P. v. Amaya
Filed 5/15/13 P. v. Amaya CA2/5
Opinion following rehearing
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
TOMAS AMAYA, Jr. et al.,
Defendants and Appellants.
B231525
(Los Angeles
County
Super. Ct.
No. TA10203)
APPEALS from judgments of the
Superior Court of the County of
Paul A. Bacigalupo, Judge. Affirmed.
Edward H. Schulman, under
appointment by the Court of Appeal, for Defendant and Appellant Tomas Amaya,
Jr.
Sharon Fleming, under appointment
by the Court of Appeal, for Defendant and Appellant Aldo Arevalo.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney
General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Tomas Amaya (Amaya) guilty of first
degree murder and defendant and appellant Aldo Arevalo (Arevalo) guilty of
second degree murder and assault by means of force likely to produce great
bodily injury. On appeal, Arevalo raises
several challenges to his judgment of
conviction, including claims of insufficient evidence, multiple
instructional errors, ineffective assistance of counsel, cumulative error, and
contends that punishment on both the murder count and the weapons enhancement
violated California’s multiple
conviction rule and federal double jeopardy principles.
We hold that there was sufficient
evidence supporting the guilty verdicts on both counts against Arevalo, his
claims of instructional error are either unfounded or have been forfeited, and
his other contentions are without merit.
As for the punishment on both the murder count and the weapons
enhancement, we hold that such punishment did not violate the multiple
conviction rule and that double jeopardy rules do not apply to multiple
punishment within a single case. We
therefore affirm the judgments of conviction.
FACTUAL BACKGROUND
In July 2009, sixteen-year old
Kevin Sanchez lived in the area of 105th Street
and Wilmington
Avenue. Sanchez,
whose moniker was Drowsy, was a member of the Watts
Varrio Grape Street gang (Grape
Street) and was affiliated with the Little
Gangsters and Tiny Winos cliques.
On the day of the shooting, Sanchez
walked to A.J.’s liquor store. As he
came out of the store, Sanchez noticed Jorge Hernandez (the victim) arrive in a
truck. He observed the victim drinking
beer by his truck. The victim, who
smelled of beer, approached Sanchez, “banged on him, [and] asked [him] where he
was from.†When Sanchez said he was from
“Grape,†the victim responded that he too was from “Grape.†The victim “tried to get all in [Sanchez’s]
face. He [said] he was [Sanchez’s] big
homie.†Because Sanchez did not know the
victim, he understood the “big homie†comment as a sign of disrespect. When the victim called Sanchez his “little
homie,†Sanchez denied being his “little homie.†The victim then “got in [Sanchez’s] faceâ€
again, so Sanchez pushed him and challenged him to fight. Sanchez told the victim he was drunk and to
“come back tomorrow and . . . talk to [Sanchez] sober.†Sanchez also asked the victim if he was
trying to kiss him. In response to
Sanchez’s challenge to fight, the victim again called Sanchez his “little
homie†and told Sanchez that he was too young to fight the victim. Sanchez renewed his challenge to fight, took
off his shirt, and “threw [his] guard up . . . .†When the victim refused to fight, Sanchez
taunted, “You bitch, you don’t want to fight me[?]â€
Because the victim refused to
fight, Sanchez began to walk home on Wilmington Avenue
toward 105th Street. When he arrived at the corner of 105th
Street, the victim pulled up in his truck, called
Sanchez “little homie†yet again, and said he would be back. When Sanchez’s friend Mario
said to him, “I know you, I got love for you,†which statement Sanchez
interpreted as an expression of respect toward Mario, as if the victim “knew
[Mario] real good.†Mario responded by telling the victim to go
home, that everybody knew he was drunk because he had been drinking in front of
the store, and that the victim could come back tomorrow to talk to him. Sanchez issued another challenge to fight,
and warned the victim that if he did not fight, Sanchez would tell the victim’s
clique that he “chickened out . . . .â€
The victim’s truck “burned rubber†as he left the scene. According to Sanchez, the victim was driving
as “if it was a freeway†and there were “a lot [of] kids†on that block. As the victim’s truck passed close to Amaya,
who was located down the block, Sanchez saw Amaya throw a beer at the
truck. Sanchez then heard the victim’s
truck “burning rubber or [doing] donuts, like doing circles,†in the street on
the next block.
In July 2009, Yvette Aguirre was
Arevalo’s girlfriend. She knew Arevalo
by the nickname Little Knuckles and Amaya by the nickname Chuco. On July
19, 2009, Aguirre owned a blue, four-door Toyota Camry in which she
drove Arevalo to his brother’s house on 105th Street
near Wilmington Avenue. She parked on 105th
Street, and, at some point Amaya joined them in
her car. They “were just hanging out
drinking [beer].†Aguirre saw an SUV
pull over near the corner of 105th Street
and Wilmington Avenue. A man exited the vehicle and began “arguing
with some [teenagers],†presumably Sanchez and Mario. The man appeared to be drunk. Amaya exited the Camry and approached the
SUV. As he approached, the SUV “took
off.†The teenagers chased the SUV and
Amaya threw a beer can at it. Aguirre
asked Arevalo “what was going on†because she was confused “about the whole
situation.†She told Arevalo that she
wanted to leave. After Amaya threw the
beer, she saw him talk to the teenagers.
Arevalo then exited the Camry and walked toward Amaya’s location.
Amaya and Arevalo returned to the
Camry, with Arevalo taking the front passenger seat and Amaya taking the rear
seat. Another person, whose name Aguirre
could not recall, also entered the Camry.
Aguirre then drove the group to A.J.’s liquor store on Wilmington
Avenue and “pulled in front . . . .†There she saw the victim’s SUV parked on the
opposite side of the street. Amaya
exited the Camry, followed closely by Arevalo.
