P. v. Garcia
Filed 1/29/14 P. v. Garcia
CA2/3
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE CRUZ
GARCIA, JR. et al.,
Defendants and Appellants.
B244732
(Los
Angeles County
Super. Ct. No.
BA369694)
APPEAL from a judgment of
the Superior Court of Los Angeles County, Craig E. Veals,
Judge. Affirmed.
David M.
Thompson, under appointment by the Court of Appeal, for Defendant and Appellant
Jose Cruz Garcia, Jr.
Gerald Peters, under appointment by the
for Defendant and Appellant Jesus Daniel Navarro.
Kamala D. Harris,
Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott
A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A
jury found defendants and appellants Jose Cruz Garcia, Jr. and Jesus Daniel Navarro
guilty of attempted murders and found true gun and gang allegations. On appeal, defendants contend that their
trials should have been severed and that the evidence is insufficient to
support findings that the attempted murders were premeditated, willful, and
deliberate. Garcia makes the additional
contention that the evidence is insufficient to support his conviction for the
attempted murder of Marvin Zelaya.
name="_ftnref1" title="">[1] We reject these contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. October 22, 2007: The attempted murder of
Marcos Gonzalez (count 3).
On
October 22,
2007, at about 8:30 p.m.,
Marcos Gonzalez
title="">[2]
was with his girlfriend and friend, Ranferi Chamu, on East 42nd Street in Los Angeles when he was shot. According
to Officer Oscar Gutierrez, Gonzalez said that a man with very short hair, a
thin mustache, and a dark complexion got out from the front passenger seat of a
brown four-door Honda Accord. The man
yelled, “ ‘ “Where are you from?†’ †Gonzalez said he
wasn’t from “anywhere,†and he didn’t “gang bang.†Replying, “ ‘ “I think you’re from 38th Street,†’ â€
the man pulled a handgun from his sweatshirt and fired six or seven times at
Gonzalez, hitting Chamu. The shooter
fled in the car, whose driver flashed a “W†hand sign, which Gonzalez
recognized as a symbol of the Barrio Mojadas (BMS) gang. The driver had a shaved head and a light
complexion.
Less
than a year after being shot in 2007, Gonzalez was shot again in June 2008.
Officer Gutierrez interviewed Gonzalez, who admitted he did not tell the
detective investigating the October 2007 shooting that he could identify the
perpetrators. The interview led Officer Gutierrez
to suspect that defendant Garcia was involved in the October 2007
shooting. The officer therefore showed
Gonzalez a photographic six-pack with Garcia’s photograph in it. He identified Garcia as the driver who
flashed a Barrio Mojados gang sign as he drove away with the shooter.
B. December 21, 2007: The attempted murder of
Miguel Solis (count 2).
On
December 21,
2007, at about 11:00 a.m.,
Miguel Solis left his house on 51st Street in Los Angeles. A group of people were drinking outside. After he drove away, someone leaned out of
the back of a car and said, “ ‘Fuck Tramps,’ †referring to the 38th Street gang. Solis, who denied being a gang member, was
shot in the chest but survived.
name="_ftnref4" title="">[4] The shooter, who was about 13 feet from
Solis, wore a gray hooded sweatshirt and was a male Hispanic. After shooting Solis, the man ran into a pink
house with white trim and a wrought iron fence.
Solis did not tell officers in the ambulance that the shooter had a
tattoo on his neck.
About
a month after he got out of the hospital, Solis saw the shooter walk into a
store. He also saw him outside a house
on 51st Street.
The first time
he was shown a photographic six-pack, Solis identified John Nunez as the
shooter, but Nunez was in jail on the day Solis was shot. Solis, who was told that Nunez could not be
the shooter, then identified Garcia from a photographic six-pack, writing that
he remembered the shooter’s green eyes and mustache.
He was 100 percent positive of his
shooter.
C. January 31, 2008: The attempted murder of
Marvin Zelaya (count 1).
