P. v. Salas
Filed 12/16/13 P. v. Salas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BENITO SANCHEZ
SALAS,
Defendant and Appellant.
F063978
(Super. Ct. No. F09903456)
APPEAL
from a judgment of the Superior Court of
Fresno County. Edward Sarkisian,
Jr., Judge.
Athena
Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Louis M. Vasquez and Tiffany J. Gates, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
This case arises out of an
altercation between members and friends of two families who lived in the 4600
block of East Turner Avenue, Fresno.
title="">[1] As of June 2009, Maria Arceli Mendez (Arceli)
and her husband, Jose Mendez (Jose), lived at 4677 with their children, who
included Esmeralda Mendez (Esmeralda), Jose Balderas, Ruben Balderas (Ruben),
and Josue Balderas (Josue). The Salas
family lived at the two addresses directly east of the Mendez residence. Benito Sanchez Salas (defendant), his daughter,
and Rebecca Hernandez (Hernandez) lived in the guest house at 4681, next door
to the Mendez home. Defendant’s father Alberto
Salas, Sr. (Alberto), mother Maria Nativad Sanchez (Maria Nativad), and brother
Jose Salas (Sam) lived in the main house at that address. Defendant’s brother Antonio Sanchez Salas
(Antonio) and Antonio’s son Junior Jesse Salas (Junior Jesse) resided at 4687,
the house immediately east of 4681. Defendant’s
brother Fabian Salas (Fabian) was staying at 4687 at the time. Defendant also had three other brothers: Miguel Salas (Miguel), Alberto Salas, Jr.
(Junior), and Santos Salas (Santos).
On
June 11, 2009, family and friends gathered at the Mendez residence for a
barbecue. A fistfight broke out between
some of the Mendezes and some of the Salases, then gunfire erupted. As a result of these events, a jury convicted
defendant of the first degree murders of Jose and Pablo Mendez (Pablo) (Pen.
Code,
title="">[2] § 187, subd. (a); counts
1 & 2, respectively), and the attempted premeditated murders of Eulalia
Mendez (Eulalia) and Juan Mendez (Juan) (§§ 187, subd. (a), 664; counts 5
& 6, respectively).
name="_ftnref3" title="">[3] As to counts 1 and 2, jurors
found true a multiple-murder special circumstance. (§ 190.2, subd. (a)(3).) As to all counts on which they convicted
defendant, jurors found defendant personally and intentionally discharged a
firearm. (§ 12022.53, subd. (c).)
he was sentenced to two consecutive terms of life in prison without the
possibility of parole, plus two consecutive terms of life in prison with the
possibility of parole, plus 80 years. He
was also ordered to pay restitution, as well as various fees, fines, and
assessments.
On
appeal, we hold the evidence was sufficient to support the jury’s verdicts, and
defendant could properly be convicted of
deadlocked, and a mistrial was declared, with respect to Antonio. Accordingly, we affirm.
FACTS
As
of June 2009, the Mendez and Salas families had been neighbors for years.
between the two groups until late 2008 or early 2009, when Ruben began to have
problems with Fabian and Antonio. On
March 8, a fight that began between Fabian and Ruben ended with defendant
hitting and kicking Jose, and Ruben being hospitalized after Antonio struck him
in the head. The police were called. Although no arrests were made, Arceli
unsuccessfully attempted to get a restraining order against defendant, Fabian,
and Antonio. After that, the Salases —
particularly Fabian — always tried to start trouble. The Mendezes called the police multiple times
as a result.
June
11 was elementary school graduation for Esmeralda and Junior Jesse. Arceli, Jose, Ruben, Jose Balderas, and
Fabian all were present at the ceremony. Afterward, Fabian approached Ruben and they
argued, with Fabian calling Ruben names and saying something along the lines
that he was going to kill Ruben or Ruben should “watch†when he got home. Arceli called the police and Fabian accused
her of being a snitch.
The
Mendez family drove home in separate vehicles.
When Arceli and her children arrived, Fabian and his parents were in
front of the Salas home, but they did not say anything to Arceli. When Jose arrived, however, Fabian started
insulting him and saying things like, “I’m going to fuck you guys all up. You guys are done.†Jose refused to fight Fabian and told him to
calm down, and Arceli again called the police. The police talked to both families, then
left. Fabian again started yelling at
the Mendezes from his house, calling them names and trying to get them to come
outside.