As Amaya approached the SUV, Aguirre saw Amaya extending his right
arm. She could not remember whether
Amaya had anything on his face. Amaya
approached within three or four feet of the SUV. Aguirre saw a red car arrive at the scene and
then she saw Amaya shooting at the SUV.
After the shooting, Amaya entered the red car and left. Arevalo entered the Camry, and Aguirre drove
him to 105th Street where
Amaya reentered the Camry and directed Aguirre “[t]o just get him out of thereâ€
and to drive to a restaurant. As the
trio sat in the restaurant, Amaya stared at Aguirre which intimidated her. Arevalo appeared “pretty afraid.†Aguirre thereafter drove Amaya to a house and
dropped him off.
title="">[2]
Robleon Thomas was talking with
some people he knew in front of A.J.’s liquor store on the day the victim was
shot. The victim was across the street
from the store in his SUV. At some
point, Thomas observed other cars “pull[] up.â€
He saw a man wearing a blue bandana exit a car and approach the victim’s
SUV. Two other men exited the car along
with the man in the bandana. As the man
in the bandana approached the SUV with a revolver, Thomas saw the victim begin
to open his door and then throw up his hands “in a retreat manner.†Thomas heard approximately six gunshots. The two men who exited the vehicle with the
shooter appeared shocked. Following the
shooting, Thomas went to the SUV and saw the victim slumped over.
On July 19, 2009, Jeffrey Rencher was on the east side of Wilmington
Avenue across from A.J.’s liquor store talking to
some friends. He noticed an SUV parked
on the same side of the street. Rencher
was about five car lengths away from the SUV.
He heard gunshots and dropped to the ground. He then stood up and ran to 106th
Street.
When he returned to the scene of the shooting, he noticed the SUV had
rolled “on top of [his nephew’s] car.â€
On July 19, 2009, Augustin Gonzales was driving southbound on
Wilmington Avenue near 107th
Street. “A
couple of cars stopped ahead of [him].â€
He saw a “Blazer†being cut off by a burgundy car going southbound. “Some guys got out of [the] burgundy car†and
started shooting at the person in the Blazer.
Gonzales reversed direction, but so did the burgundy car. He thought it was following him, but when he
pulled into a driveway, the burgundy car passed him and pulled over about 100
yards away. He saw someone exit the
passenger side of the vehicle and run north through some houses. Gonzales returned to the scene and
photographed the victim’s SUV.
In July 2009, Los Angeles Police
Officer Tyler Stanley was assigned to the southeast division. On July
19, 2009, at approximately 6:20
p.m., he and his partner were on patrol in the area of Wilmington
Avenue and 103rd Street. A car pulled up beside them and reported a
shooting. He and his partner made a
u-turn and proceeded to the area of 107th Street
and Wilmington Avenue. At that location, they observed “a vehicle
that was on the east side of the street up on the sidewalk, [and] there was a
lot of commotion around it.†Officer
Stanley and his partner parked and approached the vehicle on foot. As they reached the vehicle, they saw the
victim lying down inside. He was
bleeding from several wounds and did not appear to be conscious or
breathing. Officer Stanley did not
notice any weapons inside the victim’s vehicle.
Detective Fontes and his partner
Detective Mark Hahn were assigned to investigate the homicide of the
victim. According to Detective Fontes,
investigators recovered, inter alia, a surveillance videotape of the area near 106th
Street and Wilmington
Avenue that depicted the events leading up to and
including the shooting. A photograph
taken from the video showed a red vehicle driving southbound on Wilmington
Avenue that the detective later determined was
registered to Amaya. Other photographs
from the video depicted the victim’s vehicle parked along the east side of the
street with the door open facing northbound.
A different photograph from the video showed a light blue vehicle with
individuals exiting the rear and front passenger doors. Another photograph showed Amaya’s red vehicle
crossing in front of the path of the victim’s vehicle. Detective Fontes identified several more
photographs taken from the security video that depicted the shooting. Portions of the videotape were also played
for the jury during Detective Fontes’s testimony.
When Los Angeles Police Detective
Mark Hahn arrived at the scene of the shooting, it had been secured. He inspected the victim’s vehicle and noted
that the center console was closed. The
rear tires of the vehicle were up on the sidewalk and it appeared “to be
resting on a tree.†The front passenger
window was rolled all the way down and the front driver’s window, which had
been shattered, “had some glass that was still in the window.†By the time Detective Hahn inspected the
victim’s vehicle, the victim had been transported to the hospital.
Los Angeles Police Department
Criminalist Julie Wilkerson (the criminalist) assisted in the
yard of the facility to which it had been towed. She had been requested to perform a bullet
path analysis and to search for and collect any firearms or bullet
evidence. During her search of the
inside of the vehicle, the criminalist opened the center console in which she
found some papers and then a plastic insert.
When she removed the plastic insert, she saw more papers and what looked
like a firearm. The papers were both
below and on top of the firearm. The
firearm she recovered from the console was a BB gun. She also observed blood stains on the left
side of the console and the right arm of the driver’s seat. But, when she opened the lid to the console,
there were no blood stains inside and there was no blood on the BB gun. If the console was closed, the BB gun would
be inaccessible because, to access it, the console needed to be opened and the
plastic insert removed. On the passenger
side of the vehicle, the criminalist located a bull horn on the seat. In the trunk, she found a cardboard beer container
and a sunshade. The criminalist used
trajectory rods to analyze the pathways of the bullets that struck the victim’s
vehicle. During direct examination, she
identified photographs taken of the trajectory rods.
Los Angeles County Deputy Medical
Examiner Vadims Poukens conducted the autopsy of the victim and determined that
he died of multiple gunshot wounds. The
victim suffered a total of seven gunshot wounds, four of which were fatal,
including a gunshot that entered near the victim’s left ear and passed through
his brain and one that went through his left lung and heart. The victim had cocaine and alcohol in his
blood, with a blood alcohol concentration of three times the legal limit.