On
January 31,
2008, at about 7:00 p.m.,
Carlos Fajardo and Zelaya were in the area of 48th Street and
Central Avenue. Two men came out of an
alley and one, from 13 feet away, pointed a gun at Zelaya. According to Zelaya, the same man asked
Zelaya where he was from. When Zelaya
said he wasn’t from a gang but a crew, the man said, “Barrio Mojados.†The man, who Zelaya identified at trial as
Navarro, shot Zelaya in the chest and hand.
Zelaya told Officer Gutierrez
that the nonshooter asked, “ ‘Who has the rifle?’ †and “ ‘Where are
you from? This is MS Hood.’ †When Zelaya denied any gang affiliation, the
nonshooter called him a liar.
name="_ftnref7" title="">[7]
Officer
Joel Ruiz responded to the shooting.
Zelaya told him that a male Hispanic hit him up and said BMS. At the hospital, Fajardo told Officer Ruiz that
the nonshooter, who he identified at trial as Garcia, punched him and that he
wore a white T-shirt and had brown eyes.
Garcia asked, “ ‘Where are you from? You bang?’ †and “ ‘Who has the
rifle?’ †After Fajardo said he
wasn’t from a gang, Garcia punched him while the other man pointed a gun at him.
The shooter wore a gray sweatshirt, was 5 feet
10 inches tall, and weighed 185 to 190 pounds.
Zelaya
was unable to identify anyone from a book containing “100 or 200†photographs
of people from the same gang. Officer
Gutierrez later showed him a photographic six-pack from which he identified the
person who shot him, Navarro. He did not
identify Garcia.
Fajardo,
however, identified Garcia from a photographic six-pack, stating, “ ‘It’s
almost No. 4 because I think he’s the one that hit me and he looks real
familiar.’ †Fajardo did not
identify Navarro from a photographic six-pack.
Months before
the shooting, Zelaya saw Navarro on 47th and Central, and he saw him a second time on 46th and Ascot.
At
trial, Zelaya identified Navarro as the shooter and Garcia as his companion.
Fajardo, at trial, identified Garcia as
one of the men who came from the alley.
D. The People’s gang expert testimony.
Officer
Ruiz, the People’s gang expert,
was familiar with the Barrio Mojados gang because he arrested members of the
gang, took reports from Barrio Mojados crime victims, and talked to members of
the gang during consensual encounters. Barrio
Mojados also goes by “ ‘Wet Town’ †and “ ‘Weteros’ †and has approximately 150
documented members. The gang’s
boundaries are Vernon Avenue to the north, 54th
Street to the south, Central Avenue
to the west, and Compton
Avenue to the east. The gang’s primary activities range from
vandalism, possession of narcotics (marijuana and rock cocaine) for sale,
possession of firearms, assault with deadly weapons, robberies, attempted murders,
and murders.
When Officer
Ruiz was assigned to the gang enforcement detail, the 38th Street
gang was one of the gangs he was responsible for. He investigated crimes in which members were
suspects and victims. The gang’s
boundaries are 33rd Street to the north, 48th
Place to the south, Alameda to the
east, and Central to the west. Gonzalez,
one of the victims, is a member of 38th Street. Ruiz knows him personally, and Gonzalez
admitted his membership.
In
Officer Ruiz’s opinion, both defendants are Barrio Mojados members and belong
to its clique, 49th Street. Garcia, while in Navarro’s
company, self-admitted to Los
Angeles police officers on February 23, 2008. Garcia also admitted his
gang membership to Officer Ruiz. Garcia
has tattoos consistent with the gang. Navarro
also has Barrio Mojados tattoos, and he self-admitted to Officer Ruiz’s former
partners in the gang unit as recently as February 2008.
Using
hypotheticals based on the shootings of Solis and Zelaya, it was Officer Ruiz’s
opinion that the crimes were committed for the benefit of Barrio Mojados.
E. The defense eyewitness memory expert.
Dr.
