Filed 6/29/26 P. v. Moreno CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B336264
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. XNVPA029842-01
TONY MORENO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Mary Jo Strnad, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Tony Moreno appeals the superior court’s order denying
his Penal Code section 1172.61 resentencing petition after an
evidentiary hearing. Moreno contends insufficient evidence
supports the court’s determination that he is guilty of murder
and attempted murder under a conspiracy theory. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The crimes, convictions, and appeal
The People charged Moreno and two co-defendants—Juan
Corral and Julio Quintanilla—with the first-degree murder of
Saul De Santiago and the attempted murder of Marshall Mack.
The People alleged various firearm and gang allegations on
each count.
The People jointly tried Moreno and Corral. At their trial,
the People presented evidence that 17-year-old De Santiago and
three others—Daniel Fabela, Jose Ortega, and Junior Martin—
were socializing in front of a house in San Fernando on the
evening of March 17, 1998. About 9:30 p.m., a white van drove
by the house once or twice before making a U-turn and turning
off its lights. The van drove back towards the group and stopped
in the middle of the street across from them. Someone in the van
yelled, “ ‘Fuck you, Vineland’ ” or “ ‘Vineland Boys putos.’ ”2
Fabela saw someone get out of the van’s front passenger
door holding a rifle. The person was wearing white pants, a
white athletic jersey or jacket, and a hat. The person “lung[ed]”
forward and fired the rifle at De Santiago. Fabela turned to run.
He looked back momentarily and saw another person getting
1 References to statutes are to the Penal Code.
2 “Putos” is an insult in Spanish.
2
out of the van’s rear passenger door. The second person had
a handgun.
Ortega and Martin ran towards the backyard, and Fabela
took cover behind a nearby truck. Fabela’s view was partially
obstructed by the truck, but he saw the legs of two people
“right on top” of De Santiago’s body. Fabela heard gunshots
fired by two different guns.
After the van drove away, Fabela, Ortega, and Martin went
to check on De Santiago, who was lying face down on the ground.
De Santiago had been shot three times in the back of his head,
and five times in his torso, hand, and shoulder. The locations
of the wounds and likely trajectories of the bullets suggested
De Santiago was struck while he was turning his body away from
the shooters. There was blackish soot on De Santiago’s skin
on the back of his head, suggesting the bullets were fired from
less than an inch away. De Santiago died from his wounds.
Off-duty San Fernando police officer Marshall Mack
lived on the street where the shooting took place. At the time
of the shooting, Mack was standing on the sidewalk in front
of his house talking to someone. Mack heard gunshots from
two different guns about 150 feet away. He looked in the
direction of the gunshots and noticed a van double parked
in the street.
Mack went to his car—which was parked on the street—
to get his gun and police radio. While sitting in the car, Mack
noticed the van approaching him. As the van drove past his car,
Mack heard two gunshots and could smell gunpowder. The shots
came from the passenger side of the van, and they sounded like
they had been fired by a .22 caliber gun. A bullet traveled
3
through the open driver’s side window of Mack’s car and struck
him in the face.
Mack radioed the police station and reported the
shooting. After determining his wound was not life-threatening,
Mack decided to chase after the van without waiting for
reinforcements. Mack described the ensuing chase as “high
speed and reckless.” The van turned off its lights, drove through
stop signs, and traveled at speeds up to 90 miles per hour. Mack
heard a bullet strike the top of his car during the chase. Mack
suspected the bullet came from a rifle, as his car was a significant
distance behind the van at the time.
The van eventually crashed into parked cars near an
apartment complex. Mack saw four people running away from
the van. A police dog led officers to the apartments’ laundry
room. In response to the officers’ demands, a juvenile suspect
left the room. The juvenile told officers he was the only person
in the laundry room, but the dog signaled another person
remained inside. Moreno eventually came out of the laundry
room, and the police arrested him. Officers found a Dallas
Cowboys jacket inside the laundry room.