Los Angeles Police Department
Sergeant Scott Stevens testified as a gang expert for the prosecution. He was familiar with Hispanic
street gangs generally, and explained how young
males joined such gangs. According to
Sergeant Stevens, there were various levels of gang membership, from street
level soldiers to captains. Gang members
typically had tattoos to identify them as members of the gang, as well as
monikers. A gang member moved up in a
gang based on reputation, and respect within and among gangs was
important. Falsely claiming to be a
member of a gang would be an ultimate act of disrespect. Acts of disrespect toward gang members could
result in beatings or even more violent responses.
Sergeant Stevens was familiar with Grape
Street. He
had investigated crimes committed by that gang and was familiar with its
graffiti and writings. Grape Street
controlled a specific territory that was divided among several cliques,
including the Little Gangsters and the Tiny Winos. The primary activities of Grape
Street were vandalism, possession and sales of
narcotics, robberies, homicides, and the possession of firearms.
Sergeant Stevens was familiar with
Arevalo and knew him to be a member of Grape Street
based on numerous admissions that Arevalo had made. The sergeant was also familiar with Amaya,
but had never met him, and understood that he was a member of Grape
Street based on Amaya’s various tattoos. The sergeant was familiar with Sanchez as
well, and knew him to be a member of the Little Gangsters clique of Grape
Street.
Based on his familiarity with the case, Sergeant Stevens opined that the
shooting of victim in this case was done to enhance the reputation of Grape
Street and in response to the victim’s acts of
disrespect toward Grape Street
and one of its members, Sanchez.
PROCEDURAL BACKGROUND
In an information, the Los Angeles
County District Attorney charged Amaya and Arevalo with murder in violation of
Penal Code section 187, subdivision (a).
District Attorney alleged that Amaya personally used a firearm; discharged a
firearm; and discharged a firearm causing death or great bodily injury within
the meaning of section 12022.53, subdivisions (b), (c), and (d). The District Attorney further alleged that a
principal personally: used a firearm;
discharged a firearm; and discharged a firearm causing death or great bodily
injury within the meaning of section 12022.53, subdivisions (b) and (e), (c)
and (e), and (d) and (e). The District
Attorney also alleged that the murder was committed for the benefit of, at the
direction of, and in association with a criminal street gang with the specific
intent to promote, further, and assist in criminal conduct by gang members
within the meaning of section 186.22, subdivision (b)(1)(C). And the District Attorney alleged that Amaya
had been convicted of three violent or serious felonies within the meaning of
sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b)
through (i).
Prior to trial, the District
Attorney successfully moved to amend the information to charge Arevalo in count
2 with assault by means of force likely to produce great bodily injury in
violation of section 245, subdivision (a)(4).
Following trial, the jury found Amaya guilty of first degree murder and
found the firearm and gang allegations true.
The jury found Arevalo guilty
of second degree murder and assault by means of force likely to produce great
bodily injury and found the firearm and gang allegations true. Based on the prosecution’s motion, the trial
court dismissed the prior strike conviction allegations against Amaya.
The trial court sentenced Amaya to
an aggregate term of 50 years to life, comprised of a base term of 25 years to
life on count 1, plus an additional, consecutive term of 25 years to life based
on the section 12022.53, subdivision (d) firearm enhancement. The trial court imposed but struck the
punishment for the remaining firearm enhancements and did not impose sentence
on the gang enhancements.
At a separate sentencing hearing,
the trial court sentenced Arevalo to an aggregate term of 40 years to life,
comprised of a base term of 15 years to life on count 1, plus an additional,
consecutive term of 25 years to life based on the section 12022.53, subdivision
(d) and (e)(1) enhancement. The trial
court imposed but struck the punishment for the remaining firearm enhancements
and did not impose sentence on the gang enhancement.
DISCUSSION
A. Substantial Evidence
of Review
Arevalo’s challenge to the
sufficiency of the evidence in support of the jury’s guilty verdicts on second
degree murder and assault by means of force likely to produce great bodily
injury is governed by a substantial evidence standard of review. “In assessing . . . a claim [of insufficient
evidence], we review the record ‘in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980) 26 Cal.3d
557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].)
‘The federal standard of review is to the same effect: Under principles of federal due process,
review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond
a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)’ (People v. Rodriguez (1999) 20 Cal.4th
1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] (Rodriguez).) [¶]
Moreover, as observed in Rodriguez: ‘The standard of review is the same in cases
in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543,
897 P.2d 481].) “‘Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence
is susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.’â€
[Citations.]’†[Citation.]’ (Rodriguez, supra, 20 Cal.4th at p.
11, italics added; see generally People v. Clark (2011) 52 Cal.4th 856,
942-943 [131 Cal.Rptr.3d 225, 261 P.3d 243] (Clark), and cases
cited.)†(People v. Watkins (2012) 55
Cal.4th 999, 1019-1020.)
1 – Second Degree Murder
According to Arevalo, the jury
found him guilty of second degree murder
based on an accomplice theory under the natural and probable consequences
doctrine, but the evidence did not show that Arevalo knew or should have known
that the shooting was a probable consequence of the target crime of assault by
means of force likely to produce great bodily injury. In the alternative, Arevalo argues that the
evidence was insufficient to show that he committed the target crime of assault
by means of force.
It appears the jury found Arevalo
guilty of second degree murder based on the prosecution’s alternative
accomplice theory of liability under the natural and probable consequences
doctrine. Under that alternative theory,
the prosecutor argued that Arevalo aided and abetted the commission of a gang
assault of the victim and Amaya’s shooting of the victim during the commission
of the assault was a natural and probable consequence of the assault for which
Arevalo was also liable.