Vargas
arrived at the Mendez house around noon. Fabian was on the front porch at 4681, cursing
and saying “disturbing†things. At one
point, he waived a gun around and told Jose it was for him. Arceli called the police again. The officers talked to the Salases, then told
Arceli everything was going to be fine, her family should continue with the
barbecue they had planned, and the police would be patrolling the area.
The
Mendezes went into the backyard and started barbecuing for Esmeralda’s
graduation party.
arrived at different times and went to the back to eat. During the two hours before the shootings,
Vargas saw more and more people arrive at the Salases’ location, and heard the
Salases — particularly Fabian — trying to provoke Jose.
After
people ate, many went to the front yard to talk and watch the children play. Accounts of what happened next varied.
Pablo’s wife, Maria De Jesus Mendez (Maria De Jesus), saw
Alberto and Maria Nativad arrive in a van.
Maria Nativad got out, took out a gun, and gave it to one of the young
men. The young man loaded the weapon and
pulled back the top. Jose said to fight
fair and not pull any guns. Vargas saw
Alberto arrive in a van. He had
something in a paper bag. From the way
he carried it, Vargas surmised the bag contained guns. Alberto put the bag in the bed of Santos’s
brown mini truck.
name="_ftnref7" title="">[7] Vargas yelled at Jose to come back, that they
had guns, but she did not believe he heard her. Ruben saw Alberto pull up in a van. He had a black plastic trash bag. Antonio, who already had a gun, and defendant
went to Alberto’s location. When they
came back out front, defendant had a gun.
Others
first saw guns appear just before or during the time Fabian, possibly several
other Salases, Jose, Pablo, and Juan walked out into the street, and Fabian and
Jose started arguing. Ruben saw Antonio
pointing a gun at everyone during the argument. Juan, who got in front of Jose as they walked
into the street, saw more than one gun, and a gun being passed around. Johnny Mendez, Jr. (Johnny) saw Fabian pull a
gun out of a truck. Fabian passed the
gun to Antonio, and Antonio pulled back the slide. Fabian told him no. Fabian was putting the guns away, and Juan
said to put the guns down and fight like a man or something to that
effect. Fabian said, “fine, we’ll
fight,†then handed the gun to Antonio, who left for a while.
Fabian
lunged toward Jose, the two started fighting, and others joined in. Shortly after the fight started, shots were
fired.
According to Hernandez, Antonio was inside his house
until after the shootings, when he exited the residence and walked off. After the fight started, defendant shot into
the air about four times as he walked toward the crowd, where Fabian and Miguel
(who had intervened in the fight on Fabian’s behalf) were on the ground with a
crowd of about 13 other men beating them up.
As defendant started walking toward the street, the Mendez family moved
toward him. They looked angry. They surrounded him, then he fired and two
people who were part of that group dropped to the ground.
According
to Arceli, Jose was on top of Fabian when Antonio came from one side, shot Jose,
and then shot Pablo. Defendant then
moved closer and Antonio handed him the gun.
Defendant immediately began firing “at all the people.†Antonio got on a bicycle and left. While defendant was firing, Maria Nativad was
yelling at her sons to kill everybody, even the mother, and not to let anybody
live.
Christina
Acosta (Acosta) saw Fabian hovering over one of the Mendezes, hitting him, when
defendant, who had a gun, ran from the area of the gate at 4681 to the street. He was “shooting all over the place†as he
ran. He first aimed toward the middle of
the street, then fired in different directions. When he reached the middle of the street, he
stopped running and fired more shots. Defendant
was the only person Acosta saw with a gun, although she heard shots before she
saw him shooting. She did not see anyone
give him a gun. She did not see Antonio
at the scene.
According to Jose Balderas, Antonio
fired at least two shots toward Jose and Pablo.
He was six or seven to 10 feet from Jose at the time he fired. Pablo was a couple of feet behind Jose. Jose Balderas ducked down behind a car. He saw Antonio ride off on a bicycle, but,
although he only saw the one gun, he continued to hear shooting after Antonio
was gone.
title="">[10]
Emmanuu Sandoval (Sandoval) told Detective
Federico that he saw three firearms at the scene. Antonio was waving a gun as he came running
from his house, and defendant and Junior also had firearms. Antonio, who was several feet away from Jose,
pointed at Jose’s head and shot him.
Sandoval surmised Antonio also shot Pablo, because Pablo and Jose fell
at the same time. Sandoval said guns
were handed to Miguel and defendant.
After Jose and Pablo fell, Sandoval hid between two cars and heard
several more gunshots. He gave the impression
there were multiple weapons being fired at the same time.