Officers learned the van had been reported stolen the
day of the shooting. According to the van’s owner, it was stolen
between 6:00 p.m. and 7:00 p.m. Officers noticed the van’s rear
window was shattered, and the curtain covering the window
had a hole the size of a bullet.
Inside the van, officers found a .38-caliber revolver, a
sawed-off shotgun, and a .22 caliber shell casing. The shotgun
was unloaded and directly underneath the driver’s seat. The
revolver’s barrel contained four expended shells and one empty
chamber.
4
In the area around the crash site, officers found a .22
caliber rifle and a .22 caliber shell casing. Officers also found
a .38 caliber semi-automatic pistol, two pairs of gloves, two stray
gloves, a baseball cap, sweatshirts, and jackets.
An officer found a number of .22 caliber casings in the area
where De Santiago and Mack were shot. The officer also found
a .22 caliber bullet underneath De Santiago’s body. A day after
the shooting, a child gave an officer a bullet, which he apparently
found near where De Santiago was shot.
A ballistics expert concluded the bullet the child found
had been fired by the .38 caliber semi-automatic pistol police
discovered near the van. The expert concluded bullets found
under and inside De Santiago’s body had been fired by the .22
caliber rifle discovered near the crashed van. Evidence showed
Corral used the same rifle to shoot a 15-year-old boy on March 2,
1998, about two weeks before the De Santiago shooting.3
A criminalist detected gunshot residue (GSR) present
on Moreno’s hand. According to the criminalist, it is possible
Moreno discharged a gun or “otherwise had [his] hands in an
environment of gunshot residue, or received these particles from
an environmental source.”
An officer interviewed Moreno while he was in custody.
Moreno admitted he was in the van and that he was sitting in the
seat directly behind the driver. Moreno told the officer he was
wearing a white t-shirt and white pants the night of the shooting.
Moreno initially denied wearing other clothing. However, he
3 The jury convicted Corral of attempted murder in
connection with the March 2 shooting.
5
eventually admitted wearing a dark blue and white Dallas
Cowboys jacket.
A bloodhound named Tinkerbelle traced Moreno’s scent
to the seat in the van directly behind the driver. The dog traced
Corral’s scent to the front passenger seat, Quintanilla’s scent
to the driver’s seat, and the juvenile’s scent to the seat directly
behind the front passenger as well as the van’s third-row bench
seat.
David Ferry testified for the prosecution as a gang expert.
Ferry said Moreno, Corral, and the juvenile were members of
the Vineland Boys gang. Moreno had tattoos associated with the
gang, and he personally told Ferry he was a member in 1996.
According to Ferry, a prison gang called the Mexican Mafia
instituted a “peace initiative” to unite the various street gangs
in the San Fernando area. Vineland refused to participate in
the initiative or pay taxes to the Mexican Mafia. In response,
the Mexican Mafia put a “green light” on members of Vineland,
signaling that other gang members were free to shoot them.
Ferry suggested this led Vineland to become one of the “most
aggressive, the boldest, and the most vicious street gang[s] in
Los Angeles.” Vineland members had been victims of enemy
gang attacks around the time of the shootings in this case.
A Vineland member was killed the day before the shootings,
on March 16, 1998.
The prosecution presented evidence that the De Santiago
shooting took place in territory belonging to a gang called
San Fer, which is a rival to Vineland. De Santiago, Fabela,
Ortega, and Martin were not gang members. However, some
of their clothing resembled that typical of gang members.
6
Ferry said gang members go on “planned missions” into
other gangs’ territory with the intention of killing rival gang
members. Members commonly express the name of their gang
in a “prideful manner” while in the rival’s territory. To avoid
detection during missions, gang members use stolen vehicles and
wear gloves. They also may wear two layers of clothing and will
discard the top layer after committing the crime. Gang members
believe it is beneficial for juvenile members to “take the fall” for
crimes to help adult members avoid apprehension. According
to Ferry, the circumstances of the shootings in this case—four
individuals, a “stolen ride, the additional clothing, [and] the
number of guns”—had “every [ ]mark of a planned mission.”