Mitchell Eisen, a psychologist
and expert in eyewitness memory, testified that memory is not captured as if on
a camera. Rather, people have
“attentional capacity,†meaning we only take in so much at a time. When memories are retrieved, we use
inferences to fill in gaps. Memory,
therefore, is “reconstructive,†and the most recently remembered version of an
event is “how we’ve decided it happened,†even if it includes a mistaken
detail.
Trauma
and stress can affect memory, limiting dramatically the amount of information
people take in and accurately recall. When a traumatic event occurs, people focus on
some element of the experience, although the focus varies from person to person. “Weapon focus,†for example, occurs when a
victim focuses on a weapon, failing to register other details of a crime.
Eyewitness
identification can be contaminated in the same sense that physical evidence can
be contaminated. “Witness conformityâ€
occurs when witnesses talk to each other and their memories begin to conform to
each others’ memory of the event. The
California Peace Officer’s Legal Source book and the United States Department
of Justice Guide to Law Enforcement recommend separating witnesses when
obtaining identifications.
“Experimentor
bias†is the influence, intentional or not, the experimentor might have on the
subject. If the experimentor knows the “rightâ€
answer, then he or she might influence the outcome. It is therefore recommended that the officer
who administers a lineup not know who is the suspect. Also, a pre-lineup admonition is designed to
protect against people assuming that the suspect is in the lineup. Without the admonition, people are more likely
to treat the lineup like a multiple choice test, meaning, they think the answer
must be there.
Relative
judgment occurs when a witness doesn’t recognize anyone immediately but then
goes through a longer decision process to decide who is the closest of the
group to resemble the perpetrator of the crime.
Once people make an identification, they tend to stick with it. Witness confidence is not a good predictor of
accuracy.
Memory
reports given closer in time to the event tend to be more complete, detailed,
and accurate than reports given after extended periods of time. Memory drops off significantly a few days
after an event. Also, as time passes,
there are more opportunities for exposure to new information that might
influence one’s memory of the event.
Although people do forget to mention details initially, later
information, if it is accurate, would be additive, not contradictory. If a witness changes and contradicts their
story, it is possible they were exposed to and adopted new information.
Defense
counsel asked Dr. Eisen to assume that a witness to a shooting makes no
mention, right after the event, of the uniqueness of the assailant’s eye
color. The police develop a suspect who
has green eyes. The witness identifies
this suspect and says, for the first time, that he remembers the assailant
having green eyes. According to the
doctor, it is possible that they are really remembering for the first time the
green eyes. It is also possible they
incorporated the detail into their memory after being introduced to it.
II. Procedural background.
An
information filed on December 17, 2010, alleged: count 1, the premeditated attempted murder of
Zelaya by Garcia and Navarro; count 2, the premeditated attempted murder of
Marcos Lopez by Garcia and Navarro; count 3, the premeditated attempted murder
of Miguel Solis by Garcia; and count 4, the premeditated attempted murder of
Marcos Gonzalez by Garcia and Navarro. Count
2 was dismissed and no evidence was introduced at trial concerning the
attempted murder of Lopez. Count 3,
became count 2 and count 4 became count 3. Gun and gang enhancements were alleged as to
each count.
The defendants
were tried by a jury after their motion to sever trial was denied.
On April 14, 2011, the jury found Garcia guilty of count 1, the attempted murder of
Zelaya (Pen. Code, §§ 187, subd. (a), 664)
and of count 2, the attempted murder of Solis.
The jury found Navarro guilty of count 1. The jury found Garcia and Navarro not guilty
of the attempted murder of Gonzalez, count 3.
The jury found
that the attempted murders were premeditated, willful, and deliberate. As to count 1, the jury found true principal
gun use allegations (§ 12022.53, subds. (d), (e)(1)) against Garcia and
personal gun use allegations (id.,
subd. (d)) against Navarro. As to
count 2, the jury found true personal gun use allegations (id., subd. (d)) against Garcia. As to both counts and both defendants, the
jury found true gang allegations (§ 186.22, subd. (b)(1)(C)).