According
to Ruben, defendant shot Jose. Ruben did
not remember how many times defendant fired, but “it was a lot.†He was not able to see what Antonio was doing
while defendant was firing.
Juan was face down on the ground when he heard three
shots and then a big boom. He looked up
and saw people running everywhere and Pablo lying next to him. As he was getting up, he saw someone pointing
a gun at him. He looked the other way,
heard a bang, and thought he was hit, but he was not. He did not recall if this person fired at
him, but the person was firing toward all the people who were at Jose’s house.
Johnny
heard a gunshot and saw Jose fall. When
Johnny looked for the gun, he saw Antonio firing. Antonio shot three times. Johnny then moved over by Hector Balladares’s (Balladares)
vehicle. He saw Balladares with a
shotgun or rifle and heard him fire it.
Although he did not see where Balladares was aiming when he fired, he
remembered Balladares standing with the gun by the door of his vehicle, aiming
up. Johnny then saw defendant, “in a
panic,†shooting randomly. Johnny heard
about seven shots fired after the shotgun. He saw defendant fire the last two shots. Defendant had a different gun than the one
Johnny saw Antonio fire.
name="_ftnref13" title="">[13]
Balladares
retrieved his shotgun from his vehicle when he saw two people with guns. He heard three shots, but did not see who
fired them. He heard someone say, “Shoot
the mom†or “Get the mom,†then saw defendant trying to shoot first Eulalia and
then Juan. Wanting defendant to stop
firing, Balladares fired his shotgun up in the air. Defendant was not the same person Balladares
first saw with a gun. Balladares heard
six to eight shots after he fired his shotgun.
During
the argument in the street, Plascencia saw a man with a gun run to the street
from the area of 4681 or 4687. Jose told
him to put the gun down, then Juan and another man started fighting. The man with the gun moved to the
sidewalk. He had the gun hidden, but
Plascencia knew he had it because he did not give it to anyone. When other people jumped into the fight
against Juan, Plascencia ran to try to separate them. As he did, he was shot in the side of the
face. Although Plascencia did not see
who shot him, he believed it was Antonio because Antonio was at the location
that lined up with the shot, and he was the only one Plascencia saw with a gun.
taken from the mini truck and passed hand to hand, so it was moving to the
front of the group of people associated with the Salases. Finally, one of that group fired three shots,
then handed the gun to defendant, who was the person behind him. The person who fired first aimed each shot,
whereas defendant “seemed like he was shooting ducks out there.â€
defendant swung the firearm toward her.
She threw herself to the ground and heard the gun fire.
his hand and shot Jose and Pablo. Eulalia
saw and heard three shots, went to Jose, and then heard Maria Nativad say,
“kill the mother.†Eulalia saw defendant
pointing a gun at her. He fired, she
turned, and the shot went by her, between her shoulder and her ear.
According to Esmeralda, Jose and
Fabian were on the ground, fighting, when Antonio came from the side and shot
Jose and Pablo. Antonio was “very closeâ€
to Jose when he fired, hitting Jose in the head.
when Jose was shot, but after, she saw defendant shooting at “everybody†on the
Mendez side. Esmeralda did not see where
defendant obtained his gun.
Officer Taylor arrived on the scene
three minutes after being dispatched to a call of men arguing. A number of people ran toward his patrol car,
yelling that those involved in the shooting were still at the location. They led Taylor to one of
the Salas residences and pointed out defendant and Miguel, who were standing in
the front yard. Neither had a weapon. However, results of a gunshot residue
examination subsequently conducted on defendant were consistent with him having
fired a firearm.
Officer
Ruiz conducted in-field showups on the evening of the shooting with Jose
Balderas, Josue, Juan, and Ruben, in which each was shown defendant and
Miguel. Jose Balderas said “Tony
Salazar†was the shooter, defendant had encouraged Fabian to fight, and Miguel
was also fighting.
name="_ftnref19" title="">[19] Jose Balderas said he did
not see defendant with a gun. The other
three all identified defendant as the shooter. Ruben stated there was only one shooter and
defendant was the person who shot Jose and Pablo. Juan identified defendant as the shooter and
said defendant shot at him, but Juan ducked.