The trial court instructed the jury it could convict Moreno
of murder under a conspiracy theory, among other theories of
liability. The court told the jury a conspiracy requires an
agreement to commit “murder and/or attempted murder and/or
assault with a deadly weapon and/or discharge of a gun from
a motor vehicle.” The court said a member of a conspiracy is
“liable for the natural and probable consequences of any crime
or act of a co-conspirator to further the object of the conspiracy,
even though that crime or act was not intended as a part of
the agreed upon objective.”
The jury found Moreno guilty of the first-degree murder
of De Santiago and the willful, deliberate, and premeditated
attempted murder of Mack. As to both offenses, the jury found
true the gang allegations. On the murder count, the jury found
the firearm allegations not true. On the attempted murder
count, the jury found not true the allegation that a principal
personally discharged a firearm resulting in great bodily injury
to Mack. (See § 12022.53, subd. (d).) It found true allegations
7
that a principal personally used and discharged a firearm. (See
id., subds. (a)(1), (b), (c).)
The trial court sentenced Moreno to 22 years, plus life with
the possibility of parole, plus 25 years to life. A different panel
of this court struck the terms imposed for the gang allegations
but otherwise affirmed the judgment. (People v. Corral et al.
(Feb. 28, 2001, B136447) [nonpub. opn.].)
2. The petition for resentencing
In 2019, Moreno filed a petition for resentencing under the
predecessor to section 1172.6. The People conceded that Moreno
had made a prima facie showing. The superior court appointed
counsel to represent Moreno, issued an order to show cause,
and set an evidentiary hearing.
The court held an evidentiary hearing on November 17,
2023. The prosecutor asked the trial court to take judicial notice
of the record of conviction from the underlying trial, including
the trial transcripts. According to the prosecutor, the record
of conviction proves beyond a reasonable doubt Moreno acted
with malice aforethought and is guilty of murder and attempted
murder under current law. The prosecutor argued there is
“no possible way of looking at this case except that this was a
planned mission where every person who was in that car agreed
that they were going to go into enemy territory and that they
were going to kill a rival gang member. Or at least the first
person that they thought might be a rival gang member.” The
prosecutor asserted Moreno also must have been aware that,
if the group encountered police resistance, they would have
to respond with violence to escape.
Moreno objected to portions of the record of conviction,
including the preliminary hearing testimony, probation reports
and other hearsay in the clerk’s transcript, motions submitted by
8
Moreno’s co-defendant, the summary of facts in the appellate
court’s opinion, evidence related to the bullet a child gave to
the police, and testimony from the People’s gang expert.
Moreno presented live testimony at the hearing from
Dr. Gangaw Zaw, who is a forensic pathologist and expert on
adolescent brain development. According to Dr. Zaw, adolescence
continues until age 26. Dr. Zaw testified that Moreno’s social
history shows significant “adverse childhood experiences” that
may have affected his brain development.
Moreno urged the court to grant the petition because
the evidence at trial did not sufficiently prove he acted with
an intent to kill. According to Moreno, it is possible he merely
intended to “drive around and freak some people out.” Moreno
noted the evidence showed he was neither the driver of the van
nor a shooter. Instead, he was a passenger and had a passive
role. Moreno also noted the shotgun the police found in the van
was unloaded.
The superior court admitted into evidence the record of
conviction from the underlying trial. The court stated it would
consider evidence admitted at trial, and it overruled Moreno’s
objections to evidence related to the bullet and the gang expert’s
testimony. The court noted the expert’s testimony provided
evidence “of the context, motive and modus operandi of this
particular gang and this particular murder.” The court stated it
would not consider the preliminary hearing transcript, probation
reports, or the recitation of facts in the appellate opinion.