“‘[A] person
aids and abets the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the
crime.’ (People v. Beeman (1984)
35 Cal.3d 547, 561 [199 Cal.Rptr. 60, 674 P.2d 1318].) Furthermore, under the ‘“natural and probable
consequencesâ€â€™ doctrine, an aider and abettor is guilty not only of the offense
he or she intended to facilitate or encourage, but also any reasonably
foreseeable offense committed by the person he or she aids and abets. (People v. Prettyman (1996) 14 Cal.4th
248, 261 [58 Cal.Rptr.2d 827, 926 P.2d 1013].)
[¶] . . . [¶] In
Prettyman, we summarized the natural and probable consequences doctrine
as follows: ‘Under California law,
of a criminal act is liable not only for that crime (the target crime), but
also for any other offense (nontarget crime) committed by the confederate as a
“natural and probable consequence†of the crime originally aided and
abetted. To convict a defendant of a
nontarget crime as an accomplice under the “natural and probable consequences†doctrine,
the jury must find that, with knowledge of the perpetrator’s unlawful purpose,
and with the intent of committing, encouraging, or facilitating the commission
of the target crime, the defendant aided, promoted, encouraged, or instigated
the commission of the target crime. The
jury must also find that the defendant’s confederate committed an offense other
than the target crime, and that the nontarget offense perpetrated by the
confederate was a “natural and probable consequence†of the target crime that
the defendant assisted or encouraged.’ (Id.
at p. 254.)†(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-96,
298-299)
In People v. Medina (2009) 46 Cal.4th 913, the Supreme Court analyzed
and approved two appellate court decisions which held that murder is a natural
and probable consequence of a gang assault.
“In People v. Montes [(1999)]
74 Cal.App.4th 1050, the victim was shot as he was retreating from a fight
between two rival gangs. Although the
defendant struck the victim (a rival gang member) with a chain after the victim
produced a knife, no guns were displayed or used during the fight. As the victim was about to drive off after
the fight ended, the defendant’s confederate retrieved a gun from a nearby
vehicle, ran up to the victim, and shot him several times. Rejecting the defendant’s argument that he
did not know his confederate had a gun, the Montes court held that the
homicide was a reasonable and natural consequence of the gang attack in which
the defendant participated. It reasoned
that escalating violence is a foreseeable consequence to be
expected in gang confrontations. (People
v. Montes, supra, 74 Cal.App.4th at p. 1056.)†(People
v. Medina, supra, 46 Cal.4th at pp 926-927.)
“In People v. Montano [(1979)] 96 Cal.App.3d 221, the court
found the defendant guilty of attempted murder as an aider and abettor even
though he had not fought with the victim.
There, the defendant and a codefendant tricked a member of another gang
into getting in their car by claiming to be members of the same gang. They drove the victim to a remote area where
another codefendant met them. The two
codefendants ordered the victim out of the car and escorted the victim to a
nearby tree, while the defendant remained inside the car. The first codefendant produced a handgun and
gave it to the second codefendant, who shot the victim. At the urging of the first codefendant, the
second codefendant shot the victim again.
Defendant argued there was insufficient evidence to support his
attempted murder conviction as an aider and abettor; he contended he had only
aided or encouraged a battery by suggesting the beating of the victim and had
had no knowledge of his codefendant’s intent to shoot the victim. [¶]
The Montano court rejected the argument, reasoning that ‘The
evidence was clear that the attack upon [the victim] was an aspect of gang
warfare and that he was attacked on the basis of his membership in the rival .
. . gang. The frequency with which such
gang attacks result in homicide fully justified the trial court in finding that
homicide was a “reasonable and natural consequence†to be expected in any such
attack. It is, therefore, clear that
[the defendant’s] guilt of aiding and abetting an attempted murder does not
depend upon his awareness that [either codefendant], or both of them, had
deadly weapons in their possession.’ (People
v. Montano, supra, 96 Cal.App.3d at p. 227.)†(People
v. Medina, supra, 46 Cal.4th at pp. 926-927.)
When the evidence in this case is
viewed in a light most favorable to the prosecution, as it must be under the
substantial evidence standard discussed above, it supports the jury’s verdict
finding Arevalo guilty of second degree murder.
Sanchez and Arevalo each admitted that they were Grape Street gang
members, and based on Amaya’s tattoos, the gang expert testified that Amaya,
the shooter, was also a member of that same gang. The victim, who had three times the legal
limit of alcohol in his blood, engaged in a gang-related confrontation with
Sanchez in front of the liquor store.
According to Sanchez, he felt disrespected by the victim’s claim that
the victim was a Grape Street gang member, and the expert confirmed that such a
false claim of gang membership was an ultimate act of disrespect toward the
gang.
The gang-related confrontation
between Sanchez and the victim renewed at a street corner near where Amaya and
Arevalo were drinking beer in Aguirre’s Camry.
At some point, Sanchez was joined on that corner by his friend, Mario. When the victim attempted to address Mario
with an expression of respect, Mario responded in a confrontational manner, as
Sanchez had done earlier at the liquorstore, telling the victim he—the
victim—was drunk and to return the next day when he was sober.
Amaya exited the Camry and approached the corner, evidence that supported an
inference that he intended to come to the aid of his younger fellow gang
members. When the victim saw Amaya, he
sped past Amaya’s location as Amaya threw a beer can at him and Sanchez and
Mario chased his SUV. Amaya then spoke
to Sanchez and Mario and thereafter to Arevalo.
Immediately following the incident
at the corner, Aguirre drove Amaya and Arevalo directly to the liquor store
where the victim was located, while another person, or other persons, traveled
in Amaya’s burgundy car to the same location.
As soon as they arrived, Amaya and Arevalo exited the Camry and
proceeded straight toward the victim in his SUV. To prevent the victim from escaping, the
person driving Amaya’s car blocked the victim’s path. As the victim attempted to back up, Amaya
came within three or four feet of the victim’s SUV and fired six shots at close
range, four of which were fatal. Amaya
then fled the scene in his car, later rejoined Arevalo in Aguirre’s Camry, and
directed the trio to a restaurant where they ate.
