P. v.
Filed 1/11/13 P.
v. Martinez CA1/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE GARCIA MARTINEZ,
Defendant and
Appellant.
A129840
(Contra Costa County
Super. Ct. No. 50809004)
I. INTRODUCTION
This case arises out of gang
violence in Richmond and San Pablo that resulted in five deaths. Appellant Jose Garcia Martinez appeals from
the judgment following a jury trial in which he was convicted of one count of
second degree murder and of conspiracy to commit the assault that resulted in
the victim’s death. Appellant contends
the trial court erroneously instructed the jury on invalid theories of second
degree felony-murder, thereby depriving him of
reversal. We will affirm.
II. FACTUAL AND PROCEDURAL
BACKGROUND
On August 5, 2008, the
County District Attorney filed an indictment charging appellant, Frank R.,
and Fernando Jesus Garcia with seven felonies:
(1) murder of Jose Mendoza-Lopez on January 26, 2008, with gang
enhancement and gun-discharging allegations (Pen. Code, §§ 187, 186.22,
subd. (b)(1), 12022.53, subds. (b), (c), (d), (e)(1))
(count 1); (2) conspiracy to commit murder and
187, 245, subd. (a)(1)) with a gang allegation (§ 186.22, subd. (b)(1)); the
charge named 10 co-conspirators and alleged 19 overt acts committed from
December 22, 2007, through April 26, 2008 (count 2); (3) engaging in a
182.5) (count 3); (4) murder of Antonio Centron on December 22, 2007 with a
gang allegation (§§ 187, 186.22, subd. (b)(1)) (count 4); (5) murder of Luis
Perez on February 16, 2008, with a gang allegation (§§ 187, 186.22, subd.
(b)(1)) (count 5); (6) murder of Lisa Thayer on February 27, 2008, with a gang
allegation (§§ 187, 186.22, subd. (b)(1)) (count 6);and (7) murder of Rico
McIntosh on April 26, 2008, with a gang allegation (§§ 187, 186.22, subd.
(b)(1)) (count 7).
Only appellant stood trial. Co-indictee Frank R. pleaded guilty to being
an accessory in return for his testimony against appellant. Co-indictee Garcia fled immediately after the
killing of Mendoza-Lopez and remained at large.
On June 7, 2010, the court granted the prosecutor’s motion to amend the
indictment to add a strike prior allegation (§§ 667, subd. (a)(1), 1170.12)
against appellant based on a prior conviction for assault by means of force
likely to produce great bodily injury with a gang enhancement finding.
At trial, the prosecution pursued a
theory that all seven counts were the result of Sureño gang members conspiring
to kill Norteños. The jury convicted
appellant of second degree murder in the shooting death of Mendoza-Lopez at a
party on January 26, 2008. The jury also
convicted appellant of conspiracy and found true two overt acts relating to
events on that date: appellant attended
a party with two other gang members, and appellant alerted others that the
victim was wearing red. The jury did not
return a finding on the two other overt acts related to the January 26, 2008,
party: that appellant and three other gang members approached the victim and
shouted the name of their gang, and that appellant shot the victim. The jury returned true findings that the
murder was committed for the benefit of the gang and that a principal
intentionally discharged a firearm, causing Mendoza-Lopez’s death. The jury returned a not true finding that
appellant discharged the firearm. The
jury also convicted appellant of being a member of a criminal street gang.
Prosecution Case
Diana Salazar knew the victim, Jose
Mendoza-Lopez, and his family. She
testified that he was not involved with street gangs. On Saturday, January 26, 2008, a group of
friends and acquaintances including Salazar, the victim, Mayra Lainez, Juan
Ayala, Luis Anaya, Noel Castro, Maria Vargas, and Francisco celebrated Ayala’s
birthday at his house. None of them was
a member of a gang. Mendoza-Lopez was
wearing shoes and a hat that were red or partially red, according to several
witnesses.
Eight of them drove in two cars to a
party at the San Pablo apartment of their friends, Paco and Francisco. Some went inside, while Salazar, the victim,
Lainez, Castro, and Anaya stayed outside.
Lainez testified that she stayed outside because the presence of several
Hispanic men who looked like gang members, dressed in blue and wearing hoodies
and baggy jeans, made her feel uncomfortable.
Blue was the Sureños’ color.
Anaya testified that he stayed outside because Noel was smoking.
Lainez testified that, after being
outside with the victim and Anaya for about three to five minutes, a man walked
toward them with a gun. Lainez had seen
the man outside when they first arrived.
He was with Ingrid Martinez, whom Lainez knew and was wearing a blue and
white striped shirt. When he approached
them, however, he was wearing a hoodie and a beanie. Martinez tried to stop him, pulling on him
and telling him no. The man pulled a gun
from the front center pocket of his hoodie and shot Mendoza-Lopez four to five
times, then said, “RST on me,†in good English.