The court noted the jury’s findings on the firearm
allegations reflect an “anomaly in some respects,” and it is
possible the jury misunderstood the instructions. The court
stated, piecing together the verdicts, it seems the jury believed
9
Moreno discharged a firearm. However, the court said it did not
want to “piece anything together” and would take the verdicts
“at face value.”
The court determined, beyond a reasonable doubt, Moreno
is guilty of murder and attempted murder under a currently-
valid conspiracy theory. The court explained, although there
was evidence that Moreno was a shooter, it could not make
that finding beyond a reasonable doubt. Nevertheless, it found
Moreno “entered into an agreement with Corral and others, with
the specific intent to agree to commit murder on that particular
night in rival territory on behalf of their gang. And to participate
together, along with Corral and the other co-conspirators, to
carry out the intent of that conspiracy by committing numerous
overt acts in furtherance of that conspiracy.” The court said
there is evidence of planning and preparation with the goal of
carrying out the conspiracy to commit premeditated murder and
attempted escape from the murder scene. Moreover, the shooting
of Mack was “part and parcel of the conspiracy as an additional
overt act in furtherance thereof.”
The court denied the petition, and Moreno timely appealed.
DISCUSSION
Moreno challenges the sufficiency of the evidence
supporting the superior court’s conclusion he is guilty of murder
and attempted murder under current law.
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437) took effect on January 1, 2019. (See Stats. 2018, ch. 1015,
§ 4.) The bill amended existing law on accomplice liability for
murder “ ‘to ensure that murder liability is not imposed on a
person who is not the actual killer . . . .’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 416–417, quoting Stats. 2018,
10
ch. 1015, § 1(f); see § 189, subd. (e)(1).) To accomplish this
goal, Senate Bill 1437 limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, to ensure a
person’s sentence is commensurate with his individual criminal
culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
Senate Bill 1437 also authorized, through new section
1172.6, an individual convicted of felony murder or murder based
on the natural and probable consequences doctrine to petition
the sentencing court to vacate the conviction and be resentenced
on any remaining counts if he could not have been convicted of
murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Lewis, supra, 11 Cal.5th at pp. 959–960;
Gentile, supra, 10 Cal.5th at p. 843.)
Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill
775), effective as of January 1, 2022, amended section 1172.6
in various respects. As relevant here, the bill clarified that
“persons who were convicted of attempted murder . . . under . . .
the natural [and] probable consequences doctrine are permitted
the same relief as those persons convicted of murder under
the same theor[y].” (Stats. 2021, ch. 551, § 1(a).)
Once a petitioner establishes a prima facie case for relief
and the superior court issues an order to show cause, the matter
proceeds to an evidentiary hearing at which it is the prosecution’s
burden to prove beyond a reasonable doubt the petitioner is
ineligible for resentencing. (People v. Strong (2022) 13 Cal.5th
698, 708–709; People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
If the superior court finds beyond a reasonable doubt the
petitioner is guilty of murder or attempted murder
11
notwithstanding the amendments to sections 188 and 189,
the petitioner is ineligible for relief under section 1172.6.
(Strong, at pp. 708–709; Vargas, at p. 951; People v. Medrano
(2021) 68 Cal.App.5th 177, 181.)
On appeal from a trial court’s denial of relief under section
1172.6 following an evidentiary hearing, we review the trial
court’s findings for substantial evidence.4 (People v. Garrison
(2021) 73 Cal.App.5th 735, 747.) We examine the entire record
in the light most favorable to the order to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—that would support
a rational trier of fact in finding the defendant guilty beyond
a reasonable doubt. (People v. Clements (2022) 75 Cal.App.5th
276, 298 (Clements).) We resolve all evidentiary conflicts and
questions of credibility in favor of the order. (People v. Brady
(2018) 22 Cal.App.5th 1008, 1014.) We do not reweigh the
evidence or reassess witness credibility. (People v. Young (2005)
34 Cal.4th 1149, 1181 [resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact].)
The superior court concluded Moreno is guilty of murdering
De Santiago under a conspiracy theory. “ ‘One who conspires
with others to commit a felony is guilty as a principal. (§ 31.)