Autopsies
revealed Pablo was shot in the left side of the head from a distance of more
than two and one-half to three feet. He
also was grazed by a bullet on the left side back. The cause of his death was “perforation of the
brain due to gunshot wound to the head.†Jose suffered a penetrating gunshot wound to
the left parietal region of the head. The
bullet was fired from a distance of more than two and one-half to three feet. The cause of his death was “penetration of the
brain due to gunshot wound to the head.â€
Two
expended 10-millimeter shell casings were found in proximity to the porch area
of 4681, then seven such casings in a group, then two more. The existence of 11 expended shell casings
indicated the weapon was fired 11 times. Based on the physical evidence at the scene
and his investigation, Gray concluded one handgun and one shotgun were fired
during the incident.
name="_ftnref20" title="">[20]
Gray
listened to the Hernandez and Acosta 911 calls in which the shots could be
heard. The first and second shots were
almost a second apart. There was then a
pause of just under one second, then a series of six shots, each separated by
approximately one-quarter to one-half of a second. There was then a pause of over 13 seconds
between the eighth and ninth shots, just under two seconds between the ninth
and 10th shots, slightly more than four seconds between the 10th and 11th shots,
and just over six seconds between the 11th and 12th shots. The shotgun blast was the 10th shot. Gray determined it was physically possible to
pass the gun to another person in the time span between the second and third
shots.
A
magazine from a Glock 10-millimeter handgun, and an empty holster that fit a
Glock 10-millimeter handgun and in the pouch of which was a loaded magazine for
the same type of firearm, were found in the living room of 4681. A black nylon pouch containing a 10-millimeter
magazine was found in one of the bedroom closets. At 4687, a pouch of the type used to hold a
set of handcuffs, a plastic holster, and an open but lockable handgun case
labeled “Glock†were found. A box of
live nine-millimeter ammunition and a magazine for a Glock nine-millimeter
handgun were in the gun case. In a box
in the detached garage was a Glock nine-millimeter semiautomatic handgun that
had one round in the chamber and five in the 10-round-capacity magazine, and
that fit the holster found in the bedroom. The firearm was registered to Antonio. A Glock 10-millimeter handgun, that was
subsequently determined to have been used to fire the 11 cartridge casings
recovered from the scene, was found hidden in a woodpile behind the garage. This gun had a bullet in the chamber and three
in the 15-round-capacity magazine.
The
10-millimeter handgun belonged to Purdy Rivera (Rivera), defendant’s employer. When Rivera saw on the news that defendant had
been arrested for a crime involving a firearm, he checked the storage container
in his office and discovered his gun, extra clips and ammunition, and holster
were missing. Rivera could not recall
whether defendant was employed on June 11, or if he was doing other things at
the time because work was slow. However,
defendant knew the firearm was in the storage container. Rivera did not give defendant or anyone else
permission to take the gun. At one
point, Rivera and defendant, whom Rivera knew was having problems related to
his neighbors, discussed the gun, and Rivera told defendant that Nathan Hammer,
another of Rivera’s employees, might have it.
Gray
and Federico interviewed Antonio a day or so after the shooting, when Antonio
turned himself in after seeing on television that the police were looking for
him. Antonio related that the Mendez
sons, who were in high school, tried to beat up Junior Jesse, who was 12. Antonio talked to the father, who said he
would talk to his son, and things “just went off from there.†According to Antonio, the Mendez teenagers and
their father then tried to beat up Fabian at Junior Jesse’s graduation. Fabian telephoned Antonio, who had to work
that day, to tell him what happened, but Fabian was not upset.
Antonio
related that when he got home from work about 5:30 p.m.,
Junior Jesse came running in and said the Mendezes were “jumping†Fabian. As Antonio came outside to help Fabian, he
heard 12 or 13 shots and what sounded like a shotgun.
the time, whether anyone was shot.
Antonio
related that he had one weapon at his house — a nine-millimeter Glock that was
locked in a box in the closet of his bedroom. He expressed surprise when told the gun was
found at a different location, and said nobody in his household knew he had the
gun, and he had the key to the lock. Antonio
denied being involved in the altercation with the Mendezes, near the crowd of
people fighting, or having a weapon in his hands. As far as Antonio knew, none of his brothers
owned a gun.
II
Stephen
Cloyd testified as an expert regarding shotguns and ammunition. He concluded the location at which the wadding
from Balladares’s shotgun was found was inconsistent with that gun having been
fired up into the air. Rather, the
shotgun was basically parallel to the ground and had to have been aimed toward
the east.
On
the night of the shooting, Josue was asked to view an in-field showup. He identified defendant as the person who
shot Jose. He did not actually see
defendant shoot Jose, he just saw defendant shooting, and that was why he
thought defendant was the perpetrator.