On October 18,
2012, the trial court sentenced Garcia, on counts 1 and 2, to two life terms
plus two 25-years-to-life terms for the gun use enhancements (§ 12022.53,
subd. (d)). Navarro was sentenced, on
count 1, to life plus 25 years to life (id.,
subd. (d)).
DISCUSSION
I. The
trial court did not abuse its discretion by denying the motion to sever trial.
Garcia contends
that the failure to sever his trial from Navarro’s denied him a fair trial and
due process of law. We disagree.
The preference
for joint trials is a legislative one:
“When two or more defendants are jointly charged with any public offense,
. . . they must be tried jointly, unless the court order[s] separate
trials.†(§ 1098.) This preference for joint trials is based on
promoting economy and efficiency and serving the interests of justice by
avoiding the “ ‘ “scandal and inequity of inconsistent verdicts.†’ †(People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman and Marlow).) Thus,
an “accusatory pleading may charge two or more different offenses connected
together in their commission, or different statements of the same offense or
two or more different offenses of the same class of crimes or offenses, under
separate counts, and if two or more accusatory pleadings are filed in such
cases in the same court, the court may order them to be consolidated.†(§ 954.)
The trial court, however, “in the interests of justice and for good
cause shown, may in its discretion order that the different offenses or countsâ€
be tried separately. (
The
denial of a severance motion is reviewed for an abuse of discretion, judged on
the facts as they appeared at the time of the ruling. (Coffman
and Marlow, supra, 34 Cal.4th at p. 41.)
To establish an abuse of discretion, the defendant must make a clear
showing of prejudice. (
798; People v. Soper (2009) 45
Cal.4th 759, 773-774.) If the trial
court abused its discretion, reversal is required only if it is reasonably
probable the defendant would have received a more favorable result in a separate
trial. (People v. Souza (2012) 54 Cal.4th 90, 109; Coffman and Marlow, at p. 41.)
Even if the ruling was correct when made, reversal is required if the
defendant shows joinder actually resulted in “gross unfairness,†amounting to a
denial of due process. (
590, overruled on another ground by People
v. Reyes (1998) 19 Cal.4th 743, 752-754; People v. Ervin (2000) 22 Cal.4th 48, 69.)
The trial court
here found that joinder was proper because the crimes were “all identical,
committed for all intents and purpose identically.†“I do not see any undue prejudice attached to
the defendant based upon the fact that there is more than one crime involved;
based upon the fact that they are all crimes of the same nature. Based upon the representations that are made
by both attorneys . . . , I do not believe that weaker crimes are going to be
bootstrapped by stronger offenses, because apparently there are no stronger
offenses in this particular case. They
all rely upon eyewitness identification.
There is no cross-admissibility in any of the cases.â€
Garcia
concedes that joinder was proper because the charged crimes were of the “same
class,†namely, premeditated attempted murder.
He nonetheless argues that the “interests of justice†and “for good
cause shown†the severance motion should have been granted. (§ 954.)
To determine whether the trial court abused its discretion, we first
consider whether evidence underlying the charges would be cross-admissible,
because cross-admissibility of evidence is normally sufficient to dispel any
suggestion of prejudice. (
pp. 774-775.) If, however, the evidence
would not be cross-admissible, we next consider “ ‘whether the benefits of [the]
joinder were sufficiently substantial to outweigh the possible “spill-overâ€
effect of the “other-crimes†evidence on the jury in its consideration of the
evidence of defendant’s guilt of each set of offenses.’ [Citations.]
In making that assessment, we
consider . . . : (1) whether
some of the charges are particularly likely to inflame the jury
a weak case has been joined with a strong case or another weak case so that the
totality of the evidence may alter the outcome as to some or all of the
charges; or (3) whether one of the charges (but not another) is a capital
offense, or the joinder of the charges converts the matter into a capital
case.†(Id. at p. 775.)
