P. v. Lopez
Filed 9/21/12 P. v. Lopez CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
VINCENT LOPEZ,
Defendant and Appellant.
B236174
(Los Angeles
County
Super. Ct.
No. KA091626)
APPEAL from a judgment of the Superior
Court of
County, Bruce F. Marrs, Judge.
Affirmed in part, reversed in part, and remanded.
Richard D. Miggins, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney
General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant
Vincent Lopez (defendant) was convicted of first
degree murder (Pen. Code, § 187, subd. (a)
not substantial evidence to support
the jury’s findings that he committed the crime for the benefit of the gang,
and the trial court erred in imposing a 10-year section 186.22, subdivision
(b)(1)(C) enhancement. We hold that
there is sufficient evidence to support the jury’s findings that defendant
committed the crime for the benefit of the gang, and that the trial court erred
in imposing the 10-year section 186.22, subdivision (b)(1)(C) enhancement.
BACKGROUND
A.
Factual
Background
City of Pomona
Police Department Officer Vaneric Mendoza testified
that on August 14, 2010,
just after midnight, he was dispatched
to a “shots fired†and “man down†in the area of Holt
Avenue and Weber Street
in the City of Pomona. When Mendoza
arrived at the location, he saw someone, later identified as Ramiro Chavez,
lying face down on the ground, unconscious, and covered in blood from gunshot
wounds. Alejandra Prado, Chavez’s
girlfriend, was on top of Chavez crying hysterically.
Officer
Mendoza testified that Prado told him the person who shot Chavez was, inter
alia, an Hispanic male with a shaved head, and wearing a white shirt and
traveling in a dark van. Officer Mendoza
broadcasted that information over the police radio. Officer Mendoza testified that Prado told him
one male initially shot Chavez, and then a second male exited the van and
additional shots were fired.
Prado
testified that she was speaking with Chavez, who was wearing a hat with a “Pâ€
on it, on Weber Street near
Holt Avenue when a blue van
with its headlights off moved very slowly passed them and stopped. Chavez told Prado to walk home, which she
started to do. Prado turned around and
saw the van’s front seat passenger, later identified as defendant, exit the
van, followed by a rear seat passenger of the van, later identified as Miguel
Ayala. They approached Chavez and
started to talk to him, but Prado was too far away to hear what was said. Officer Mendoza testified that Prado told him
they were arguing with Chavez. Prado
testified that she continued walking, but turned back when she heard three
gunshots. Prado saw Chavez fall to his
knees, and defendant had his right arm extended, holding and pointing
something. Defendant had his shirt
pulled up over his to his nose, covering the bottom portion of his face. Ayala
fired three more shots at Chavez. Defendant and Ayala returned to the van and drove away, turning left onto Holt
Avenue.
City of Pomona Police Department Crime Scene Investigator Adam MacDonald
testified that he went to the incident scene and found Chavez lying face down
in a “pool of blood†surrounded by eight .40 caliber shell casings.
City of
Pomona Police Department Officer Brad Paulson testified that he was in a patrol
vehicle on his way to the scene of the shooting when he was advised that a blue
van was possibly involved in the shooting, and it was last seen leaving the
scene, traveling east on Holt Avenue. As
Officers Paulson approached the intersection of White and Holt Avenues, he saw
a blue van traveling east on Holt Avenue
that Officer Paulson thought might match the description of the van involved in
the shooting.
Officer
Paulson testified that he activated the vehicle’s police lights and siren, and
the van pulled over and stopped. Officer
Paulson exited his vehicle and ordered that the van’s occupants put their hands
up. Officer Paulson saw three occupants
of the van: the driver, the defendant (who was a passenger in the front seat),
and Ayala (the rear seat passenger).
While waiting for other officers to arrive before ordering the van
occupants out of the vehicle, Officer Paulson saw the van occupants moving
around in the vehicle, and that defendant “kept reaching down to the
floorboard†of the van. Officer Paulson
repeatedly ordered the van’s occupants to put their hands up.
Officer
Paulson testified that when the other officers arrived, the van’s occupants
were ordered to come out of the vehicle.
The three van occupants “appeared very nervous and kind of scared.â€
Investigator
Adam MacDonald searched the van and found a .40 caliber semi-automatic Glock
pistol underneath defendant’s seat, a .22 caliber revolver in the seat pocket
behind defendant’s seat, and a baseball cap with a “B†on it. The .22 caliber revolver had in it one live
cartridge and five spent casings.