After
defendant was detained following the shooting, Josue attacked him and was
arrested as a result. He told the
arresting officer that defendant and Antonio had guns and were shooting, and
that Antonio shot and killed Jose. Josue
told the officer that he saw Antonio pull a chrome gun, possibly a .45, from an
unknown location and begin shooting. The
gun Josue saw in Antonio’s possession was a different gun than the one he saw
in defendant’s possession.
Miguel
did not reside on East Turner at the time of the shooting, but was aware of
tension between the Mendez family and his, particularly Fabian and Ruben. So far as he knew, defendant never had any
problems with the Mendezes. After the
incident on March 8, however, defendant was frustrated and worried. On or shortly after that day, defendant and
Miguel drove to the Sanger residence of Nathan Hammer, who gave defendant a
shoe box containing a gun. Defendant
took it home.
On
June 11, Miguel went to his parent’s house around 11:00 a.m. or noon,
after he got off work. When he arrived,
a police officer was talking to defendant and Fabian. Miguel remained at the house until around 1:00 p.m., then left.
name="_ftnref24" title="">[24]
Miguel
returned to his parents’ house around 5:00 p.m. There was a large gathering at the Mendez
house. Jose and Juan were calling Fabian
names and cussing at him. Fabian
responded by staring back at them. Seven
or eight of the group at the Mendez house started walking toward the
street. Fabian and Miguel responded by
also going toward the street. Juan
challenged Fabian to fight, and there was a lot of hollering back and forth. Antonio and defendant were not out there.
Fabian
and Juan exchanged blows, and Fabian landed a hard one that made Juan step
back. The others then rushed Fabian. Miguel saw someone with a knife, and so he ran
to try to get people off of Fabian, who was on the ground. Miguel struck Jose, then was himself hit in
the back of the head. Miguel was on the
ground near Fabian when he heard rapid shots.
He did not know how many. He did
not see who was shooting, and had not seen anybody with a gun. Everyone, including Miguel, ran.
Miguel
ran to Antonio’s house. He did not see
Antonio or Junior then, but defendant came inside when Miguel was already
there. Miguel did not hide a gun. He did not know what defendant may have done.
Defendant
testified that on March 8, he was at a grocery store when he got a phone call
that something was happening at the house.
When he arrived home, he saw Alberto and Antonio shaking hands with Jose.
Defendant did not find this unusual,
because they had had arguments before, then would discuss it and shake hands.
Defendant
was sitting on the porch when he saw a group of youngsters
coming from across the street, and observed words being exchanged between
Fabian, Ruben, and Sandoval. Those three
suddenly got into a fistfight. Jose
threw a beer bottle at defendant, who by this time was standing next to Alberto,
and defendant and Antonio became involved in the fight. Defendant hit Jose and knocked him down. Jose started making threats and saying he was
going to kill Fabian, and he also mentioned Alberto, Maria Nativad, and
defendant.
name="_ftnref25" title="">[25] The next day, when Jose was sober, he came
over and apologized to Alberto.
After
the incident, defendant pleaded with the responding police officer to arrest
both him and Jose, so they could resolve their issues, but the officer would
not. Defendant subsequently telephoned
Rivera, then drove to his house with Miguel. Defendant explained the situation, and asked
if Rivera thought it would be wise for defendant to obtain a gun. Rivera thought it would be, and offered to
lend defendant his firearm. Rivera said
Nathan Hammer had it at his residence, so defendant and Miguel drove to Sanger
and got the gun. Defendant and Miguel
returned home, and defendant put the gun in the guest house and then later hid
it in a cabinet in Maria Nativad’s kitchen.
No one else knew where it was.
On
June 11, defendant had to take care of some errands. He did not know about the elementary school
graduation. When he arrived home, he
talked to Fabian about what had gone on at the school.
talked to Fabian and members of the Mendez family, but did not do anything.
Later
that afternoon, defendant saw a lot of males next door to 4681. This concerned defendant, because only his
parents and Sam, who is somewhat slow mentally, lived in the front house. Defendant entered his parents’ house and
encountered Alberto coming out of his bedroom.
He was on the telephone, and handed it to defendant. Al Alarcon, who owned a real estate and
construction business and had been acquainted with the Salas family and advised
Alberto for years, was on the phone. He advised
defendant to go to the courthouse and take out some restraining orders against
the Mendezes.