Lainez was standing next to the victim and was within 11 feet of the
gunman. She got a good look at the
gunman’s face; he had no tattoos.
Anaya testified that he saw six
people come out of the apartment toward them.
They said, “Southside RSTs,†and then one pulled a gun from his black
hooded sweater and started shooting. Mendoza-Lopez
had said that they were going to cause problems. Anaya was on Mendoza-Lopez’s left, about 8 to
10 feet from the shooter, and Castro was on his right. The shooter was short, around 5 feet 4 inches
or 5 feet 5 inches. Fernando Garcia
(Danger) was around 5 feet 6 inches.
Garcia and appellant were next to each other, both wearing sweaters, and
they generally resembled each other.
Anaya was not sure who fired the gun.
He was nervous and did not want to testify because he knew of someone, a
long time ago, who testified and was killed two weeks later. Anaya saw Mendoza-Lopez get shot and fall
down. Anaya ran inside the apartment
after the third shot. When Anaya went
back outside, the shooter’s friends started hitting him. Anaya asked “why had you done that because we
were not gang members . . . .†They did not respond; they just hit him.
Salazar testified that she had just
taken half a step into the apartment when she heard three or four
gunshots. She turned and saw
Mendoza-Lopez falling. Vargas ran out of
the apartment and argued with the shooter.
Salazar did not see the shooting, but she thought he was the shooter
because of his gestures and because he said “RST on mine†and that
Mendoza-Lopez was wearing the wrong color, which he said in English. When Vargas asked him “why he had done what
he did, he said that he was wearing the wrong color on the wrong block and that
it was RST on his. And he made a
gesture, like, covering the gun, put the hoody [sic] on, turned around and ran
off.†He also said, “I don’t mess with
girls.â€
Salazar understood the man
clearly. He was speaking in English, and
she spoke English and Spanish. She did
not recall Spanish being spoken. Salazar
did not see a gun in the man’s hand, just a gesture to indicate that he had
hidden it in his pants. He was 5 feet 9
inches, light-skinned, had short hair, and was in his early 20’s. She thought he was the shooter because he was
standing by the door.
Salazar then saw three men kicking
her friend Anaya on the ground. One of
them was a bit heavy with a lot of long facial hair. When Salazar said, “stop,†he looked up. He was darker skinned, older looking, bald on
top with a long goatee.
Salazar checked to see if
Mendoza-Lopez was breathing.
Mendoza-Lopez made a gesture, then put his head down and stopped
moving. Salazar then called 911.
Appellant’s friend Ingrid Martinez
testified about the shooting. She used
to hang out with Sureño gang members including appellant (Cobra), Fernando
Garcia (Danger), and Victor Cervantes (Creeper). Appellant claimed “SSL,†Southside
Locos. Appellant spoke Spanish and only
some words in English; Martinez had a hard time understanding him.
On January 26, Martinez was with
friends Ariana and Carla at an upstairs apartment party. Cobra, Danger, and Creeper were there. Ariana and Cobra came upstairs, and Cobra
told the other men that someone was wearing red. Everyone went downstairs where Cobra, Danger,
and Creeper claimed their Sureño gangs.
Mendoza-Lopez, who was downstairs with Ayala and Castro outside a
downstairs apartment, told Danger, “I need to talk to you.†Martinez tried to tell Cobra and Danger that
they were not Norteños, they were nothing, but they did not listen to her. She was afraid something would happen.
Danger said, “okay.†And then “they shot.†Just before the shooting, Martinez heard “RST
on me†or “RST on mine†in English.
Martinez saw Cobra shoot Mendoza-Lopez and heard three gunshots. She did not see Danger with a gun.
After the shooting, everyone
ran. Martinez went to Danger’s house
with Ariana and Carla, where she stayed the night. Her mother called in the morning and told her
the police were at her house. Martinez
called Cobra (appellant), told him the police were at her house, and asked,
“why did he do that in front of all that people and putting me into this.†Appellant said he was sorry but not to say
anything. Appellant did not admit the
shooting.
Martinez gave a statement to the
police. She was scared and trying not to
snitch. She was also nervous because of
threats from appellant’s brother. She
then went to Mexico for a year, came back, and then moved out of state. Since then, she has not hung out with gang
members. She was certain that appellant
shot Mendoza-Lopez.
Frank R. testified that he was at
the upstairs party on January 26, 2008, with appellant and the others. He had known appellant since 2006. He always spoke to appellant in Spanish since
appellant could only speak a few words of English. After about 45 minutes, he left that party
shortly before 10:00 p.m. with a couple of friends to go to another one
nearby. He had been at the other party
for about half an hour when he learned that shots had been fired at the first party. He and the other two friends returned to the
apartment and saw that the police had arrived.