Officer Paulson testified that he searched the van occupants and found
cellular telephones in the pockets of Ayala and the driver.
City of Pomona
Police Department Officer Christopher Blank testified
that he drove Prado to the scene of the shooting and Prado identified defendant
as the first person who shot Chavez.
Prado testified that she identified defendant based on his clothing, his
muscular body, and the top portion of his face.
Prado also identified the van as the vehicle involved in the shooting
incident.
City of Pomona
Police Department Officer Jaime Martinez testified
that he participated in a search of defendant’s residence, and his partner
found a yellow container in defendant’s bedroom. It contained live ammunition of various calibers,
two letters addressed to defendant, and defendant’s school identification. In another bedroom across the hall from
defendant’s bedroom, Officer Martinez found photographs of “what appeared to be gang members.â€
City of Pomona
Police Department Detective Tim Aguirre testified that
he found a third cellular telephone on the van’s floorboard between the
driver’s seat and the front passenger seat.
The screen saver on that cellular telephone was a photograph of
defendant and a fist on which a blue “B†was painted. Officer Aguirre testified that defendant
identified that telephone and told Officer Aguirre he, defendant, left it in
the van.
Detective
Aguirre testified that he found a text message on Ayala’s cellular telephone,
addressed to Tony Main, stating, “My neighbor’s house with Vincent, correct?â€
cellular telephone and Ayala’s cellular telephone. On August
13, 2011, Ayala sent a text message addressed to Vincent, stating,
“I think Luis is going over there. Don’t
tell them that you have the .40, right
there.†Vincent responded by texting
Ayala, stating, “Don’t trip.†Shortly
thereafter, Ayala sent a text to Vincent, stating “Tell this fool let’s go to
the west.â€
Los Angeles
County Sheriff’s Department Deputy Sheriff Edmund Anderson testified as the
prosecutor’s firearms identification expert.
Sheriff Anderson analyzed the two handguns, the spent casings, and the
fired bullets recovered from the coroner’s office removed from Chavez during
his autopsy. He opined that all eight of
the spent casings were ejected from the .40 caliber Glock pistol recovered from
under defendant’s seat, one of the bullets was fired from that pistol, and
three of the bullets “could have been†fired from it. Sheriff Anderson also opined that two of the
bullets recovered from the coroner’s office had been fired from the .22 caliber
revolver.
Susan
Frances Selser, a Los Angeles County Coroner’s office medical examiner,
testified that she performed an autopsy on Chavez. She observed 14 gunshot wounds. She determined that the cause of death to be
multiple gunshot wounds; of the 14 gunshot wounds, seven were fatal.
2
City of
Pomona Police Department Detective Greg Freeman and Los Angeles County Sheriff’s
Department Detective Gerald Groenow testified as the prosecution’s gang
experts. Detective Groenow opined that
defendant was a member of the Bassett Grande Los Night Owls gang (Bassett).
Detective
Groenow testified that Bassett had over 300 members. Bassett used, inter alia, the symbol
“B.†Bassett’s primary activities
included vandalism, robbery, murder, attempted murder, and narcotic offenses. Detective Groenow identified two Bassett
members who, in 2008, were convicted of
murder, and another Bassett member who, in 2008 was convicted of attempted murder.
Detective
Groenow testified that Frank Lira, a Bassett member, wrote defendant a letter
stating that when defendant was released from prison “they’re gonna get
together and kick it B style,†which means they’re going “to kick it†Bassett
style. Lira wrote defendant another
letter stating that Lira was giving defendant “his respects in a true blue
fashion,†referring to the blue color to which Southern California gangs were
aligned.
Detective
Groenow testified that defendant had a tattoo of a “B,†aligning himself with
Bassett, and an Aztec symbol, aligning himself with Latino gangs. Defendant’s screen saver on his cellular
telephone was a picture of a fist with a blue “B†painted on it, which
indicated Bassett affiliation. Detective
Groenow identified three pictures found in defendant’s home as being of a
former Bassett member, and other gang members.
Defendant had a MySpace page on which defendant goes by the moniker
“Little Husky†and made references to Bassett.
Detective
Groenow testified that Bassett had an antagonistic relationship with the West
Side Pomona gang (WSP) resulting
from a deadly shooting of one or more Bassett members that occurred in
2007. Detective Groenow would expect
that Bassett would retaliate by going into WSP’s territory and “shoot
somebody.â€
The
prosecutor asked Detective Groenow to assume, hypothetically, facts closely
tracking the evidence concerning the shooting of Chavez. Based on those facts, Detective Groenow
opined that the shooting would be done for the benefit of the Bassett gang,
stating, “[I]t benefits the person that’s shooting because it shows that this
guy’s willing to put in work for the gang.