The foregoing evidence supported a
reasonable inference that, at a minimum, Amaya and Arevalo planned to ambush
and assault the victim for a perceived act of disrespect toward their gang and
a fellow gang member in their territory.
In the course of the ambush and assault, Amaya produced a handgun and
shot the victim in a cold-blooded, execution-style murder. Thus, even if Arevalo was unaware of Amaya’s
intent to kill—as opposed to assault—the victim, the shooting was nevertheless
a natural and probable consequence of the gang assault under the authorities
cited above. As those cases teach, such
escalating violence was a forseeable consequence that Arevalo should have
expected given the gang-related nature of the planned attack.
Arevalo further contends that he
should not have been found guilty of murder as an accomplice under a natural
and probable consequences doctrine because he did not commit the target crime
of assault by means of force. For
reasons similar to those that support Arevalo’s conviction of second degree
murder, we conclude that the evidence supported a reasonable inference that
Arevalo committed the target crime. As
discussed, Amaya and Arevalo witnessed the street corner confrontation between
admitted fellow gang member Sanchez and his friend Mario, on the one hand, and
the victim, on the other. Following that
confrontation—which included the victim driving dangerously close to Amaya at
high speed and Amaya throwing a beer at the victim’s vehicle—Amaya spoke to
both Sanchez and Mario and then to Arevalo and, almost immediately thereafter,
Amaya and Arevalo engaged in what appeared to be a well-coordinated attack on
the victim.
title="">[5] In addition to Aguirre’s Camry in which Amaya
and Arevalo arrived at the scene, Amaya’s vehicle arrived almost simultaneously
to block the trapped victim’s escape and facilitate the success of the assault.
That evidence supported a
reasonable inference that Arevalo intended to engage in a gang assault on the
victim, either directly or as an aider and abettor. That he did not personally commit a battery
on the victim is immaterial because, as discussed in detail below, actual
physical contact with or harm to the victim is not necessary to support a
finding of assault. (See
1023, 1028.) The focus is on whether the
means employed was likely to produce
great bodily injury. (
Here, the victim’s assailants blocked his escape and Amaya, with Arevalo
and another man at his side, proceeded directly to the victim’s truck, evidence
that supported an inference that they intended, at a minimum, to engage in a
physical assault on the victim which assault, given their superior numbers and
proximity to the trapped victim, was likely to inflict great bodily injury.
2 – Assault By Means of Force Likely to Produce Great
In support of his claim that there
was insufficient evidence to support the jury’s guilty verdict on count
2—assault by means of force likely to produce great bodily injury—Arevalo
asserts that there was no evidence he committed any act that was likely to
result in a battery of the victim and that he could not have aided and abetted
in the assault of the victim because no one else committed any act likely to
result in a battery of the victim.
“[Former]
[s]ection 245, subdivision (a)(1), punishe[d] assaults committed by the
following means: . . . by ‘any means of
force likely to produce great bodily injury.’[
assault without making actual physical contact with the person of the victim;
because the statute focuses on . . . force likely to produce great
bodily injury, whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d
169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].)â€
(People v. Aguilar,
Section 245, subdivision (a)(4)
requires that a defendant commit “an assault upon the person of another . . .
.†“An assault . . . is defined in section
240 as ‘an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.’
(Pen. Code, § 240, italics added.)
[¶] . . . [¶]
[B]ecause of the ‘present ability’ element of the offense, to be guilty
of assault a defendant must have maneuvered himself into such a location and
equipped himself with sufficient means that he appears to be able to strike
immediately at his intended victim.
(Thus, the emphasis is on the word ‘present’ as much as the word
‘ability.’) The policy justification is
apparent. When
someone has gone this far he is a greater and more imminent threat to his
victim and to the public peace than if he is at an earlier stage of an
attempted crime.†(People v. Valdez (1985) 175 Cal.App.3d 103, 108, 112.)
As discussed, the evidence
supported a reasonable inference that Arevalo intended either to engage
directly in a gang assault on the victim or to aid and abet such an
assault. Gang members Amaya and Arevalo
witnessed the gang-related street corner confrontation and, after speaking with
fellow gang members Sanchez and Mario, proceeded directly to the liquor store
across from which the victim was parked.
Aguirre parked her Camry across from the victim’s vehicle, and Amaya,
Arevalo, and a third man proceeded straight toward the victim while another
person driving Amaya’s car blocked the victim’s escape. Amaya, with Arevalo at his side, moved within
three or four feet of the victim’s vehicle, evidence that supported a
reasonable inference that Arevalo not only intended to engage in or support the
gang attack, but also that he had the present ability to do so. The victim was, in effect, trapped, and
Arevalo and his confederates outnumbered him at least three to one, suggesting
that the planned assault was likely to produce great bodily injury.
B. Claimed Instructional
Errors
Assault as Lesser Included Offense of Assault by Means of
Force Likely to Produce Great Bodily
Injury
Arevalo contends that because the
evidence supported a reasonable inference that he intended to engage only in
the lesser included offense of simple assault, he was entitled to a sua sponte
included offense. According to Arevalo,
the evidence did not establish a felony assault to the exclusion of simple
assault because Arevalo was not armed with any weapon and there was no evidence
as to what a gang “beat down†would entail.
“‘A court must generally instruct
the jury on lesser included offenses whenever the evidence warrants the instructions,
whether or not the parties want it to do so.
[Citation.]’ (People v.
Horning (2004) 34 Cal.4th 871, 904-905 [22 Cal.Rptr.3d 305, 102 P.3d 228] (Horning);
see People v. Valdez (2004) 32 Cal.4th 73, 115 [8 Cal.Rptr.3d 271, 82
P.3d 296].) ‘[T]he sua sponte duty to
instruct on lesser included offenses, unlike the duty to instruct on mere
defenses, arises even against the defendant’s wishes, and regardless of the
trial theories or tactics the defendant has actually pursued.’ (People v. Breverman (1998) 19 Cal.4th
142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)â€
(People v. Beames (2007) 40
Cal.4th 907, 926.) “[A] trial court,
[however,] need not instruct the jury on a lesser included offense where no
evidence supports a finding that the offense was anything less than the crime
charged. ([People v. Barton
(1995) 12 Cal.4th 186,] 196, fn. 5; see People v. Breverman[, supra,] 19 Cal.4th [at p.]