As to
cross-admissibility, the trial court found that there was no cross-admissible
evidence. We do not, however, agree with
the trial court on this point. The gang
evidence was cross-admissible. The
People’s theory was that each of the original four counts of attempted murder
were committed by Garcia and/or Navarro, members of the Barrio Mojados gang,
against people who were members of a rival gang (38th Street) or who defendants
thought were rival gang members. Officer
Ruiz supported this theory by testifying, for example, about Barrio Mojados’s
territory, 38th Street’s territory, and that Gonzalez (the victim in count 3) was a member
of 38th Street. This evidence was relevant
to defendants’ motive for the crimes; hence, it was relevant to the issue of
premeditation, deliberation and willfulness.
But
even if we assume, as did the trial court, that there was no cross-admissible
evidence, the remaining factors relevant to severance do not establish an abuse
of discretion. None of the three charges
on which the defendants were ultimately tried were likely to inflame the
jury. Rather, they were all “similar in
nature and equally egregious.†(
780.) Each involved brief encounters
during which the assailants issued a gang challenge before shooting the
victim.
Nor was a weak
case joined with a strong case so that the totality of the evidence altered the
outcome as to some or all of the charges.
All three counts depended on eyewitness identification testimony. No physical evidence linked defendants to any
of the crimes. The victim in count 3,
Gonzalez, was unavailable to testify and therefore his preliminary hearing
testimony was read to the jury.
name="_ftnref11" title="">[11] To the extent this made count 3 “weakerâ€â€”and
it clearly was in that the jury found defendants not guilty of the crime—a
“mere imbalance in the evidence . . . will not indicate a risk of
prejudicial ‘spillover effect,’ militating against the benefits of joinder and
warranting severance of properly joined charges.†(People
v. Soper, supra, 45 Cal.4th at p. 781.)
The final
factor, whether one of the charges was a capital offense, does not apply.
Although these
factors demonstrate that the trial court did not abuse its discretion,
defendants cite Williams v. Superior Court (1984) 36 Cal.3d 441. Williams concerned severance of murder
charges arising out of two separate but apparently gang-related incidents which
occurred about nine months apart. In
considering the prejudicial effect of joining the charges, the court found that
the evidence of gang membership, “the sole distinctive factor allegedly common
to each incident†might have a prejudicial, if not inflammatory, effect on a jury
in a joint trial: “The implication that
gangs were involved and the allegation that petitioner is a gang member might
very well lead a jury to cumulate the evidence and conclude that petitioner
must have participated in some way in the murders or, alternatively, that
involvement in one shooting necessarily implies involvement in the other. . .
. In addition, . . . it might be the
highly publicized phenomenon of gang warfare in Southern California which would
be on trial as much as the defendant, thereby raising the spectre of prejudice
far beyond the facts of the actual case.â€
(Id. at p. 453.) The court
also cautioned against joinder if there was a danger the jury would aggregate
the evidence, “though presented separately in relation to each charge, and
convict on both charges in a joint trial.â€
(Ibid.)
Although Williams
was critical of using gang evidence to support joinder, what also concerned
the Williams court was that one of the charged crimes was a capital
offense, joined with a noncapital one—a concern that is not present in our
case. (Williams v. Superior Court,
supra, 36 Cal.3d at p. 454.) Moreover,
the gang evidence here was limited and specific. It showed, for example, that defendants
Garcia and Navarro belonged to Barrio Mojados; that a reference to Barrio
Mojados was made before Zelaya was shot; and that “Fuck Tramps†(something a
Barrio Mojados gang member might say in derogation to 38th Street
gang) was yelled before Solis was shot. The
gang evidence therefore connected defendants to the crimes and to each other.