“ ‘Each member of the conspiracy is liable for the acts of any
of the others in carrying out the common purpose, i.e., all acts
within the reasonable and probable consequences of the common
unlawful design.’ ” ’ ” (People v. Maciel (2013) 57 Cal.4th 482,
4 Contrary to Moreno’s suggestions in his reply brief, this
case does not involve an “ ‘alternative-theory’ ” instructional
error. Nor is it governed by the standard of review for such
errors as articulated in People v. Hin (2025) 17 Cal.5th 401.
12
515.) “Murder liability based on an uncharged conspiracy to
commit murder remains a valid legal theory because it requires
proof that the defendant acted with express malice regardless
of whether he was the actual killer. [Citation.] But after Senate
Bill No. 1437 went into effect, a defendant may no longer be
convicted of murder based on a theory that he or she conspired
to commit a nonmurder offense.” (People v. Virgen (2025)
110 Cal.App.5th 440, 451; see People v. Lovejoy (2024) 101
Cal.App.5th 860, 870, review den. July 24, 2024 (Lovejoy);
People v. Nguyen (2024) 103 Cal.App.5th 668, 678–679,
review den. Sept. 18, 2024 (Nguyen); People v. Allen (2023)
97 Cal.App.5th 389, 395–396 (Allen).)
“ ‘ “Conspiracy requires two or more persons agreeing to
commit a crime, along with the commission of an overt act, by
at least one of these parties, in furtherance of the conspiracy.” ’
[Citation.] ‘ “Evidence is sufficient to prove a conspiracy to
commit a crime ‘if it supports an inference that the parties
positively or tacitly came to a mutual understanding to commit
a crime. [Citation.] The existence of a conspiracy may be
inferred from the conduct, relationship, interests, and activities
of the alleged conspirators before and during the alleged
conspiracy.’ ” ’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 548,
627 (Beck and Cruz).)
Here, sufficient evidence supports the superior court’s
conclusion that Moreno entered into a conspiracy to commit
murder. The record shows Moreno, Corral, Quintanilla, and a
juvenile traveled in a stolen van to the scene of the De Santiago
shooting. Quintanilla drove the van past De Santiago once or
twice before making a U-turn, turning off the van’s lights, and
driving back towards the victim. Quintanilla stopped the van in
13
the middle of the street, near where De Santiago was standing.
One of the passengers—most likely Corral—immediately got out
of the van and started firing a rifle at De Santiago. Eyewitnesses
and ballistics evidence indicate a second person got out of the van
after Corral and fired a semi-automatic handgun.
There is overwhelming evidence the shooters intended
to kill De Santiago, rather than simply scare or injure him.
De Santiago and his companions were unarmed. Despite
facing no resistance, the shooters shot De Santiago eight times,
including while he was turning his body away from them.
The shooters fired at least one shot to the back of De Santiago’s
head from less than an inch away, while standing over his body.
The only reasonable conclusion from this evidence is the shooters
intended to kill De Santiago. (See Beck and Cruz, supra,
8 Cal.5th at pp. 628–629 [finding the manner of the killings
reflected an intent to kill and supported the existence of
a conspiracy].)
The record supports a conclusion the shooting was a
planned attack, rather than a spur of the moment crime. The
People’s gang expert explained the circumstances of the shooting
resembled a gang “mission,” in which gang members travel to
a rival gang’s territory intending to kill rival members. Three
of the four passengers in the van—Moreno, Corral, and the
juvenile—belonged to the Vineland gang, whose members
had recently been the victims of attacks by enemy gangs.
Immediately before shooting De Santiago, someone inside the van
yelled, “Vineland.” Although there is no evidence De Santiago
belonged to a rival gang—or any gang for that matter—the
shooting took place in a rival gang’s territory and De Santiago’s
companions were wearing clothing associated with gangs. Other
14
indications of a planned mission include the use of a stolen van,
several firearms, gloves, and an extra layer of clothing that could
be discarded. (See Beck and Cruz, supra, 8 Cal.5th at pp. 628–
629 [evidence of planning and efforts to avoid detection supported
a conspiracy finding].)