Frank R. went to Danger’s
house. Appellant and others were
there. Appellant had a gun in his
waistband. Appellant told Cervantes that
he killed the victim because he was disrespecting him. Appellant also said the victim was wearing
red. When Frank R. asked what happened,
appellant said he “fired some shots to this guy.†Appellant looked like he was about to laugh,
but he also looked worried. Frank R.
left Danger’s house after about an hour.
The next day, appellant called Frank
R. and asked for a ride. Appellant told
him the police had picked up Martinez and that he told her that if she said
something, she would pay for it.
Frank R. was arrested in 2008 and
charged along with appellant for five homicides and two counts of
conspiracy. In return for testifying, he
pled guilty in juvenile court for being an accessory after the fact. He entered witness protection; the District
Attorney paid for his apartment and some living expenses. He testified under a grant of immunity.
Victor Cervantes (Creeper) testified
that, on January 26, he and Frank R. and others went to a party at an apartment
complex. There, they hung out with
appellant, Danger, Stranger (Danger’s older brother), Martinez, and a couple of
others. They had not been there before
because it was Norteño turf. The party
was “weird†because ML’s (Mexican Locos), VFL’s (Varrio Frontero Locos), and
RST’s (Richmond Sur Trece) all hung out together. People were drinking and dancing.
After about 35 to 45 minutes, Frank
R. and two others left to go to another party.
Cervantes and others stayed.
Appellant came running upstairs as if there were something exciting and
said in Spanish “that there were some busters downstairs.†Appellant, Danger, Stranger, and someone else
ran downstairs. Cervantes walked
downstairs and heard Danger arguing with Mendoza-Lopez, saying he had told him
not to wear red in Richmond. Then
Cervantes heard three gunshots. He heard
Danger say in English, “I already told you about wearing all that red in
Richmond.†Cervantes did not recall
anyone say “RST.â€
Cervantes testified that he saw
Danger and appellant facing Mendoza-Lopez and arguing with him. Both Danger and appellant were wearing black
hoodies and blue jeans. Danger was on
the right-hand side; appellant was on the left.
Cervantes could not see who had the gun when he heard the gunshots. He testified that the person on the left,
i.e., appellant, had the gun. He
admitted that he might have told police the positions were reversed, i.e., that
Danger was on the left and appellant on the right.
Danger told Cervantes that if he
said anything, they would kill him.
Cervantes opened his closet door and an AK-47 fell out. Cervantes said he did not see anything. Frank R. told Cervantes that he thought the
shooter had a tattoo over his right eyebrow, which would have been Danger.
Cervantes agreed to testify against
appellant in return for a plea bargain in a 2007 case involving
a strike felony and accepted a suspended six-year prison term. After this, he went into witness protection
and had received just under $20,000 from the District Attorney’s office. He testified after being granted
immunity.
On January 27, Mayra Lainez was
interviewed by police and shown a photographic lineup. She identified appellant as the shooter, but
did not remember the faces of the others who were with him. Lainez told police she had known
Mendoza-Lopez for two years and did not know him to be a gang member or to have
friends who were gang members. Lainez
initially described the shooter to police as being 5 feet 10 inches, but
appellant is much shorter than that.
Ingrid Martinez’s boyfriend because Martinez was with him and they were hugging
each other when Lainez first arrived at the party.
At trial, on direct examination,
Lainez stated that she was sure appellant was the shooter. But after being cross-examined on the height
estimate she gave police, and seeing that appellant was significantly shorter
than her estimate, she testified that she was no longer positive that appellant
was the shooter.
On January 28, Officer Bradley
Lindblom conducted more photographic lineups.
Maria Vargas did not identify anyone.
Diana Salazar identified photo number six (appellant) as the shooter; she
was positive. She also identified
Garcia’s photo as one of the people with the shooter. She did not identify Cervantes’ or Frank R.’s
photos. Neither Ayala nor Anaya
identified anyone.
Anaya at first testified that he
could not see the shooter’s face. Then
he identified appellant as the shooter.
He did not identify appellant to the police because he was afraid
something would happen to his family.
After initially identifying appellant, Anaya said, “it looks like him,â€
but he was not sure. Anaya explained
that both appellant and Danger were wearing sweaters and “I really don’t know
if he shot or the other one.â€
Detective Robert Pamplona and
Detective Scott Cook of the San Pablo Police Department interviewed Ingrid
Martinez on January 27. She seemed
scared. She said she had been at a party
with Cobra (appellant), Danger (Garcia), Creeper (Cervantes), Duende (Frank
R.), Ariana, and Carla at an upstairs apartment at the complex where the
shooting occurred. Martinez said the men
she was with were Sureño gang members and they were going downstairs to
confront someone who was wearing red, the color of the rival Norteño gang. She said Danger was affiliated with RST, and
appellant was associated with SSL.
