he was selling drugs to support his family and claimed
that a stranger loaned him the narcotics found in the car.

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In rebuttal, a detective testified that no pipe or spattered blood was found
in the parking lot. A narcotics expert opined that it was implausible that a stranger
would loan appellant drugs to sell.
Unavailable Witness
Appellant argues the trial court erred in not admitting Rita Alvarado's
preliminary hearing testimony. Alvarado testified at the preliminary hearing that she
saw two men punch and choke appellant. Alvarado heard a gunshot and saw appellant
leave in the car.
Appellant argued that Alvarado could not be located and was an
unavailable witness. Defense counsel hired an investigator after the trial started but
could not locate her. The investigator checked Alvarado's last known address, a bar
frequented by her husband, and a store where Alvarado bought money orders.
A secretary who worked for defense counsel declared that Alvarado had
complained about threats from the victim's daughter. Alvarado allegedly told the
secretary that investigators in the district attorney's office had offered her money to
keep quiet and had threatened deportation. Defense counsel conceded that "[h]er idea .
. . that the investigators are offering her money -- of course it's ridiculous -- any more
than they threatened to deport her . . . ."
The trial court found that appellant had not exercised due diligence in
locating Alvarado and excluded the preliminary hearing testimony. After the case was
submitted to the jury, counsel stated that Alvarado was willing to testify. The trial
court denied the motion to reopen.
Evidence Code section 1291, subdivision (a) provides that the former
testimony of a witness is not admissible unless the witness is unavailable to testify. A
witness is unavailable when he or she is "absent from the hearing and the proponent of
his or her statement has exercised reasonable diligence but has been unable to procure
his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(5).)
Whether a party exercised reasonable diligence to locate a missing
witness is subject to independent review. (People v. Cromer (2001) 24 Cal.4th 889,

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903-904.) "[T]he term 'due diligence' is 'incapable of a mechanical definition,' but it
'connotes persevering application, untiring efforts in good earnest, efforts of a
substantial character.' [Citations]. Relevant considerations include ' " whether the
search was timely begun" ' [citation], the importance of the witness's testimony
[citation], and whether leads were competently explored [citation]." (Id., at p. 904; see
also People v. Sanders (1995) 11 Cal.4th 475, 523.)
Alvarado told defense counsel that she had been threatened and did not
want to be involved. Despite this information, counsel did not subpoena Alvarado or
look for her until Alvarado's phone number was disconnected. The trial court found
that efforts to locate Alvarado were unreasonably delayed. We have reviewed the
record and concur. Appellant did not exercise due diligence in locating and producing
Alvarado as a trial witness.
Appellant's reliance on People v. Lopez (1998) 64 Cal.App.4th 1122 is
misplaced. There, a battery victim testified at the preliminary hearing and was
subpoenaed a month before trial. The prosecutor had no reason to believe the victim
would not appear and testify. On the second day of trial, the prosecutor learned that
the victim was in Las Vegas, spoke to the victim's family, and was unable to produce
the victim at trial. We concluded that the prosecution had exercised reasonable
diligence and that the trial court did not err in admitting the victim's preliminary
hearing testimony as an unavailable witness. (Id., at p. 1128.)
Unlike People v. Lopez, supra, appellant did not subpoena Alvarado or
maintain contact with her, even after she said that she had been threatened and did not
want to testify. Following the July 28, 2004 preliminary hearing, appellant had a year
to subpoena Alvarado. The trial court found that a witness like Alvarado who comes
"forward with that sort of information in the first instance is a witness who is not to be
trusted to come in voluntarily when really needed, somebody who needed to be
monitored very closely and kept under subpoena every time the case was continued to
any date certain . . . ."

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More telling was the short time it took to locate Alvarado after the case
was submitted to the jury. There was no evidence that Alvarado was hiding or had
moved out of the area. "The burden of proof on the issue of witness unavailability
rests with the proponent of the evidence, and the showing must be made by competent
evidence. [Citations.]" (People v. Strizinger (1983) 34 Cal.3d 505, 516.)
Appellant's assertion that he was denied the constitutional right to
present a an effective defense is without merit. The failure to subpoena or produce
Alvarado was appellant's doing. As a general matter, the application of state rules of
evidence do not infringe on the accused's right to present a defense. (Rock v. Arkansas
(1987) 483 U.S. 44, 55 [97 L.Ed.2d 37, 49]; Chambers v. Mississippi (1973) 410 U.S.
284, 302 [35 L.Ed.2d 297, 312-313].) "[F]oundational prerequisites are fundamental
to any exception to the hearsay rule. [Citations.] As a general proposition criminal
defendants are not entitled to any deference in the application of these constraints but,
like the prosecution, 'must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.' [Citation.]" (People v. Hawthorne (1992) 4 Cal.4th 43, 57.)
The alleged error, if any in excluding Alvarado's preliminary hearing
testimony was harmless beyond a reasonable doubt. Alvarado saw part of the fight
and heard a gunshot, but never reported it to the police. She did not see the handgun
or know if anyone was shot. Alvarado claimed she was there to ask appellant "for
work."
The trial court found Alvarado's preliminary hearing testimony
"dubious," and "extremely vague." The physical evidence and the testimony of those
who actually saw the shooting was overwhelming. After appellant knocked the victim
to the ground, appellant retrieved the handgun from his car, pointed it at the victim
with an out-stretched arm, took two or three steps towards the victim, and shot the
victim in the chest. Just before he fired the handgun, appellant said "hit me now." The
evidence clearly showed that the shooting was not in self-defense.