Even assuming Moreno was not a shooter, there is
sufficient evidence he was a willing participant in the mission.
Moreno was a Vineland member and traveled to the scene of
the murder in the same van as the shooters. At the time of the
shooting, the van contained four firearms and enough gloves
for four people, suggesting all four occupants were prepared
to fire a gun. Moreno fled the scene with the shooters, despite
the fact they had just executed De Santiago in his immediate
presence. When the van crashed, Moreno and the juvenile
ran together and hid from police in the same laundry room.
Moreno admitted discarding a jacket while fleeing,
demonstrating a consciousness of guilt and planning activity.
The juvenile voluntarily left the laundry room and falsely
claimed no one else was inside. It is reasonable to infer the
juvenile was trying to help Moreno avoid capture, providing
further evidence they were working together.
On this record, the superior court reasonably could have
inferred everyone in the van—Moreno, Corral, Quintanilla, and
the juvenile—agreed to drive around San Fernando the night
of March 17, 1998 looking for a rival gang member to kill. Thus,
there is sufficient evidence to conclude Moreno and the others
in the van formed an agreement with the specific intent to agree
to commit murder, and with the further specific intent to commit
murder. (See Allen, supra, 97 Cal.App.5th at p. 396 [a conspiracy
to murder may be based on an agreement to murder a person
15
who is not specifically identified].) The court also reasonably
could have inferred the conspirators killed De Santiago to further
the object of that agreement, albeit under the mistaken belief
he was a member of a rival gang. (See id. at pp. 392, 396
[member of conspiracy to murder rival gang members could be
convicted of attempted murder of man erroneously believed to be
a rival gang member].) Accordingly, there is substantial evidence
that Moreno is guilty of the De Santiago murder under a
conspiracy theory. Because conspiracy to commit murder
remains a valid theory of murder, the court properly denied
Moreno’s motion with respect to the murder conviction.
There also is substantial evidence that Moreno is guilty
of the attempted murder of Mack under a conspiracy theory. The
People presented evidence that Mack witnessed the De Santiago
shooting from about 150 feet away. While fleeing the scene of
the shooting, a passenger in the van fired two bullets at Mack
from relatively short range. One of the bullets struck Mack
in the face. A passenger in the van fired another shot at Mack
during the ensuing chase. On this record, it is reasonable to infer
the shooter—or shooters—intended to kill Mack because he was
a potential witness to the De Santiago murder and actively
working to thwart the group’s escape.
“ ‘ “Each member of [a] conspiracy is liable for the acts
of any of the others in carrying out the common purpose, i.e.,
all acts within the reasonable and probable consequences of the
common unlawful design.” ’ ” (See In re Hardy (2007) 41 Cal.4th
977, 1025–1026.) Here, the court reasonably could have
concluded the attempted murder of Mack—a potential witness
actively trying to thwart the group’s escape—was a reasonable
and probable consequence of carrying out the conspiracy
16
to murder a rival gang member. (See People v. Wells (1960)
187 Cal.App.2d 324, 330–331 [a conspiracy to commit a crime
“includes the evading and resisting of arrest and acts done
to that end”].) That Mack was not the specific target of the
conspiracy is irrelevant. Moreno’s “liability as a member of
a conspiracy to commit . . . murder required . . . [he] possessed
malice aforethought, and his liability for any coconspirators’
acts in furtherance followed.” (Nguyen, supra, 103 Cal.App.5th
at p. 681; see Allen, supra, 97 Cal.App.5th at pp. 397–398
[petitioner was not entitled to resentencing even though
instructions allowed the jury to convict him of attempted murder
of one victim if it was the natural and probable consequence
of a conspiracy to murder a different victim]; Lovejoy, supra,
101 Cal.App.5th at p. 867 [liability for a coconspirator’s acts
“is problematic [for purposes of section 1172.6] only where a
defendant is convicted of murder or attempted murder based
on a conspiracy to commit ‘a lesser crime that resulted in
murder’ ”].) Accordingly, the court properly denied Moreno’s
motion with respect to the attempted murder conviction.