Martinez said that “gang names were all called out by all of her
associate friends. And she said then
Cobra shot the guy a couple of times.â€
Pamplona testified that Martinez immediately stopped and said, “I didn’t
mean Cobra. I don’t know which one
shot.†Martinez recognized Ayala and
Castro, who were with the victim.
Martinez tried to grab her friends because she knew the people they had
a problem with and knew they were not Norteños.
After the gunshots, everyone from
the party ran. Martinez got into a car
and they drove away. She went to
Danger’s house, where she saw Cobra with a gun; she saw the black handle of a pistol
in his waistband. After her mother
called her, Martinez called Cobra and confronted him. He apologized for getting her involved, but
did not admit the shooting. He also told
her not to say anything to the police or she would be labeled a snitch.
Martinez said Cobra, Danger, Duende,
and Creeper were all Sureño gang members.
She identified Cobra’s and Danger’s photographs.
Appellant was arrested on January
31. From his bedroom, police recovered a
baggie containing six live .357 magnum handgun rounds, three pairs of baggy
blue jeans, a blue and white striped shirt, two large black hooded sweatshirts,
and a jersey with the number 13. From
appellant’s vehicle, police recovered several photographs of appellant wearing
blue, holding various firearms, and making or “throwing a three†with his
hand.
Officer Robert Brady testified that
he executed a search warrant at Danger’s house on January 31. He located gang indicia in the house. They never located Danger, and were still
looking for him.
Jorge Sanchez testified that he knew
appellant. Sanchez sometimes hung out
with Duende, Creeper, and other ML’s.
Danger was an RST. Castro said
RST’s shot Mendoza-Lopez. Ingrid
Martinez told Sanchez she saw Cobra shoot a Norteño, Mendoza-Lopez. Sanchez was angry and wanted revenge because
Mendoza-Lopez was his cousin. Sanchez
saw appellant four days after Mendoza-Lopez was killed. Appellant said he was nervous because he had
shot a Norteño, but he did not know the Norteño had Sureño family. He said the victim was wearing red. He also said Martinez had talked to the
police who were looking for him. Sanchez
planned to beat up or kill appellant.
Dr. Ikechi Ogan, who performed the
autopsy, testified that Mendoza-Lopez suffered two gunshot entry wounds: one in his right shoulder/chest region, and
the other in his left thigh. One bullet
perforated the pericardial sac, aorta, left ventricle of the heart, left lung,
diaphragm, and stomach. The other bullet
fractured his femur. The shots were
fired from a distance of no more than two feet.
Mendoza-Lopez had no drugs in his system and a 0.03 percent blood
alcohol level. The cause of death was
multiple gunshot wounds of the torso and thigh.
The testimony of Lucila Navarro was
admitted as relevant to prior uncharged conduct. On May 6, 2007, Navarro was with a group of
friends at Keller Beach. A group of six
to eight men, most wearing blue, jumped her brother Francisco, screaming “Sur
Trece,†and trying to hit him. One of
them hit Francisco in the head with a bottle, and he fell to the ground
unconscious. He was treated at the
hospital. Navarro identified appellant
as one of the assailants. He was wearing
blue and had “SS†and “X3†tattoos on his shoulders. Appellant punched and kicked her brother and
then threw a beer bottle at his chest.
When Francisco fell to the ground and lost consciousness, appellant
repeatedly kicked him in the torso.
When appellant was arrested after
the Keller Beach incident, he identified himself as a Mexican Locos and
Southside Locos gang member. Deputy
Sheriff David Cushman supervised appellant at the jail in Martinez. He described appellant’s English as “less
than limited;†he could not speak whole sentences in English.
Defense Case
Defense witness Dr. Scott Fraser, an
expert in eyewitness identification, testified that people who are certain in
their identification are just as likely to be correct or incorrect as those who
say they are 50 or 75 percent certain.
Thus, confidence is not an accurate predictor of accuracy. When someone experiences a stressful event,
blood flow to the brain decreases and less information is processed. When a weapon is present, it increases stress
and distracts the attention, reducing the accuracy of correct recognition. Errors in identification can occur as a
result of a process known as conscious transference, whereby a person
misidentifies an individual as someone he or she has seen before. Dr. Fraser did not interview any of the
principals in the case.
On July 23, 2010, the jury convicted
appellant of counts 1 through 3 and acquitted him of counts 4 through 7. In connection with count 1, the jury
convicted him of second degree murder of Mendoza-Lopez and found true that the
crime was committed for the benefit of a criminal street gang and that a
principal in the offense used and intentionally discharged a firearm causing
the victim’s death; it found not true that appellant personally and
intentionally discharged the firearm. In
connection with count 2, the jury convicted appellant of conspiracy to commit
murder and to commit aggravated assault; the verdict form did not require the
jury to specify either crime or both as the object[s] of the conspiracy. The jury found true two of the 18 overt acts
alleged, both of which related to the killing of Mendoza-Lopez, and found true
that the conspiracy was to benefit a criminal street gang. In count 3, the jury found that appellant
participated in a criminal street gang.
