People v. Chino CA2/6
B262732
| Cal. Ct. App. | Aug 16, 2016Background
- Three defendants (Chino, Salazar, Hernandez) in a drive-by shooting; victim L.H. was shot at while standing near an apartment building; multiple caliber casings (.40 and 9mm) and bullets recovered; two handguns found along the pursuit route.
- Hernandez admitted firing a 9mm and being a gang member; Salazar had gunshot residue; Chino initially told police he stayed in the car and, in a juvenile proceeding, admitted negligent discharge of a firearm (§ 246.3).
- L.H. initially was not located; police prepared photo lineups in February and Officer Honeycutt later located L.H. in May, who then identified Chino, Salazar, and Hernandez.
- Criminal trials: all three convicted — attempted murder and shooting at an inhabited dwelling (§ 246) with gang and firearm enhancements; Chino and Salazar appealed arguing double jeopardy/§ 654 issues; Hernandez’s appeal was a Wende brief.
- Trial court denied a motion to dismiss based on multiple prosecutions, finding police exercised due diligence in discovering evidence to support the greater charges; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy / multiple prosecutions based on Chino’s juvenile admission to negligent discharge (§ 246.3) | State: later felony prosecutions were proper because evidence to charge greater offenses was not available earlier; due diligence exception applies | Chino: juvenile admission to § 246.3 barred later prosecution for attempted murder and shooting at an inhabited dwelling | Held: No double jeopardy bar. Negligent discharge is not a lesser included of attempted murder; for the inhabited-dwelling charge the prosecution lacked necessary evidence (victim ID/multiple shooters) initially, so due-diligence exception allows later prosecution |
| Section 654 — multiple punishments for attempted murder and shooting at an inhabited dwelling | State: separate punishments allowed because the shooting endangered multiple victims (L.H. plus occupants of the apartment) | Chino & Salazar: § 654 required stay of the sentence for shooting at an inhabited dwelling because it arose from the same conduct as the attempted murder | Held: § 654 did not bar multiple punishments; multiple victims/multiple violent acts exception applies, so separate punishments are permissible |
| Adequacy of police investigation / due diligence in locating witness L.H. | State: investigators acted with ordinary diligence (early photo lineups, patrol officer carried lineups and later showed them to L.H.) | Defendants: police failed to timely locate L.H., so the juvenile proceeding should have barred later felony charges | Held: Police displayed ordinary diligence; the unavailable-evidence exception to § 654/double jeopardy applies; subsequent felony charges were proper |
Key Cases Cited
- North Carolina v. Pearce, 395 U.S. 711 (1969) (describes three double jeopardy protections)
- Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment double jeopardy applies to states)
- Kellett v. Superior Court, 63 Cal.2d 822 (1966) (multiple offenses arising from same conduct should be prosecuted together; omission may bar later prosecution)
- People v. Davis, 36 Cal.4th 510 (2005) (due-diligence exception to § 654/multiple prosecution bar)
- People v. Nelson, 51 Cal.4th 198 (2011) (negligent discharge is not a lesser included offense of attempted murder)
- People v. Ramirez, 45 Cal.4th 980 (2009) (negligent discharge can be a lesser included of shooting at an inhabited dwelling)
- People v. Oates, 32 Cal.4th 1048 (2004) (§ 654 does not apply to crimes of violence against multiple victims)
- People v. Felix, 172 Cal.App.4th 1618 (2009) (multiple victims justify separate punishments for violent offenses)