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Motion To Reopen
Appellant asserts that the trial court violated his due process right to a
fair trial in denying his motion to reopen. Appellant waived the constitutional claim
by not objecting on that ground. (See e.g., People v. Sanders, supra, 11 Cal.4th at p.
526, fn. 17.) The trial court found that Alvarado's sudden availability as a witness
validated the court's prior "finding that the defense was negligent and exercised
insufficient diligence to keep [the] witness under subpoena or even to try to locate
her."
The trial court reasonably concluded that it was too late in the
proceedings to reopen the trial, that appellant was not diligent in producing Alvarado,
that Alvarado was not an essential witness, and that her testimony was of marginal
value. (See e.g., People v. Jones (2003) 30 Cal.4th 1084, 1110.) In the words of the
trial court, Alvarado's preliminary hearing testimony was "very, very sketchy " and
"of doubtful help to the defense. . ." The record supports the finding that if appellant
were permitted to reopen, it would have confused the jury, put undue emphasis on
Alvarado's testimony, and prejudiced the prosecution.
The denial of the motion to reopen was not an abuse of discretion. For
the same reasons, we conclude that any constitutional error and was harmless beyond a
reasonable doubt. (See e.g., People v. Cuccia (2002) 97 Cal.App.4th 785, 791-792.)
Motion to Sever
Appellant contends that the trial court abused its discretion in denying
his motion to sever the drug charges. (§ 954.) Appellant argues that the murder
charge was highly inflammatory and prejudiced his right to a fair trial on the drug
counts. The trial court reasonably concluded that the narcotics were connected to the
murder and highly probative. "Joinder is generally proper when the offenses would be
cross-admissible in separate trials, since an inference of prejudice is thus dispelled.
[Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 126.)
The prosecution theorized that narcotics may have been a motive for not
moving the car, if not the fist fight. In opposing the motion to sever, the prosecutor

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argued that two baggies of cocaine were on the car's center console which "leads to an
inference that a deal was imminent." The prosecutor further argued that the narcotics
showed consciousness of guilt by flight. After the shooting, appellant fled and
abandoned the car with the thousands of dollars of narcotics in it.
Appellant makes no showing that a weak case was joined with a strong
case to produce a spillover effect that unfairly strengthened a weak narcotics case.
(People v. Sully (1991) 53 Cal.3d 1195, 1222.) The shooting and the narcotics were
interconnected by the car. Appellant blocked the parking space with his car, refused to
move it, instigated a fist fight, and fatally shot the victim. The car was used to
transport both the handgun and the narcotics. After the shooting, appellant fled in the
car and abandoned it along with identification cards, the .25 caliber ammunition, the
narcotics, and cash. It was strong evidence of guilt. At trial, appellant admitted that
he was selling narcotics to support his family.
The argument that joinder of the murder count with the drug charges was
inflammatory and denied appellant a fair trial is without merit. (People v. Davis
(1995) 10 Cal.4th 463, 508 [burden on defendant to show substantial danger of
prejudice requiring that charges be separately tried].) A due process violation only
occurs if the
" 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a
denial of due process.' [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
Section 12022.5 Enhancement
On count one for murder, the trial court sentenced appellant to 25 years
to life plus a consecutive term of 25 years to life for personally and intentionally
discharging a firearm. (§ 12022.53, subd. (d).) The trial court also imposed and
stayed a section 12022.5 four-year firearm enhancement.
Appellant argues, and the People agree, that the section 12022.5 firearm
enhancement should be stricken. The section 12022.53 enhancement is the greater
enhancement, i.e., 25 years to life. Multiple firearm enhancements are not permitted.
(§ 12022.53, subd. (f); People v. Bracamonte, supra,106 Cal.App.4th at p. 711.) We

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accordingly modify the sentence to strike the section 12022.5 firearm enhancement on
the murder conviction.
Consecutive Sentence
On count 2 for transportation of cocaine and use of a firearm (§ 12022,
subd. (c)), appellant was sentenced to eight years state prison, to be served consecutive
to the 50-years-to-life sentence on the murder count. Appellant argues that the eight-
year consecutive sentence was based on sentencing factors that were not tried by a jury
in violation of his Sixth and Fourteenth Amendment right to jury trial. (Blakely v.
Washington (2004) 542 U.S. 296 [124 S.Ct. 2531].) Appellant did not object at the
sentencing hearing and is precluded from arguing the issue on appeal. (People v. Hill
(2005) 131 Cal.App.4th 1089, 1103.)
Waiver aside, our Supreme Court in People v. Black (2005) 35 Cal.4th
1238 held that "the judicial fact finding that occurs when a judge exercises discretion
to impose . . . consecutive terms under California law does not implicate a defendant's
Sixth Amendment right to a jury trial." (Id., at p. 1244.) People v. Black controls.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Imposition of
the upper term does not violate appellant's constitutional right to jury trial or due
process. 2
We modify the judgment to strike the section 12022.5 firearm
enhancement erroneously imposed on count one for murder. (People v. Bracamonte,
supra, 106 Cal.App.4th at pp. 712-713, fn. 5.) The aggregate sentence remains the
same: 58 years to life. The trial court is directed to issue an amended abstract of
judgment reflecting the modification and to send a certified copy to the Department of
Corrections.
2 The United States Supreme Court has granted certiorari in Cunningham v. California
(Feb. 21, 2006, No. 05-6551), ___ U.S. ___ [126 S.Ct. 1329] on the effect of Blakely
v. Washington, supra, 542 U.S. 796 and United States v. Booker (2005) 543 U.S. 220,
on California's determinate sentencing law.

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The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.

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Ronald R. Purnell, Judge
Superior Court County of Los Angeles
______________________________
Nancy L. Tetreault, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E.
Winters, Supervising Deputy Attorney General, Richard T. Breen, Deputy Attorney
General, for Plaintiff and Respondent.

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