People v. Vallejo CA4/2

California Court of Appeal

People v. Vallejo CA4/2

California Court of Appeal·Decided February 18, 2021·No. E074099·Unpublished

Opinion

Filed 2/18/21 P. v. Vallejo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E074099 v. (Super.Ct.No. RIF103887) FRANCISCO JAVIER VALLEJO et al., OPINION Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.

Affirmed.

Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal for Defendant and Appellant Francisco Vallejo.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Salomon Vallejo.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Lynne McGinnis and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

In 2003, defendants Francisco and Salomon Vallejo were convicted of two counts of attempted murder (Pen. Code, §§ 664 & 187, subd. (a))1 with premeditation, and one count of discharging a firearm from a vehicle (§ 12034, subd. (c)), in addition to true findings on allegations that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)), various gun discharge enhancements (§ 12022.53, subds. (c), (d), & (e)(1)) and a hate crime enhancement (§ 422.75, subd. (c)). They were each sentenced to an aggregate term of 50 years to life, and their convictions were affirmed on direct appeal. In 2019, following enactment of section 1170.95 pursuant to passage of Senate Bill No. 1437, each defendant filed a petition seeking resentencing. Both petitions were dismissed and both defendants appeal.

On appeal, defendants argue (1) the trial court’s determination that section 1170.95 applies only to murder convictions was error, and (2) the exclusion of attempted murder from applicability of section 1170.95 violates equal protection principles. We affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.

BACKGROUND

We summarize the facts of the incidents that led to the charges of which the two defendants were convicted from a portion of our prior opinion in the direct appeal.2 (People v. Vallejo, et al., (June 13, 2005, E034555) [nonpub. opn.] pp. 4-9.)

“A. Events Preceding the Charged Crimes “The parties stipulated that at 4:20 p.m. on May 22, 2002, five gunshots were fired at the intersection of Ottawa and Enterprise in the City of Riverside. A witness saw a red older model small vehicle with a spoiler on the trunk chasing a Ford Explorer. A Hispanic male appearing to be in his 20’s with a thin build was driving the red vehicle. An African-American male was driving the Explorer. Five 9-millimeter shell casings were found at the scene.

“At approximately 3:40 a.m. on May 26, 2002, 21-year-old Antwone Shaw was in his car delivering newspapers at Ottawa and Fourteenth Streets when he noticed an older black Acura Integra travel past him. Shaw spotted the Acura a second time on Ohio Street, located one block from Enterprise. As Shaw continued his route, he stopped at a stop sign at the intersection of Illinois and Ottawa. There, he saw the Acura a third time. The car was occupied by three individuals; the driver was a thin Hispanic male. The driver made a U-turn and pulled behind Shaw’s car. Several gunshots rang out. One bullet penetrated Shaw’s car and entered and exited Shaw’s left calf.

2 We omit additional facts in the interest of brevity.

“Ten 9-millimeter shell casings and one .45-caliber shell casing were found at the scene. The Acura was registered to Francisco, who was in county jail from May 24 to 29, 2002.

“At approximately 9:00 or 10:00 p.m. on May 30, 2002, a carload of individuals belonging to an African-American-based criminal street gang known as the 1200 Blocc Crips attempted to shoot a Hispanic male. Instead, they shot a four or five-year-old boy.

“At approximately 6:42 a.m. on May 31, 2002, a police officer was dispatched to the home of Lidia Vallejo, the mother of defendants Francisco and Salomon. Mrs. Vallejo reported that at approximately 1:00 a.m. she heard several gunshots, and then noticed that Francisco’s black Acura Integra had been “shot up.” There were four bullet holes on the passenger side of the Acura and one bullet hole through the front windshield. Mrs. Vallejo said that Francisco and Salomon were members of East Side Riva (ESR), a criminal street gang, and that she had not seen either of them for approximately three days.

“B. The Attempted Murder of Jason Green (Count 1)

“At approximately 8:00 a.m. on May 31, 2002, Jason Green, an African-

American, was walking along Franklin Street in Riverside, headed to his uncle’s house. Green was a former associate of the 1200 Blocc Crips but had never been a member of the gang. As Green walked past the intersection of Third and Franklin, he saw a red Nissan pickup truck, occupied by three Hispanic males, approaching from the opposite direction on Franklin Street.

“The Nissan pulled into a driveway directly across the street from Green’s uncle’s house. Two of the men got out of the Nissan from its passenger side, and walked across the street toward Green. The driver of the Nissan started backing it out of the driveway toward the middle of the street. When the two men reached the middle of the street and were approximately 10 to 15 feet from Green, one of the men said, “Fuck niggers” and “Fuck 1200 Blocc.” Green continued to walk toward his uncle’s house. The other man drew a .25-caliber handgun from his right pants pocket and fired five shots at Green. The third bullet grazed the side of Green’s head. The rest of the bullets missed him.

“Green ran to his uncle’s house and called 911. The two men got back in the Nissan, and the driver of the Nissan drove it down Franklin and turned onto Third toward Interstate 91. Police officers arrived at Green’s uncle’s house approximately three minutes after the shooting. Green was taken to a hospital and was released after three to four hours.

“During the afternoon of May 31, officers transported Green to two separate infield showups, where he identified Sanchez as the man who shot at him and Francisco as the man who uttered the racial slurs. Green was then taken to a third location, where he identified a red Nissan truck, registered to Francisco, as the vehicle involved in the shooting. Salomon was not present at either infield showup.

“At trial in August 2003, approximately 16 months after the shooting, Green again identified Sanchez as the man who shot him, but identified Salomon, not Francisco, as the man who uttered the racial slurs. On the day of the shooting, Green told an officer

that he did not get a good look at the driver. At trial, Green testified that Francisco was the driver but said he was not certain.

“One witness testified that he saw ‘the driver’ and another man get in the Nissan after the shooting. He described the driver as six feet two inches tall, heavyset, and weighing 200 pounds. He did not get a good look at the second man. Francisco is five feet eight inches tall and weighed 220 pounds at the time of the shooting. Salomon is five feet seven inches tall and weighed 150 pounds at the time of the shooting. Sanchez is five feet ten inches tall and weighed 140 pounds at the time of trial.

“C. The Attempted Murder of an Unidentified African-American Male (Counts 2 and 3)

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