149; People v. Anderson (1983) 144 Cal.App.3d 55, 61 [192 Cal.Rptr.
409].)†(People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
The prosecution’s evidence
supported a reasonable inference that Arevalo intended to engage in what the
gang expert described as a gang “beat down†of the victim. Contrary to Arevalo’s assertion, there was
evidence from the gang expert as to what a gang “beat down†would entail. When describing how gang members are “jumped
in,†i.e., admitted, to a gang, the expert explained that a “group of guys beat
you down in an alley.†And when
describing the role of “street level soldiers†within a gang, the expert said
that they engaged in, inter alia, “retaliatory strikes†and administered “gang
punishment.†The expert also explained
that the punishment for snitching, a serious offense, could be an “old fashioned
beat down†and that the victim’s offense in this case—falsely claiming to be a
Grape Street gang member—was also considered a very serious offense that,
depending on the “extent of the insult,†would likely “end violently†in a
“beat down.â€
From that expert testimony and the
facts relevant to the assault, the jury could reasonably infer that the gang
“beat down†in which Arevalo intended to engage would have been a violent
physical beating administered by at least three gang members. Arevalo offered no evidence to the
contrary. Based on that evidence, no
reasonable juror could have concluded that Arevalo intended to engage in a
simple assault. As a result, the trial
court had no sua sponte duty to instruct on the lesser included offense of
simple assault.
and Involuntary Manslaughter as
a. Involuntary Manslaughter
Arevalo contends that he was
entitled to a jury instruction on the lesser included offense of involuntary
manslaughter. He argues that the
evidence supported an instruction on simple assault as a lesser included target
crime of assault by means of force likely to produce great bodily injury and,
if the jury found he had committed a simple assault, the killing of the victim
as a consequence of that simple assault would have been involuntary
manslaughter.
As discussed above, a trial court
does not have a sua sponte duty to
instruct on lesser included offenses that are not supported by the
evidence. (People v. Gutierrez, supra, 45 Cal.4th at p. 826.) Here, as explained, the evidence did not
support an instruction on simple assault.
Therefore, the evidence also did not support an instruction on
involuntary manslaughter. Rather, the
evidence supported a reasonable inference that Arevalo intended to engage in a
gang “beat down†of the victim, not a simple assault.
Moreover, even if the evidence
supported an instruction on a lesser included target offense of a simple
assault, this court has concluded that a trial court does not have a sua sponte
duty to instruct on lesser included target offenses under the natural and
probable cause consequences doctrine unless those lesser included target
offenses are relied upon by the prosecutor.
(See People v. Huynh (2002) 99
Cal.App.4th 662, 677-678.) “Typically,
there is a sua sponte duty to instruct on lesser included offenses. (People v. Koontz (2002) 27 Cal.4th
1041, 1084, [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Breverman[, supra,] 19 Cal.4th [at p.]
154.) Under most circumstances, involuntary
manslaughter is a lesser included offense of murder. (People v. Prettyman, supra, 14
Cal.4th at p. 274; People v. Edwards (1985) 39
Cal.3d 107, 116, fn. 10, [216 Cal.Rptr. 397, 702 P.2d 555].) But the California Supreme Court has held
that there is no sua sponte duty to instruct on target offenses on a
natural and probable consequences aiding and abetting theory unless they are
identified by the prosecutor. In People
v. Prettyman, supra, 14 Cal.4th at page 269, the California Supreme
Court described the sua sponte duty to instruct on target offenses in natural
and probable consequences aiding and abetting cases as follows: ‘We also recognize that “the trial court
cannot be required to anticipate every possible theory that may fit the facts
of the case before it and instruct the jury accordingly.†(People v. Wade (1959) 53 Cal.2d 322,
334, [1 Cal.Rptr. 683, 348 P.2d 116].)
But the sua sponte duty to instruct that is imposed here is quite
limited. It arises only when the
prosecution has elected to rely on the “natural and probable
consequences†theory of accomplice liability and the trial court has determined
that the evidence will support instructions on that theory. The trial court, moreover,
need not identify all potential target offenses supported by the
evidence, but only those that the prosecution wishes the jury to
consider.’ (Fn. omitted, original
italics; see People v. Dawson (1997) 60 Cal.App.4th 534, 544-545, [71
Cal.Rptr.2d 33].)†(Ibid.)
In this case, the prosecutor did
not identify simple assault as a target offense. The only target offense identified was
assault by means of force likely to produce great bodily injury. As a result, the trial court had no sua
sponte duty to instruct on that lesser included target offense.
Arevalo
also contends that he was entitled to an involuntary manslaughter instruction
because the evidence supported an inference that he committed a noninherently
dangerous felony without due caution and circumspection. (People
v. Burroughs (1984) 35 Cal.3d 824, 835.)
“‘Due caution and circumspection’†in this context “is equivalent to
criminal negligence . . . .†(
or Arevalo acted in a criminally negligent manner. The evidence showed that each acted
intentionally in connection with the death of the victim—Amaya acted with the
specific intent to murder the victim and Arevalo acted, at a minimum, with the
specific intent to engage in a gang assault on the victim. Thus, the trial court did not err in failing
to instruct on involuntary manslaughter based on criminal negligence.
b. Voluntary Manslaughter
Arevalo argues that he was also
entitled to a jury instruction on voluntary manslaughter under
18 (Garcia). Arevalo maintains that Garcia recognized a separate theory of voluntary manslaughter, in
addition to the well recognized theories of heat of passion and imperfect
self-defense.