Moreno notes there is conflicting evidence on key issues
in the case, including the number and identities of the shooters.
He also notes the prosecutor in the underlying trial asked the
court to instruct the jury on conspiracy to commit assault with
a deadly weapon and discharge of a gun from a motor vehicle.
Moreno suggests these facts should have created a reasonable
doubt as to whether he is guilty of murder. We disagree.
As the trier of fact, the superior court was free to “review
all the relevant evidence, evaluate and resolve contradictions,
and make determinations as to credibility.” (Clements, supra,
75 Cal.App.5th at p. 298.) That there was sufficient evidence
17
from which the court could have found Moreno committed a
lesser crime did not preclude the court from concluding, beyond
a reasonable doubt, he committed the greater crime. Moreover,
where, as here, “the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment
is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v.
Jennings (2010) 50 Cal.4th 616, 639; see People v. Mumin (2023)
15 Cal.5th 176, 202 [“ ‘[c]onflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of
a judgment’ ”].)
We reject Moreno’s contention that the superior court
erroneously suspected he was the “second shooter.” According
to Moreno, the court’s suspicion contradicted the jury’s findings
on the firearm allegations and some of the evidence presented
at trial. Regardless of whether the court suspected Moreno
was a shooter, it stated explicitly it could not make that finding
beyond a reasonable doubt. The court ultimately concluded
Moreno is guilty as a conspirator, which is a theory of liability
that did not require it to find Moreno was a shooter. Moreno
suggests the court nevertheless was swayed by its suspicion that
he was a shooter, but there is nothing in the record to support
that assertion. (See People v. McCurdy (1958) 165 Cal.App.2d
592, 598 [the “burden is upon the appellant affirmatively to
show prejudicial error”].)
Moreno’s reliance on People v. Ware (2022) 14 Cal.5th 151
(Ware) is misplaced. In Ware, a jury convicted the defendant
of the crime of conspiracy to commit murder based on evidence
showing he was a member of a “two-year-long agreement among
at least 20 gang members to kill members of rival gangs, without
18
agreement as to any specific times, persons, or places where
killing would take place.” (Id. at pp. 156, 161.) There was no
evidence the defendant had committed or participated in any act
of violence. The People instead relied on evidence showing the
defendant was a member of a gang, had access to guns, voiced
support on social media for violence against rival gang members,
and tried to help a fellow gang member who had been arrested
for a shooting. (Id. at pp. 156–159.)
The California Supreme Court held there was insufficient
evidence to convict the defendant of conspiracy to commit
murder. The court explained the “evidence unquestionably
establishes [the defendant’s] membership in a group with violent
aims and his association with individuals who commit violent
crimes. But it is not sufficient to support a finding that [the
defendant] specifically intended to enter an agreement to
commit murder, or that he specifically intended to commit
murder, either personally or through others.” (Ware, supra,
14 Cal.5th at p. 174.) Rather, to “establish the requisite specific
intent connecting an individual defendant to the charged
conspiracy, the prosecution must show that the defendant
intended to play some part in achieving the conspirator’s
unlawful ends. Put differently, ‘[t]here must be something
more than “[m]ere knowledge, approval of or acquiescence in
the object or the purpose of the conspiracy.” ’ ” (Id. at p. 166.)