For the same
reasons on which we base our conclusion the trial court did not abuse its
discretion in denying the severance motion, we also conclude that the denial of
severance did not result in actual unfairness so that it denied defendants due
process or the right to a fair trial, a showing requiring defendants to meet a
“high burden.†(People v. Soper, supra,
45 Cal.4th at pp. 783-784.) The evidence
underlying each incident was straightforward and distinct. (Id. at p. 784.) The evidence of each incident was also independently
sufficient to support defendants’ conviction of the charged crimes. And, as we discussed above, there was no
disparity in the nature of the three charges at issue during trial. Nor was there a great disparity in the
strength of the evidence supporting each offense, which depended primarily on
eyewitness identification. The facts of
each crime, compared to the others, were not likely to inflame the jury unduly.
Indeed, the jury’s finding defendants
not guilty of the attempted murder of Gonzalez suggests that it was capable of
differentiating between defendants’ various attempted murders. (Ibid.)
We therefore
conclude that defendants have failed to demonstrate that their trial was
grossly unfair or the level of prejudice required to demonstrate error in a
trial court’s denial of a motion to sever properly joined charges. (People v. Soper, supra, 45 Cal.4th at
p. 784.)
II. Sufficient evidence supports the
conviction for the attempted murder of Zelaya.
Garcia
contends there is insufficient evidence to support his conviction for the
attempted murder of Zelaya as an aider and abettor. We disagree.
When
determining whether the evidence was sufficient to sustain a criminal
conviction, “we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.]†(People
v. Snow (2003) 30 Cal.4th 43, 66; see also People v. Carrington (2009) 47 Cal.4th 145, 186-187.) We presume in support of the judgment the
existence of every fact the trier of fact could reasonably deduce from the
evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.)
Reversal is not warranted unless it appears “ ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard applies when the conviction
is based primarily upon circumstantial evidence. (Zamudio,
at p. 357; People v. Valdez (2004) 32
Cal.4th 73, 104.)
A
person who aids and abets the commission of a crime is a principal in the
crime. (People v. McCoy (2001) 25
Cal.4th 1111, 1116-1117; People v.
Prettyman (1996) 14 Cal.4th 248, 259; People
v. Lisea (2013) 213 Cal.App.4th 408, 414; § 31.) “[P]roof of aider and abettor liability
requires proof in three distinct areas: (a)
the direct perpetrator’s actus reus––a crime committed by the direct
perpetrator, (b) the aider and abettor’s mens rea––knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus––conduct by the aider
and abettor that in fact assists the achievement of the crime. [Citation.]†(People
v. Perez (2005) 35 Cal.4th 1219, 1225.)
Among the
factors that may be taken into account when determining whether a defendant was
an aider and abettor are presence at the crime scene, companionship, and
conduct before and after the offense, including flight. (In re
Juan G. (2003) 112 Cal.App.4th 1, 5.)
But mere presence at the scene of a crime, knowledge of the
perpetrator’s criminal purpose or the failure to prevent the crime do not
amount to aiding and abetting, although these factors may be taken into account
in determining criminal responsibility.
(People v. Garcia (2008) 168
Cal.App.4th 261, 272-273; People v.
Nguyen (1993) 21 Cal.App.4th 518, 529-530.)
“ ‘Whether defendant aided and abetted the crime is a question of fact,
and on appeal all conflicts in the evidence and reasonable inferences must be
resolved in favor of the judgment.’
[Citation.]†(
402, 409; In re Juan G., at p. 5.)
The
evidence here shows that Garcia was more than merely “present†with Navarro at
the shooting of Zelaya. Garcia and
Navarro were members of the same gang, Barrio Mojados. Although membership in a common gang by
itself would be insufficient to establish aider and abettor liability, such
common gang membership can be relevant to intent and motive in aiding and
abetting a crime. (People v. Garcia, supra, 168 Cal.App.4th at pp. 277-278; but see Mitchell v. Prunty
(9th
Cir. 1997) 107 F.3d 1337, 1342, overruled on another ground by
133 F.3d 1242, 1248.)
the aider and abettor and direct perpetrator were cofounding members of the
same gang. (Garcia, at pp. 268, 277.)
