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Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge.
Convictions affirmed, sentence vacated in part, and case remanded with directions.
BY THE COURT
1. Evidence of gang affiliation or membership is not K.S.A. 2009 Supp. 60-455 evidence. Rather, gang evidence is generally admissible if relevant, unless under K.S.A. 60-445 its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.
2. A trial court is not required to give a limiting instruction regarding gang evidence absent either a request for such an instruction or an objection for the failure to give it.
3. K.S.A. 2009 Supp. 60-455(a) limits application of the statute to situations involving the admission of evidence that a person committed a crime or civil wrong on a specified occasion to infer a person has the disposition or propensity to commit another crime or civil wrong on another specified occasion.
4. The need for a limiting instruction on other crimes evidence does not depend upon which party introduces the evidence. Instead, when a trial court admits evidence under K.S.A. 2009 Supp. 60-455(b), it must give a limiting instruction informing the jury of the specific purpose for admission of the evidence in order to avoid error.
5. The statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Edmond D. Brancart, chief deputy district attorney, argued the cause, and Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
[299 Kan. 652] MORITZ, J.
A jury convicted Eldier Molina of two counts of first-degree premeditated murder and one count of criminal possession of a firearm. The district court sentenced Molina to life in prison with no possibility of parole for 50 years (hard 50) on the first murder conviction, a consecutive life sentence with no possibility of parole for 25 years (hard 25) on the second murder conviction, and a concurrent 8-month prison sentence for the firearm conviction.
In this direct appeal, Molina seeks reversal of his convictions, arguing the district court clearly erred in failing to give an unrequested limiting instruction for other crimes evidence and an unrequested instruction on voluntary manslaughter as a lesser included offense of first-degree murder. We reject both claims and affirm Molina's convictions.
Molina also asserts several sentencing claims, including that his hard 50 sentence is unconstitutional in light of Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); the district court violated his right to be free from double jeopardy by relying on the same aggravating factor to impose a hard 50 sentence and consecutive life sentences; and the district court erred in imposing lifetime postrelease supervision for his off-grid convictions.
Consistent with our recent decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), we conclude the district court's imposition of a hard 50 sentence violated Molina's right to a jury trial under the Sixth Amendment to the United States Constitution. Consequently, we vacate his hard 50 sentence, including the unauthorized period of lifetime postrelease supervision, and remand for resentencing. To provide guidance on remand, we address and reject Molina's double jeopardy claim. Finally, while we affirm Molina's remaining sentences, we vacate the unauthorized lifetime postrelease supervision portion of Molina's hard 25 sentence.
[299 Kan. 653] Factual and Procedural History
On November 13, 2009, as Kansas City, Kansas, police officers Jason Pittman and Darrell Forrest conducted surveillance at a potential drug house, Pittman saw a car arrive at the house, remain a few minutes, and leave. Pittman and Forrest followed the car and pulled behind it at a stoplight at the intersection of 18th and Central. As Pittman waited at the traffic light, he looked to the
west and saw a silver Honda pull up alongside a black sedan. Pittman thought this was odd because the Honda appeared to be in the wrong lane. Then Pittman and Forrest both heard several gunshots, and Pittman saw a muzzle flash coming from the Honda's front passenger seat.
Pittman activated the patrol car's sirens and emergency lights and drove around the car he had been following. Pittman and Forrest watched as the Honda passed through the intersection traveling eastbound on Central Avenue. As it did so, both officers saw the driver look toward the patrol car, and Pittman got a good look at the driver's face. Pittman testified he knew the driver saw him because he could read the driver's lips as the driver said, " 'Oh, shit.'" The Honda drove through a store parking lot and then south on 18th Street as Pittman, Forrest, and eventually other officers pursued it.
Ultimately, the Honda drove through an open field near the Kansas National Guard Armory and came to a rest at a dead end street. Several officers saw two individuals get out of the Honda and run into a nearby wooded area. Officers immediately arrested a third individual who got out of the backseat, 12-year-old Max Palomino.
As officers searched the wooded area for the two other suspects, they called in a K-9 unit to assist in the search. The tracking dog picked up a scent and led officers through the wooded area to a house where they found Molina hiding underneath a deck. The second individual was not found.
Other officers investigated the crime scene at 18th and Central and found two nonresponsive male victims in the front seat of the black sedan. Emergency technicians transported the victims, [299 Kan. 654] brothers Gerson Diaz-Turcios and José Diaz-Turcios, to separate medical facilities, where both men died from gunshot wounds to the head.
After his arrest, Palomino identified the two men who ran from the Honda as Molina and Juan Lopez. Officer Pittman reviewed photographs of known gang members and identified Lopez as the driver of the Honda.
The State jointly charged Molina and Lopez with two counts of first-degree premeditated murder. The State also charged Molina with one count of criminal possession of a firearm and Lopez with one count of fleeing or eluding a police officer. At the close of their joint trial, the jury found both Molina and Lopez guilty as charged. See State v. Lopez, No. 105,601, 299 Kan. __, 323 P.3d 1260 (May 9, 2014) (considering direct appeal of Molina's codefendant, Juan Lopez).
The State sought a hard 50 sentence against Molina based on his knowing or purposeful killing of more than one person during the shooting. See K.S.A. 21-4636(b) (listing an aggravating circumstance supporting imposition of hard 50 sentence as " the defendant knowingly or purposely killed . . . more than one person" ). Following an evidentiary hearing, the district court concluded the jury's findings of guilt on two first-degree premeditated murder charges clearly proved the aggravating circumstance and concluded the mitigating circumstances urged by Molina, including his relatively young age and that the shooting arose out of gang mentality, did not outweigh the aggravating circumstance. See K.S.A. 21-4635(d) (stating findings necessary to impose hard 50 sentence). Based on these findings, the district court sentenced Molina to life in prison with no possibility of parole for ...