Because the jury failed to make a
finding on the purpose of the conspiracy, the court subsequently designated the
verdicts on counts 2 and 3 as convictions of conspiracy to commit aggravated
assault. The court found the allegation
of appellant’s prior conviction true and deemed it a serious felony and a
strike prior.
On September 17, 2010, the trial
court sentenced appellant to 60 years to life in state prison as follows: 30 years to life on count 1 (15 years to
life, doubled under Three Strikes); 25 years to life for the gun discharging
allegation; and five years for the prior serious felony. The sentences on counts 2 and 3 were stayed
pursuant to section 654.
On September 22, 2010, appellant
filed a timely notice of appeal.
III. DISCUSSION
Appellant contends that the trial
court violated his due process rights by instructing on invalid theories of
second degree felony murder in which the underlying felonies were assault and
conspiracy to commit assault in violation of People v. Ireland (1969) 70 Cal.2d 522 (Ireland) and People v. Chun
(2009) 45 Cal.4th 1172 (Chun). Further, he argues that the error was
prejudicial and requires reversal of his second degree murder conviction.
In Ireland, supra, 70 Cal.2d
522, our Supreme Court concluded that assault with a deadly weapon cannot serve
as the predicate felony for purposes of the felony murder rule. The court adopted a merger rule that limited
the application of second degree felony murder where the underlying felony was
“an integral part of the homicide.†(
felony-murder rule would effectively preclude the jury from considering the
issue of malice aforethought in all cases wherein homicide has been committed
as a result of a felonious assault—a category which includes the great majority
of all homicides. This kind of
bootstrapping finds support neither in logic nor in law.†(Ibid.)
In Chun, supra, 45 Cal.4th
at pages 1189, 1200, the court acknowledged that inconsistencies had emerged in
its prior holdings based on Ireland. The court reconsidered those cases and
adopted a simplified test for application of the merger doctrine in a second
degree felony murder situation: “When
the underlying felony is assaultive in nature, such as a violation of section
246 or 246.3, we now conclude that the felony merges with the homicide and
cannot be the basis of a felony-murder instruction. An ‘assaultive’ felony is one that involves a
threat of immediate violent injury.
[Citation.] In determining
whether a crime merges, the court looks to its elements and not the facts of
the case. Accordingly, if the elements
of the crime have an assaultive aspect, the crime merges with the underlying
homicide even if the elements also include conduct that is not assaultive.†(Chun
at p. 1200.)
Here, based on Ireland and Chun,
appellant contends the trial court gave three erroneous instructions to the
jury. First, he challenges the court’s
instruction on second degree felony murder based on aiding and abetting: “If a human being is killed by any one of
several persons engaged in the commission of the crime of assault with force likely to produce great bodily injury and/or assault
with a deadly weapon, felonies inherently dangerous to human life, all
persons who either directly and actively commit the act constituting one of
those crimes or who with knowledge of the unlawful purpose of the perpetrator
of the crime and with the intent or purpose of committing, encouraging or
facilitating the commission of the offense, aid, promote, encourage or
instigate by act or advice its commission are guilty of murder of the second
degree, whether the killing is intentional, unintentional or accidental.†(CALJIC No. 8.34, emphasis added.)
Second, he challenges the court’s
instruction defining murder, which included assault with force likely to
produce great bodily injury and assault with a deadly weapon as inherently
dangerous felonies: “The defendant is
accused in Counts 1, 4, 5, 6 and 7 of having committed the crime of murder, a
violation of Penal Code Section 187.
Every person who unlawfully kills a human being with malice aforethought
or during the commission or attempted commission of a felony inherently
dangerous to human life is guilty of the crime of murder in violation of Penal
Code Section 187. [¶] In order to
prove this crime, each of the following elements must be proved: One, a human being was killed; two, the
killing was unlawful; three, the killing was done with malice aforethought or
occurred during the commission of a felony inherently dangerous to human life
which was perpetrated by someone other than the defendant. [¶] Assault
with force likely to produce great bodily injury and assault with a deadly
weapon are felonies inherently dangerous to human life.†(CALJIC No. 8.10, emphasis added.)
Third, he challenges the court’s
instruction regarding second degree felony murder based on conspiracy: “If two or more persons conspired together to
commit a felony inherently dangerous to human life, namely,
bodily injury and assault with a deadly weapon, and if the life of another
person is taken by one or more of them in furtherance of the common design and
if that killing is done to further that common purpose or is the natural and probable consequence of the pursuit of that
purpose, all of the co-conspirators are equally guilty of murder of the second
degree, whether the killing is intentional, unintentional or accidental.â€
Respondent concedes, based on
murder based on assault by means of force likely to produce great bodily injury
or assault with a deadly weapon under section 245. However, respondent contends the error was
harmless beyond a reasonable doubt based on the facts of this case.