Gang evidence was introduced to show that they “undertook to ‘elevate’
the status†of their gang and that gang members will support fellow gang
members during crimes. (
members of Barrio Mojados. Not only was
there evidence that they committed the crime against Zelaya, but there was
evidence they had previously tried to kill Gonzalez, the victim in count 3. Evidence of their partnership in more than
one criminal act committed at different times against different people tended
to show that Garcia was knowingly aiding and abetting Navarro to benefit or
further their gang.
Aside from their
membership in a common gang, the bare facts of the crime against Zelaya
establish that Garcia aided and abetted Navarro in the attempted murder. Garcia and Navarro emerged from the alley
together. At least one of them issued a
gang challenge (Zelaya testified that Navarro asked where he was from, and
Fajardo said that Garcia asked where he was from). Garcia did not passively look on as Navarro
shot Zelaya. Rather, Garcia assisted
Navarro by asking, “ ‘Who has the rifle?’ †This question suggests knowledge that what
was occurring was not a peaceful confrontation but one fraught with the potential
for violence. (See, e.g.,
at p. 274 [aider and abettor who “did most of the talking in the confrontation
leading to the shooting†thereby “encouraged†the shooting].) Garcia then hit Fajardo while Navarro pointed
a gun at the victims. Afraid that
Navarro would shoot him, Fajardo did not hit Garcia but instead fled into a
store.
This
evidence is more than sufficient to show that Garcia aided and abetted a
coordinated attack on Zelaya and Fajardo, with the knowledge that Navarro had a
gun and would use it.
III. Sufficient evidence supports the
premeditation finding.
Both
defendants contend there is insufficient evidence to support the findings that
the attempted murders of Zelaya and Solis were premeditated, willful, and
deliberate. Again, we disagree.
A murder that is
premeditated and deliberate is murder of the first degree. (§ 189; People v. Burney (2009) 47 Cal.4th 203, 235.) Premeditation and deliberation requires more
than a showing of intent to kill. (
379, 419; People v. Concha (2010) 182
Cal.App.4th 1072, 1083-1084.) An intentional
killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection, rather than as the product of an
unconsidered or rash impulse. (
118.) “The process of premeditation and
deliberation does not require any extended period of time. ‘The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly . . . .’
[Citations.]†(People v. Mayfield (1997) 14 Cal.4th
668, 767.)
A reviewing
court normally considers three types of evidence when determining whether a
finding of premeditation and deliberation is adequately supported: planning activity by the defendant; motive;
and the manner of killing. (
643, 663-664; People v. Burney,
401; People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 26-27.) “A first degree murder conviction will be
upheld when there is extremely strong evidence of planning, or when there is
evidence of motive with evidence of either planning or manner.†(Romero,
at p. 401.) These factors are not the
exclusive means to establish premeditation and deliberation and need not be
present in any particular combination, or at all, to establish the evidence was
sufficient. (Gonzalez, at p. 663;
Burney, at p. 235; People v. Tafoya (2007) 42 Cal.4th 147, 172; People
v. Lenart (2004) 32 Cal.4th 1107, 1127.)
As to the
attempted murder of Zelaya, evidence of planning activity and motive and the
manner of the attempted killing support the premeditation finding. As we discussed, Navarro and Garcia were
members of the same gang, Barrio Mojados.
Together, they exited an alley and confronted Zelaya and Fajardo. Navarro was armed with a gun, suggesting he
was prepared and planned for a violent confrontation. (People v. Lee (2011) 51 Cal.4th 620,
636 [the defendant’s possession of a loaded gun on the night of the murder
indicates he “considered the possibility of a violent encounterâ€].) Navarro pointed the gun at the victims while
Garcia asked whether they were armed.