He’s willing to go out there and put in the work, to do the shootings or
whatever he’s doing. [¶] That basically gives him more prestige,
more—he’s glorified into the gang.
People look up to him for what he’s doing. He’s looked up to by the other gang
members. That makes him look good with
the other gang members. [¶] The gang, it benefits them because everybody
knows Bassett did this. Bassett is the
gang. They retaliate, they’re willing to
put in work. So everybody in the area
knows that Bassett is willing to defend their selves, defend their area and do
what’s necessary, you know, as a gang.
[¶] Makes it easier for them to
recruit. People look up to these guys. Gangs work on fear and intimidation. They believe that, you know, people fearing
them and being intimidated is respect for them.
They take respect as the same thing.
So they believe they’re being respected for what they’re doing. But actually what they’re doing is causing
fear and intimidation is the area.†In
response to being asked by the prosecutor how people in the area would know
that Bassett committed the crime, Detective Groenow testified, “Oh, it gets
back. Pomona will find out. If this guy was a Pomona gang member, it’ll
spread through there. It just spreads.â€
Detective
Freeman testified that Bassett members lived in the City of Pomona. Bassett was feuding with the WSP gang
resulting from a deadly shooting of one or more Bassett members that occurred
several years ago. Gang members in the
City of Pomona, of any gang, often wore baseball caps with a “P†on them to
represent Pomona. Weber Street in the
City of Pomona was the eastern border of WSP territory. In the City of Pomona, the phrase
Based on
the prosecutor’s question posed to Detective Freeman asking him to assume,
hypothetically, facts closely tracking the evidence concerning the shooting of
Chavez, Detective Freeman opined that the shooting was “gang purposeful,â€
stating, “[W]hen you referenced to let’s go to the West Side, and then you’re
identifying a target or a local area or a turf, and then ultimately the same
person goes into that turf and they kill a young man wearing a “P†hat, I mean
those are pretty big indicators that it’s gang related or benefits the gang.†The prosecutor asked Detective Freeman
whether gang members always first determine whether the “target†of the
shooting is actually a member of a rival gang, Detective Freeman responded
that, “[T]hey assume. . . .
[T]hey see what they perceive to be an enemy or a possible target and go
about their mission.â€
Procedural
Background
The District Attorney of Los
Angeles County filed an information charging defendant with murder in violation
of section 187, subdivision (a) (count 1).
The District Attorney alleged that defendant committed the crime for the
benefit of a criminal street gang with the intent to assist in the criminal
conduct of its members in violation of
section 186.22, subdivision (b)(1)(C), and that he personally used a
firearm within the meaning of section 12022.53, subdivisions (b)-(d), and
(e)(1).
Following a trial, the jury found
defendant guilty of first-degree murder, and found that the special allegations
were true. The trial court sentenced
defendant to state prison for a term of 50 years to life, consisting of a term
of 25 years to life on count 1, and 25
years to life for the firearm enhancement pursuant to section 12022.53,
subdivision (d). A 10-year gang
enhancement pursuant to section 186.22, subdivision (b)(1)(C), and the other
enhancements, were imposed and
stayed.
DISCUSSION
A. Gang
Enhancement
Defendant contends that there is
not substantial evidence to support the jury’s finding that he committed the
murder for the benefit of a gang. We
disagree.
1. Standard
of Review
Defendant’s contention that
insufficient evidence supported the jury’s findings on the gang enhancement is
reviewed under a substantial evidence standard.
“‘In reviewing the sufficiency of evidence under the due process clause
of the Fourteenth Amendment to the United States Constitution, the question we
ask is “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.â€â€™ ([People v.] Rowland [(1992)] 4
Cal.4th [238,] 269 . . . .)
We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of
fact could have found defendant guilty beyond a reasonable doubt, the appellate
court “must view the evidence in a light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.â€â€™ (People
v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d
738].)†(People v. Young (2005)
34 Cal.4th 1149, 1175.) In reviewing the
sufficiency of the evidence, “a reviewing court resolves neither credibility
issues nor evidentiary conflicts.
[Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.]†(Id. at p. 1181.)
only if ‘“‘“upon no hypothesis whatever
is there sufficient substantial evidence to support [the conviction].â€â€™â€â€™ (
547, 577.) This standard of review
applies to gang enhancement findings. (
1499, 1508; People v. Villalobos
(2006) 145 Cal.App.4th 310, 321-322.)
Section
186.22, subdivisions (b)(1) and (b)(4) provide for a sentence enhancement for
any person who is convicted of a felony “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .†Section 186.22,
subdivision (f) defines “criminal street gang†as “any ongoing organization,
association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common identifying sign
or symbol, and whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity.†The criminal acts included in subdivision (e)
include the commission of or attempted commission of robbery (§ 186.22, subd.
(e)(2)), homicide or manslaughter (§ 186.22, subd. (e)(3)), the sale, possession for sale,
transportation, manufacture, offer for sale, or offer to manufacture controlled
substances (§ 186.22, subd. (e)(4)), and felony vandalism (§ 186.22, subd.
(e)(20)).
A gang
expert properly may testify about gang affiliation and activity where such
evidence is relevant to an issue of motive or intent. (See People
v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (
“whether and how a crime was committed to benefit or promote a gang.†(Killebrew,
supra, 103 Cal.App.4th at p.
657.) Similarly, a gang expert may
testify about whether a defendant acted for the benefit of a gang, even though
the question is an ultimate factual issue in the case, if such matters are
beyond the jury’s common experience. (
494, 506-509; Killebrew,
Evid. Code, § 805 [“Otherwise admissible expert opinion testimony which
embraces the ultimate issue to be decided by the trier of fact is
admissibleâ€].) “‘Expert opinion that
particular criminal conduct benefited a gang’ . . . can be sufficient to
support the . . . gang enhancement. (People
v. Albillar [(2010)] 51 Cal.4th [47,] 63.)â€
(People v. Vang (2011) 52
Cal.4th 1038, 1048.)
There was
substantial evidence to support the gang enhancement. Detective
Groenow opined that defendant was a member of Bassett. Defendant made references to Bassett on his
MySpace page. Detective Groenow testified
that Bassett used, inter alia, the symbol “B,†and defendant had a tattoo of a
“B,†and a screen saver on his cellular telephone depicting a fist on which a
blue “B†was painted. Lira, a Bassett
member wrote defendant a letter stating that when defendant was released from
prison “they’re gonna get together and kick it B style,†which Detective
Groenow testified means they’re going “to kick it†Bassett style. Lira wrote defendant another letter stating
that Lira was giving defendant “his respects in a true blue fashion,†and
Detective Groenow testified that refers to the blue color to which Southern
California gangs were aligned. Pictures
of a former Bassett member and other gang members were found in defendant’s
home.
The record
contains substantial evidence that the shooting was committed for the benefit
of, at the direction of, or in association with Bassett, with the specific
intent to promote or further criminal conduct by Bassett members. Detective Freeman testified that Bassett was
feuding with the WSP gang, whose “territory†was just west of Weber Street in
the City of Pomona. Detective Groenow
testified that because of the incident leading up to the “feud†between the two
gangs, he would expect that Bassett would retaliate by going into WSP’s
territory and “shoot somebody.â€
Defendant’s cellular telephone contained a text message from Ayala
stating, “Tell this fool let’s go to the west.â€
Detective Freeman testified that in the City of Pomona, the phrase
Detective
Freeman testified that gang members in the City of Pomona, of any gang, often
wore baseball caps with a “P†on them.
Chavez wore a hat with a “P†on it when defendant shot him. In response to the prosecutor’s question of
whether gang members always first determine whether the “target†of the
shooting is actually a rival gang member, Detective Freeman testified that gang
members “assume†that the target of the shooting is their “enemy or a possible
target†based upon their perception.
Detective
Groenow opined that the shooting would be done for the benefit of the Bassett
gang. Detective Groenow said that the
shooter is “looked up to†by the other gang members. The shooting benefits Bassett, Detective
Groenow opined, because everybody in the area believes that Bassett is willing
to defend themselves, defend their area, and “do what’s necessary.†Bassett also benefits from the shooting
because “people fear[] them and are being intimidated [by them] which Bassett
[considers to be] respect . . . .†The shooting, Detective Groenow explained,
makes it easier for Bassett to recruit members.