“Instructional error regarding the
elements of the offense requires reversal of the judgment unless the reviewing
court concludes beyond a reasonable doubt that the error did not contribute to
the verdict. [Citations.]†(Chun,
supra, 45 Cal.4th at p. 1201.) Chun
explained that, where the jury has been instructed with both a legally adequate
and a legally inadequate theory, e.g., a valid malice murder theory and an invalid
second degree felony murder theory, “to find the error harmless, a reviewing
court must conclude, beyond a reasonable doubt, that the jury based its verdict
on a legally valid theory, i.e., either express or conscious-disregard-for-life
malice.†(Id. at p. 1203.) Finally,
find the instructional error harmless only if “other aspects of the verdict or
the evidence leave no reasonable doubt that the jury made the findings
necessary for conscious-disregard-for-life
malice . . . .†(
The prejudice analysis in
fired from one car, a Honda, into another, a Mitsubishi, when both were stopped
at a stoplight. At least six bullets
were fired from three different guns.
All three occupants in the Mitsubishi were struck by bullets; one person
was killed. The defendant admitted to
being in the backseat of the Honda; he identified the driver and said there
were two others in the car. In a second
statement, the defendant admitted to firing a gun during the incident but
claimed he did not point the gun at anyone and just wanted to scare the
victims. The jury found that the
defendant was an active participant in a criminal street gang and that the
shooting was committed for the benefit of the gang. (Chun,
supra, 45 Cal.4th at pp.
1179-1180.) The erroneous felony murder
instruction given to the jury in Chun
“required the jury to find that defendant had the specific intent to commit the underlying felony of
committed that crime, the jury had to find these elements: [¶]
‘1. A person discharged a firearm
at an occupied motor vehicle; and [¶]
2. The discharge of the firearm
was willful and malicious.’ †(
Based on the facts and the jury
instructions, the court found that the invalid felony murder instruction was
harmless. It explained: “[A]ny juror who relied on the felony-murder
rule necessarily found that defendant willfully shot at an occupied
vehicle. The undisputed evidence showed
that the vehicle shot at was occupied by not one but three persons. The three were hit by multiple gunshots fired
at close range from three different firearms.
No juror could have found that defendant participated in this shooting,
either as a shooter or as an aider and abettor, without also finding that
defendant committed an act that is dangerous to life and did so knowing of the
danger and with conscious disregard for life—which is a valid theory of
malice. In other words, on this
evidence, no juror could find felony murder without also finding
conscious-disregard-for-life malice. The
error in instructing the jury on felony murder was, by itself, harmless beyond
a reasonable doubt.†(
Here, the jury found “not true†the
allegation that appellant personally and intentionally discharged the firearm,
and rejected the seventh overt act alleged in the conspiracy count, i.e., that
appellant was the shooter. The evidence
showed that there was one gun used by one shooter. Thus, appellant’s second degree murder
conviction was based on aiding and abetting or being a co-conspirator, and not
on his being the perpetrator of the fatal shooting. The only overt acts found by the jury were
that appellant was at the upstairs party with other Sureños and that he told
the others that someone downstairs was wearing red. There was no evidence that appellant or
anyone else knew that Garcia had a gun that night or that he habitually carried
a firearm, and no evidence that anyone at the upstairs party said anything
about shooting or killing the individual who was downstairs wearing red. Ingrid Martinez testified that the most she
was expecting was a fist fight.
As in Chun, the court here instructed on both implied malice murder and
felony murder. (Chun, supra, 45 Cal.4th
at pp. 1202-1203.) However, unlike the
felony murder instruction in Chun,
here the court’s instruction did not require proof that appellant had the
specific intent to commit or aid in committing the crime of shooting into an
occupied vehicle. Rather, all it
required was proof that appellant committed or aided in committing the crime of
assault by means of force likely to produce great bodily injury and/or assault
with a deadly weapon. The court’s
instruction on the elements of those crimes required proof that (1) “a person
was assaulted;†and (2) “the assault was by means of force likely to produce
great bodily injury or with a firearm.â€
There was no requirement, as in Chun,
that to find appellant guilty of second degree felony murder, the jury had to
find that he acted with the knowledge and intent that a willful and malicious
shooting at close range would take place, a finding that necessarily included a
conscious disregard for life. (
By contrast, here the jury could have applied the invalid felony murder
instruction to convict appellant of second degree murder based on finding that
he intended to aid in an aggravated assault, with no subjective belief that it
would endanger someone’s life.