Contrary to Arevalo’s assertion,
the issue in Garcia, supra, 162
Cal.App.4th 18 did not involve a claim that there was a third theory, beyond
heat of passion and imperfect self-defense, upon which to base a conviction for
voluntary manslaughter.
whether, under the facts of that case, the defendant was entitled to an
instruction on involuntary manslaughter
as a lesser included offense. (
and any discussion of voluntary manslaughter was dictum.
Moreover, even assuming
enunciated a new theory of voluntary manslaughter, the evidence in this case
did not support an instruction on that theory as a lesser included offense of
murder. The jury found that Arevalo
committed an assault by means of force likely to produce great bodily injury,
and, as noted, that finding was supported by substantial evidence. The jury also found, based on substantial
evidence, that the intentional, premeditated killing of the victim was a natural
and probable consequence of the assault.
Thus, contrary to Arevalo’s assertion, there was no evidence that
Arevalo failed to appreciate the potential lethality of his conduct. To the contrary, the jury found by
substantial evidence that he should have expected that escalating violence, including
murder, would be a natural and probable consequence of the gang “beat down†in
which he intended to engage. Based on
that evidence and finding, there was no sua sponte duty to instruct on
voluntary manslaughter.
and Probable Consequences Theory
Arevalo argues that the trial court
erred by instructing the jury on the natural and probable consequences doctrine
because there was insufficient evidence that he committed the target crime of
assault by means of force likely to produce great bodily injury. Because we have previously rejected, in the
context of other claims of error on appeal, Arevalo’s contentions concerning
the sufficiency of the evidence in support of assault by means of force, we conclude
that this claim of instructional error is unfounded.
No. 402
Although the basis for this
contention is unclear, Arevalo contends that the trial court erred by
instructing the jury on the natural and probable consequences doctrine using
CALCRIM No. 402.
title="">[7] According to Arevalo, certain language in the
instruction created the “erroneous inference†that “if Amaya shot the victim
for the same reason underlying the common plan to commit assault, then the
homicide Amaya committed was the [natural and probable consequence] of the assault.â€
Arevalo’s trial counsel did not
object in the trial court to CALCRIM No. 402 based on the language with which
Arevalo now takes issue. Instead, his
trial counsel objected on the ground that the instruction applied only to
Arevalo. Arevalo therefore forfeited
this claim on appeal by not raising it in the trial court. (People
v. Virgil (2011) 51 Cal.4th 1210, 1260.)
Moreover, to the extent Arevalo’s claim can be fairly characterized as
an assertion that CALCRIM No. 402 was ambiguous or unclear, he also forfeited
that claim by failing to request clarifying language in the trial court. (People
v. Rundle (2008) 43 Cal.4th 76, 151 [“failure to request clarification of
an instruction that is otherwise a correct statement of the law forfeits an
appellate claim of error based on the instruction givenâ€].)
No. 370
Arevalo claims that the trial court
should not have instructed the jury on motive using CALCRIM No. 370. As Arevalo reads that instruction, it
suggested to the jury that if Arevalo had a motive to confront and assault the
victim, the jury could then assume that Arevalo was guilty of murder as an
accomplice under the natural and probable consequences doctrine.
Arevalo did not object in the trial
court to the instruction on motive or argue that the language of CALCRIM No.
370 was unclear or ambiguous. He
therefore forfeited on appeal this claim of instructional error. (People
v. Virgil, supra, 51 Cal.4th at p. 1260, People v. Rundle, supra, 43 Cal.4th at p. 151.)
C. Ineffective Assistance
of Counsel
Arevalo argues that if we determine
that the trial court had no sua sponte duty to give certain instructions or
that he forfeited one or more claims of instructional error, then he received
constitutional right to effective assistance of counsel, a defendant must show
both that his counsel’s performance was deficient when measured against the
standard of a reasonably competent
attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense
that it “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.â€â€™ (People v. Kipp (1998) 18 Cal.4th 349,
366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 686.) Preliminarily, we note that rarely will an
appellate record establish ineffective
assistance of counsel. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d
1134].)†(People v. Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed ‘that “[if] the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation,†the claim on appeal must be rejected.’ (People v. Wilson (1992) 3 Cal.4th
926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope
(1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th
1].) A claim of ineffectiv
a habeas corpus proceeding. (People
v. Wilson, supra, at p. 936; People v. Pope, supra, at
p. 426.)†(People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
The record in this case sheds no
light on the issue of why Arevalo’s trial counsel failed to request the various
instructions that he claims were necessary based on the evidence or why his
trial counsel failed to object to or request clarifying instructions as to
CALCRIM Nos. 402 and 370. Moreover, we
cannot determine on this record that there is no satisfactory explanation for
his counsel’s failure to request such instructions or to object to CALCRIM Nos.
402 and 370. As to the instructions on
the claimed lesser included offenses, his trial counsel may have determined
that a given instruction was not warranted based on his view of the evidence or
there may have been tactical reasons for not requesting a given
instruction. Similarly, there may have
been tactical reasons for not objecting to or requesting clarification of
CALCRIM Nos. 402 and 370.
D. Constitutionality of the
Natural and Probable Consequences
Arevalo asserts that California’s
accessory theory of liability under the natural and probable consequences
doctrine violates the separation of powers doctrine and due process. Therefore, he claims that the trial court
committed constitutional error by instructing the jury on that theory. In a footnote, Arevalo concedes that the
Supreme Court has repeatedly endorsed the natural and probable consequences
theory and that we are bound by those decisions. (People
v. Prettyman, supra, 14 Cal.4th at p. 260 [“Although the ‘natural and
probable consequences’ doctrine has been ‘subjected to substantial criticism
(citations), it is an ‘established rule’ of American jurisprudence
[citation]â€]; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Given this concession, we reject this contention without further
discussion.
E. Cumulative Error
Arevalo maintains that the
cumulative effect of the errors at trial which he challenges on appeal
prejudiced him and warrants reversal.