Either Navarro
or Garcia or both asked the victims where they were from. This gang challenge establishes a motive for
the crime; hence it, too, is evidence of premeditation. (See People v. Sanchez (2001) 26
Cal.4th 834, 849 [“Premeditation can be established in the context of a gang
shooting even though the time between the sighting of the victim and the actual
shooting is very briefâ€].) In
innocent bystander) was killed during a drive-by shooting which was preceded by
gang challenges issued by the defendant and the intended victim. Here, Navarro and Garcia may have “happened
upon†the victims, but the randomness of the meeting does not necessarily
negate premeditation. Where, as here,
the shooting took place in the context of a gang confrontation, a cold and
calculated judgment to kill someone perceived to be a rival gang member may be
arrived at in moments.
The manner in
which the attempted murder took place also shows premeditation. The shooting was unprovoked. Zelaya and Fajardo were just walking when
defendants confronted them. Even after they
were provoked with the gang challenge, neither Zelaya nor Fajardo said they
were in a gang or otherwise acted provocatively. “The utter lack of provocation by the victim
is a strong factor supporting the conclusion that appellant’s attack was
deliberately and reflectively conceived in advance. [Citations.]†(People v. Lunafelix (1985) 168
Cal.App.3d 97, 102.) Navarro also shot
Zelaya in the chest and hand while standing approximately 13 feet from
him. “The act of firing toward a victim
at a close, but not point blank, range ‘in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an
inference of intent to kill . . . .’ [Citation.] ‘The fact that the shooter may have fired only
once and then abandoned his efforts out of necessity or fear does not compel
the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have
escaped death because of the shooter’s poor marksmanship necessarily establish
a less culpable state of mind.’ [Citation.]†(People v. Chinchilla (1997) 52
Cal.App.4th 683, 690.) A reasonable
juror could have concluded that the unprovoked and close-range shooting was done
in a manner suggesting a preconceived design to kill.
As to Solis, he
was similarly shot without provocation.
He was driving when he heard a gang challenge, “Fuck Tramps.†This shows that the shooter thought that
Solis was a member of the 38th
Street gang, thus
providing a motive for the attempted murder.
(See People v. Sanchez, supra,
26 Cal.4th at p. 849.) Solis was also
shot at relatively close range. He
estimated that the shooter was just 13 feet from him.
Defendants
characterize this evidence as showing nothing more than rash, spontaneous
shootings. Defendants just happened upon
the victims, they argue. That, however,
was one view of the evidence. Another
reasonable view was that they saw Zelaya and Fajardo and deliberately set upon
them after emerging from the alley.
Similarly, Solis was in his car when he was shot. Premeditation and deliberation may occur over
a very short period of time. There was
certainly time for such thought to occur between the time defendants issued
gang challenges to the victims and the time the victims gave an unsatisfactory
response or, in Solis’s case, no response at all.
Defendants also
decry the use of gang evidence to show support premeditation. Both shooting incidents, as well as the
Gonzalez attempted murder of which defendants were found not guilty, were connected
by Officer Ruiz, the gang expert. He
explained that 38th Street was a rival of defendants’ gang, Barrio Mojados. All three incidents involved gang challenges. Zelaya was asked where he was from before
being shot; “Fuck Tramps†was shouted before Solis was shot; and Gonzalez was
accused of being from 38th
Street before he was shot,
and a “W†(a hand sign associated with Barrio Mojados) was thrown after he was
shot. This evidence, coupled with the
gang expert’s testimony, gave rise to a reasonable inference that these Barrio
Mojados gang members were actively looking for and deliberately engaging in
violent confrontations with people who were or who they perceived to be members
of a rival gang. “A studied hatred and
enmity, including a preplanned, purposeful resolve to shoot anyone in a certain
neighborhood wearing a certain color, evidences the most cold-blooded, most
calculated, most culpable, kind of premeditation and deliberation.†(People
v. Rand (1995) 37 Cal.App.4th 999, 1001.)
We therefore
conclude that sufficient evidence supports the premeditation findings.
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
joins in any argument applicable to him made by Navarro.
was unavailable to testify at trial. His
preliminary hearing testimony was read to the jury.