Respondent contends that the
instructional error here was harmless beyond a reasonable doubt under the reasoning
of Chun and People v. Hach (2009) 176 Cal.App.4th 1450 (Hach), which followed Chun. In Hach,
the defendant fired a rifle into a car occupied by two people from a distance
of ten feet, killing the passenger. (176
Cal.App.4th at p. 1454.) The trial court
instructed the jury on alternate theories of second degree murder, both malice
aforethought and felony murder based on the predicate felony of shooting at an
occupied vehicle. The appellate court
found the felony murder instruction was invalid but, as in Chun, the error was harmless beyond a reasonable doubt. (Id.
at p. 1453.) The court explained that,
to find the defendant guilty of second degree felony murder, the jury must have
found that he willfully shot at an occupied vehicle. In fact, the jury made this finding when it
convicted him of violating section 246.
The defendant fired directly into the car from 10 feet away, knowing
there were two people inside. “As in
committed an act that is dangerous to life, knew of the danger, and acted with
conscious disregard for life. In other
words, the jury found defendant acted with implied malice. Accordingly, as in Chun, the error in instructing on second degree felony murder was
harmless beyond a reasonable doubt.†(
Respondent contends that this
analysis is applicable to appellant’s case, but the argument does not withstand
scrutiny. In Chun and Hach, the
underlying felony was shooting into an
occupied vehicle; the evidence in both cases showed the defendants knew the
cars were occupied and fired their weapons at short distances into the cars,
knowing that doing so would put the occupants in danger. Here, the underlying felony is aggravated assault. The evidence at trial and the jury’s verdicts
showed that the shooter, presumably Garcia (Danger), suddenly pulled a gun from
concealment, but there was no evidence that anyone knew he had a gun or
intended to shoot anyone.
Respondent argues that “the jury
must have found that appellant or Garcia, in shooting Lopez at close range with
a .357 magnum revolver, ‘committed an act that is dangerous to life, knew of
the danger, and acted with conscious disregard for life.’ (See People
v. Hach, supra, 176 Cal.App.4th
at p. 1456.)†Respondent continues: “In light of the record in this case, these
findings support the conclusion that the jury necessarily found that appellant
harbored, at a minimum, implied malice.â€
We disagree. First, the jury
found not true that appellant was the shooter.
Second, based on this determination and the instructions given, the jury
was free to convict appellant of second degree murder on any evidence that
appellant did something to aid Garcia’s commission of aggravated assault, with
knowledge of Garcia’s unlawful purpose to commit assault, and with the intent
to aid that crime even if he did not act with conscious disregard for life.
Next, respondent argues that the
inference of malice necessarily follows from the commission of aggravated
assault where the jury, to convict appellant of second degree felony murder,
necessarily found that the aggravated assault was a felony inherently dangerous
to human life. Respondent relies on Justice
Baxter’s dissent in Chun on this point,
but we are bound to follow the majority opinion in that case. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, the jury was instructed—it did not find—that
the assault was a felony inherently dangerous to human life.
Anticipating an objection from
appellant that imputing malice when a homicide occurs during the perpetration
of a felony that is inherently dangerous to human life would effectively
elevate all assaultive crimes into murder, in the absence of legal justification
or defense, respondent does not disagree but offers that, in this case, its
position results in no injustice.
Respondent explains: “Under
second degree felony murder, the defendant’s mental state is not available to
mitigate the murder to manslaughter.
Thus, evidence of imperfect self defense or heat of passion would be
unavailable to the defendant. However,
on the facts of this case, there was no evidence to support mitigation of
murder. Nor did the defense attempt to
argue mitigation. Thus, our position
does not deprive appellant of a viable defense available in non-felony-murder
situations.†We disagree. Respondent entirely overlooks the fact that
the felony murder instructions precluded appellant from defending against
second degree murder on grounds that the evidence failed to show, beyond a
reasonable doubt, that appellant acted with conscious-disregard-for-life
malice. Under the felony murder
instructions provided by the court, the jury was authorized to convict
appellant of second degree murder without regard to the presence or absence of
malice.
Finally, respondent contends that,
“independent of the second degree felony murder rule, appellant was properly
convicted under the natural and probable consequences doctrine.†This argument we find persuasive.
“The
provides that: ‘ “[An aider and abettor] is guilty not only of the offense he
intended to facilitate or encourage, but also of any reasonably foreseeable
offense committed by the person he aids and
abets . . . .
[¶] It follows that a defendant whose liability is predicated on
his status as an aider and abettor need not have intended to encourage or
facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal
was intended, and his action taken with the intent that the act be encouraged
or facilitated, are sufficient to impose liability on him for any reasonably
foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about
conduct that is criminal, not the specific intent that is an element of the
target offense, which . . . must be found by the
Thus, . . . a defendant may be held criminally
responsible as an accomplice not only for the crime he or she intended to aid
and abet (the target crime), but also for any other crime that is the
culpability under the natural and probable
consequences doctrine for a nontarget, or unintended,
offense committed in the course of committing a target offense has a different
theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target
offense is based upon the intent of the aider and abettor to assist the direct
perpetrator to commit the target offense.