Because we have determined that no such errors occurred at trial, we
reject this claim as well.
F. Cruel and Unusual
Punishment
Arevalo contends that his sentence
of 40 years to life violates California’s constitutional prohibition against
cruel or unusual punishment. Based on
his view of the evidence, Arevalo concludes that his sentence is
disproportionate to his crime because he had no adult criminal history, was
unaware that Amaya was armed or intended to kill the victim, and otherwise had
limited involvement in the actual murder of the victim.
The United States Constitution
prohibits the imposition of cruel
and unusual punishment (U.S. Const., 8th Amend.), and the California
Constitution prohibits the imposition of cruel or unusual punishment (Cal. Const., art I, § 17). The California and federal constitutional
provisions have both been interpreted to prohibit a sentence that is “so
disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.†(In re Lynch (1972) 8 Cal.3d 410, 424,
fn. omitted; see also Ewing v. California (2003) 538 U.S. 11, 32-35; Harmelin
v. Michigan (1991) 501 U.S. 957, 962.)
The federal constitutional standard is one of gross
disproportionality. (Ewing v.
California, supra, 538 U.S. at p. 21; Harmelin v. Michigan, supra,
501 U.S. at p. 1001.) Successful
challenges to the proportionality of particular sentences have been very
rare. (Rummel v. Estelle (1980)
445 U.S. 263, 272; Ewing v. California, supra, 538 U.S. at p. 21
[“outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rareâ€]; People
v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [“Findings of disproportionality
have occurred with exquisite rarity in the case lawâ€].)
The California Supreme Court has
instructed that, when reviewing a claim of cruel or unusual
punishment, courts should examine the nature
of the offense and offender, compare the punishment with the penalty for
more serious crimes in the same jurisdiction,
and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th
468, 511; In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Defendant does not contend that his punishment
is unconstitutional in the abstract, but as applied to him. Thus, defendant’s argument addresses the
first factor identified in In re Lynch—the nature of the offense and the offender. Regarding the nature of the offense and the offender, we evaluate the totality
of the circumstances surrounding the commission of the current offenses,
including the defendant’s motive, the manner of commission of the crimes, the
extent of the defendant’s involvement, the consequences of his acts, and his
individual culpability, including factors such as the defendant’s age, prior
criminality, personal characteristics, and state of mind. (People v. Martinez (1999) 71
Cal.App.4th 1502, 1510.)
The nature of the offense and the
offender in this case justify the sentence imposed on Arevalo by the trial
court. The evidence of the shooting
supported a reasonable inference that Arevalo’s motive for the shooting was
gang-related, i.e., to punish the victim for insulting a fellow gang member and
falsely claiming to be a member of Grape
Street. The evidence of the
manner of commission of the crime showed that Arevalo agreed to engage in or
support the ambush of the victim for the purpose of administering a gang “beat
down†as punishment. And Arevalo’s
involvement in the crime was more extensive than he claims. Arevalo knowingly accompanied Amaya to the
scene, exited the Camry with him, and approached the victim’s vehicle at
Amaya’s side, evidence which suggests support of and deep involvement in the
ambush and assault of the victim. The
consequences of Arevalo’s actions were serious; based on his support of and
participation in the planned attack, the victim was trapped and vulnerable to
the close range shooting. Although
Arevalo may not have had actual knowledge of Amaya’s intent to kill, the jury
found based on substantial evidence that Arevalo should have expected that the
assault would escalate to a killing due to the gang-related motive underlying
the planned assault. Arevalo’s personal
culpability for the shooting was evident from his motive—to punish the victim
for disrespecting his gang. Finally,
although Arevalo may not have had an adult criminal history, he had a juvenile
criminal history, and he repeatedly admitted to the gang expert that he was a
member of Grape Street, not a former member.
G. Multiple Conviction Rule
and Double Jeopardy Principles
Amaya, joined by Arevalo, contends
that the imposition of a section 12022.53, subdivision (d) firearms enhancement
on a defendant convicted of murder violates the multiple conviction rule set
forth in People v. Ortega (1998) 19
Cal.4th 686, 692-694 and People v.
Pearson (1986) 42 Cal.3d 351, 355-360, as well as federal constitutional
principles of double jeopardy. According
to Amaya, the factual element essential to establishing the section 12022.53,
subdivision (d) enhancement—discharge of a firearm causing death—is necessarily
consumed within the elemental components of murder—proximately causing death of
the victim.
Amaya concedes, as he must, that
two recent California Supreme Court decisions have rejected his contention
under California’s multiple conviction rule.
(People v. Sloan (2007)
42 Cal.4th 110, 115-125 and
126, 130-134.) Because we are bound by
those decisions under Auto Equity Sales,
Inc. v. Superior Court, supra, 57 Cal.2d at page 455, we reject Amaya’s
contention that his punishment violated California’s multiple conviction rule.
Amaya also concedes that,
historically, federal double jeopardy has not applied to multiple punishment
within a unitary trial, but contends that recent United States Supreme Court
decisions “suggest†that it now should.
Again, because there is California Supreme Court and United States
Supreme Court authority holding that multiple criminal punishments that arise
out of a unitary criminal proceeding
do not implicate federal double jeopardy principles, People v. Sloan, supra, 42 Cal.4th at page 121,
93, 99, we are bound to follow that authority and reject Amaya’s double
jeopardy contention.
DISPOSITION
The judgments of conviction are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MOSK, J.
We concur:
ARMSTRONG, Acting
P. J.
KRIEGLER, J.
Angeles Police Detective Roger Fontes testified that a photograph from a
security video depicting the events around the liquor store leading up to and
including the shooting showed a male on a bicycle at the scene named Mario
Lezeola.
viewed portions of a security videotape depicting the events around the liquor
store leading up to and including the shooting.
She identified both Amaya and Arevalo on the videotape.