Here, unlike in Ware, there is evidence Moreno agreed
to commit murder at a relatively specific place and time: the
evening of March 17, 1998 in San Fer territory. Moreover, there
is evidence Moreno intended to play a part in achieving the ends
of the conspiracy beyond that of a mere cheerleader. (See Ware,
supra, 14 Cal.5th at p. 166 [a “cheerleader, no matter how
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enthusiastic, is not a coconspirator unless the prosecution can
prove the cheering was intended to play some role in achieving
the object offense”].) Moreno was physically present with
his coconspirators when they shot and killed De Santiago
in furtherance of the conspiracy. There also is evidence that
Moreno was armed—or at the very least had access to a firearm
—was wearing or had access to gloves, and was wearing more
than one layer of clothing during the shooting. From this, it
is reasonable to infer Moreno “specifically intended . . . to play
at least some role in achieving” the criminal offense. (Id. at
pp. 166–167.) Although the details of Moreno’s intended role are
not clear, “the prosecution is not required to establish precisely
how the defendant intended to achieve the ends of the conspiracy
or that the defendant’s chosen means were effective in achieving
those ends.” (Id. at p. 166.)
We reject Moreno’s contention that the superior court
considered improper gang evidence. The evidence with which
Moreno takes issue was admitted at his trial, and this court
affirmed that decision.5 Under section 1172.6, subdivision (d)(3),
5 In affirming admission of evidence related to the Mexican
Mafia, this court explained a “major issue in this case was why
defendants would have wanted to shoot these particular victims.
The evidence relating to the Mexican Mafia provided that motive
by showing that defendants, as members of the Vineland Boys
gang, could have wanted to carry out the shootings in order
to bolster their gang’s reputation as bold and aggressive, and
thereby make the gang a less likely target of other local gangs.
The Mexican Mafia evidence put the shootings in context by
suggesting a motive for what otherwise appeared to be entirely
random shootings.” (People v. Corral et al. (Feb. 28, 2001,
B136447) [nonpub. opn.].)
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the superior court “may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed.” Accordingly, the superior court was permitted
to consider the gang evidence admitted at trial, except to the
extent the ground for admitting it is no longer valid under
current law. (See People v. Davenport (2023) 95 Cal.App.5th
1150, 1158–1159; see also People v. Farfan (2021) 71 Cal.App.5th
942, 947 [section 1172.6 “does not afford the petitioner a new
opportunity to raise claims of trial error”].)
Moreno contends some of the gang expert’s testimony
is no longer admissible in light of People v. Sanchez (2016) 63
Cal.4th 665 (Sanchez), which held an expert may not “relate as
true case-specific facts asserted in hearsay statements, unless
they are independently proven by competent evidence or are
covered by a hearsay exception.”6 (Id. at p. 686.) According to
Moreno, the expert violated Sanchez by relying on case-specific
hearsay to conclude the De Santiago shooting had “every [ ]mark
of a planned mission.” We disagree.
The expert’s opinion that the shooting resembled a
planned mission was premised largely on his background
knowledge of the inner workings of the Vineland gang and its
6 Moreno also notes that, since his trial, the Committee
on Revision of the Penal Code issued a report critical of gang
evidence, the Legislature passed legislation “tightening” the
elements of the gang enhancement and allowing bifurcated trials
(see §§ 186.22, 1109, subd. (a)), and the Los Angeles District
Attorney issued a special directive in 2020 to dismiss and
withdraw gang enhancements. It is not apparent, and Moreno
does not explain, how these affect the grounds under which
the court admitted the gang evidence at his trial.
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members. Expert testimony about a “gang’s behavior, history,
territory, and general operations” is permitted under Sanchez,
even if based on hearsay. (People v. Valencia (2021) 11 Cal.5th
818, 838; see Sanchez, supra, 63 Cal.4th at p. 698.) Moreover,
the case-specific facts the expert identified as supporting his
opinion—four individuals, a “stolen ride, the additional clothing,
[and] the number of guns”—were “independently proven by
competent evidence.” (Sanchez, at p. 686.) Accordingly, there
is no merit to Moreno’s contention that the expert’s opinion—
and the facts underlying it—are inadmissible under Sanchez.
DISPOSITION
We affirm the order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, Acting P. J.
We concur:
ADAMS, J.
HANASONO, J.
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