By its very nature, aider and abettor culpability under the
the aider and abettor to commit the nontarget offense because the nontarget
offense was not intended at all. It
imposes vicarious liability for any offense committed by the direct perpetrator
that is a natural and probable
v. Garrison (1989) 47 Cal.3d 746, 778 [accomplice liability is
vicarious].) Because the nontarget
offense is unintended, the mens rea of the aider and abettor with respect to
that offense is irrelevant and culpability is imposed simply because a
reasonable person could have foreseen the commission of the nontarget
crime. It follows that the aider and
abettor will always be ‘equally guilty’ with the direct perpetrator of an
unintended crime that is the natural and
(People v. Canizalez (2011)
197 Cal.App.4th 832, 851-852.)
According to respondent, because the
intended crime was not simple assault, but rather was aggravated
assault—assault with force likely to produce great bodily injury or assault
with a deadly weapon—the jury necessarily would have found that Mendoza-Lopez’s
murder was a natural and probable consequence of the assault. Based on the evidence and the jury’s
verdicts, a principal, i.e., Garcia, intentionally discharged a firearm, killing
Mendoza-Lopez, with no mitigating circumstances. Although appellant was not the shooter, he
was found guilty of second degree murder and conspiracy to commit aggravated
assault. The target offense was
aggravated assault, and the jury necessarily found that appellant intended to
commit the target offense.
Our Supreme Court has addressed the
dangerousness of gang-related conflicts.
(People v. Medina (2009) 46
Cal.4th 913 (Medina).) An act is dangerous to life for the purposes
of malice where there is a high probability that it will result in death. (See People
v. Patterson (1989) 49 Cal.3d 615, 626-627.) Medina
involved a gang fist fight, after which one of the co-defendants shot and
killed the rival gang member. (
The gunman and his co-defendants were convicted of murder. The court stated that “ ‘ “a
natural and probable consequence is a foreseeable consequence.†. . . .’ †(Id.
at p. 920.) Liability under the natural
and probable consequences doctrine attaches if “ ‘a reasonable person in the
defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted.’ †(Ibid.)
In Medina, the court also discussed the foreseeability of firearm use
by gang members: “[P]rior knowledge that
a fellow gang member is armed is not necessary to support a defendant’s murder
conviction as an aider and abettor. (
[1050,] 1056 [‘[g]iven the great potential for escalating violence during gang
confrontations, it is immaterial whether [defendant] specifically knew [fellow
gang member] had a gun’]; People v.
Godinez [(1992)] 2 Cal.App.4th [492,] 501, fn. 5 [‘although evidence
indicating whether the defendant did or did not know a weapon was present
provides grist for argument to the jury on the issue of foreseeability of a
homicide, it is not a necessary prerequisite’]; People v. Montano [(1979)] 96 Cal.App.3d 221, 227, [defendant’s
liability for aiding and abetting attempted murder not dependent on awareness
that fellow gang members possessed deadly weapons].) Likewise, prior gang rivalry, while
reflecting motive, is not necessary for a court to uphold a gang member’s
murder conviction under an aiding and abetting theory. (See People
v. Olguin [(1994)] 31 Cal.App.4th 1355, 1382-1383.)†(Medina,
supra, 46 Cal.4th at p. 921.)
Here, where the jury found appellant
guilty under an aiding and abetting theory, he was properly found guilty of
murder under the natural and probable consequences doctrine because of the
heightened potential for gun violence
with gangs and because of the foreseeability of someone being killed. (See Medina,
supra, 46 Cal.4th at p. 921.) The evidence showed that appellant and Garcia
approached the victim followed by several others, rushed downstairs and
confronted him about wearing red clothing.
The shooter fired several times at close range with two of the bullets
striking the victim and killing him.
There was no evidence of any mitigating circumstance such as any form of
self-defense or heat of passion. At a
minimum, the shooter evinced implied malice, and appellant was held vicariously
liable for the foreseeable consequence of the violent assault. (See Medina,
supra, 46 Cal.4th at p. 920; People
v. Canizalez, supra, 197 Cal.App.4th at pp. 851-852.)
IV. DISPOSITION
The judgment is affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
All further unspecified statutory references are to the Penal Code.
The jury acquitted appellant of the other four murders alleged in counts 4
through 7 and made no findings on the overt acts alleged as to counts 4 through
7, i.e., acts one through three and eight through 18. Therefore, our statement of the evidence
adduced at trial will focus on that pertaining to the incident involving
Mendoza-Lopez on January 26, 2008.