Detective
Freeman opined that the shooting would be done for the benefit of the Bassett
gang because the text message on defendant’s cellular telephone saying “let’s
go to the west,†and the shooting having occurred on the rival gang’s “turfâ€
killing a young man wearing a “P†hat, “are pretty big indicators that it’s
gang related or benefits the gang.â€
Defendant
relies on In re Frank S. (2006) 141
Cal.App.4th 1192. In that case, the
police conducted a traffic stop of a minor riding a bicycle, and discovered
that the minor possessed a knife. The
minor admitted gang membership. The
juvenile court sustained a petition alleging that the minor carried a concealed
dirk or dagger, and found true a gang enhancement allegation. (Id.
at pp. 1194-1195.) The only evidence
offered to support the gang enhancement was the fact of the minor’s gang
affiliation, and the testimony of a gang expert that “a gang member would use
the knife for protection from rival gang members and to assault rival
gangs. When asked how the minor’s
possession of the knife benefited the [minor’s gang], [the expert] responded it
helps provide them protection should they be assaulted.†(Id.
at pp. 1195-1196.) The court stated,
“The prosecution did not present any evidence that the minor was in gang
territory, had gang members with him, or had any reason to expect to use the
knife in a gang-related offense.†(
holding such “weak inferences and hypotheticals†insufficient to establish the
minor possessed the knife for the benefit of the gang. (Ibid.)
In re Frank S.,
resemblance to the facts in this case.
Here, substantial evidence—not mere speculation—supported the inference
that defendant committed his crimes for the benefit of his gang. (See People
v. Martinez (2008) 158 Cal.App.4th 1324, 1333.) There was sufficient evidence that defendant
shot an apparent City of Pomona gang member in WSP territory.
843, upon which defendant relies, is distinguishable. In that case, the defendant and his
co-defendant were stopped in a stolen truck.
The defendant was charged and convicted for, inter alia, receiving a
stolen vehicle (§ 496d), and the jury found that crime was committed for the
benefit of, at the direction of, or in association with a criminal street gang,
and with the specific intent to promote, further, or assist in criminal conduct
by gang members. (Id. at p. 846.) A gang
expert testified that because the defendant and his co-defendant were gang
members and they were stopped in the heart of gang territory, the circumstances
of the present crimes would benefit their gang.
(Id. at pp. 847-848,
849.) The court found the expert’s
opinion testimony did not constitute substantial evidence to support the jury's
finding on the gang enhancement. (
been different had the expert identified the crime the defendant committed as
one of the activities of the gang. (
and Detective Groenow testified that murder was one of Bassett’s primary
activities.
Defendant’s
reliance on People v. Ochoa (2009)
179 Cal.App.4th 650, is also misplaced.
In that case, the court reversed the jury’s true findings on gang
allegations in connection with the defendant’s conviction for carjacking and
being a felon in possession of a firearm stating, in part, that “there was no
evidence that the victim of the crimes was a gang member . .
. .†(Id. at p. 662.) Here,
defendant shot one who appeared to be a City of Pomona gang member in WSP
territory.
B. Section
186.22, Subdivision (b) Enhancement
Defendant
contends, and the Attorney General concedes, that trial court erred in imposing
a 10-year section 186.22, subdivision (b)(1)(C) enhancement because it should
have imposed instead a minimum parole eligibility term pursuant to subdivision
(b)(5). We agree.
Defendant
was convicted of murder and the trial court sentenced him to state prison for
an indeterminate term of 25 years to life, and imposed and stayed a ten-year
section 186.22, subdivision (b)(1)(C) enhancement. Subdivision (b)(5) provides, as relevant
here, “any person who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life shall not be paroled
until a minimum of 15 calendar years have been served.†A defendant who commits a gang-related first
degree murder, punishable by imprisonment in the state prison for life, is not
subject to a 10-year enhancement under section 186.22(b)(1)(C), but instead is
subject under subdivision (b)(5) to a minimum term of 15 years before defendant
may be considered for parole. (
1004, 1010.)
The
abstract of judgment should be amended to delete the section 186.22,
subdivision (b)(1)(C) enhancement and to impose instead a minimum parole term
of 15 years pursuant to section 186.22, subdivision (b)(5).
We reverse
the section 186.22, subdivision (b)(1)(C) enhancement imposed and stayed by the
trial court. We remand the matter to the
trial court to amend the abstract of judgment to delete the section 186.22
(b)(1)(C) enhancement and to impose instead a minimum parole term of 15 years
pursuant to section 186.22, subdivision (b)(5).
In all other respects, the judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] Vincent
is defendant’s first name.