Defendant
walked outside while still on the phone, and saw 40 people he believed were
coming to kill Alberto. The group was
walking toward the driveway at 4681. Defendant
saw Fabian in the middle of the street with seven to eight people around
him. They were arguing, and it appeared
they were getting ready to fight. Defendant
did not see anyone with a weapon at that point, and he walked out to where they
were going to fight. As he got closer,
he noticed a Hispanic male with what defendant believed to be a rifle, walking
by the cars.
name="_ftnref27" title="">[27]
Afraid
Fabian would be killed, defendant ran to 4681 and grabbed the gun out of the
kitchen cabinet. He chambered a round
and ran back outside, firing two or three shots into the air as he went. He ran to the location he believed allowed him
the best chance of finding the person with the rifle, and he saw Fabian getting
beaten up. Defendant fired at Jose and
another individual who were kicking Fabian.
Defendant believed he fired five to six rounds at those people, although
he did not know how many exactly. He
“was just shooting.â€
After
defendant fired the first five or six shots, he told everybody to get
back. He panned the gun so people would
know he meant business. He did not want
anyone around him, because he was looking for the man with the rifle. People stayed away from him.
As
defendant was panning the gun, he saw the man with the rifle. The man came from behind Balladares’s truck,
lifted the rifle, and fired it defendant’s way. Defendant fired three or four times in that
direction. He may have fired one or two
more shots after that. As far as he was
aware, he never fired at Vargas, Eulalia, or Juan. He never directed any of his shots into the
Mendez yard or at the Mendez house. He
had no idea at the time that Plascencia had been hit.
Defendant
believed that had he not started shooting, Fabian would have died. Defendant had no idea where Antonio was at the
time. There was “no way†Antonio could
have had Rivera’s gun; to defendant’s knowledge, Antonio did not even know
defendant had the gun.
name="_ftnref28" title="">[28]
After
the shooting, defendant ran to Antonio’s house and hid the gun in back of one
of the garages there. He did not see
Antonio any time during the incident. Defendant came back out into the front yard
when the police officers arrived and turned himself in. He did not tell officers that he had to defend
his brother. When asked what he saw, he
gave “a bunch of bullshit.â€
Antonio
testified that in approximately 2007 or 2008, he purchased a nine-millimeter
Glock semiautomatic firearm from a store in Fresno because he
was planning to be an armed security guard.
The gun came in a lockable box with two magazines. Antonio also bought ammunition, handcuffs,
and a handcuff case. Antonio kept the
gun in his bedroom closet. He did not
store it loaded.
On
March 8, Alberto talked to Jose, then called Antonio, who was at Antonio’s
house, over.
name="_ftnref30" title="">[30] Antonio and Jose talked, and Jose said he
would talk to his son, and Antonio should talk to Antonio’s son. Antonio and Jose were shaking hands; in
Antonio’s mind, everything was settled. However,
he then saw Ruben and Sandoval walking toward Sandoval’s house, and Fabian
coming. Ruben, Sandoval, and Fabian
started arguing, then fighting. Antonio
started to walk over to them, but Jose’s friend grabbed and held him, and Josue
came from the side and hit Antonio with brass knuckles. Antonio freed himself, then hit Ruben on the
side of the head.
Between
March 8 and the day of the shooting, Antonio did not have any further problems
with the Mendez family. He never
displayed his gun to, or pointed it at, any of them.
On
June 11, Antonio was unable to go to Junior Jesse’s elementary school
graduation, because he had to work. Fabian went in his place. Fabian subsequently telephoned Antonio and
said he was having problems with the neighbors at school, and that they had tried
to jump him. Fabian wanted Antonio to
come home, but Antonio could not, and he told Fabian just to stay inside.
During
the course of the day, Fabian probably called Antonio three times. During one of the calls, Fabian said there
were a lot of people over there, starting trouble with him. Antonio, who still could not leave work,
again told him to stay inside.
Antonio
finally got home around 5:30 p.m. At some point, Junior Jesse came running in
and said “they†were jumping Fabian.
Antonio assumed he meant the Mendezes, because Fabian was having
problems with them. Because he had seen
a lot of people when he arrived home, Antonio grabbed his gun from its unlocked
box, stuck in one of the magazines, and started outside. As he was running from his house with Junior
Jesse behind him, he heard shooting. When
Antonio actually got outside, he saw a group of people and smoke. He did not see who shot or know if anybody
got shot. He threw his gun in the
garage, then he and Junior Jesse jumped the fence and took off. Antonio did not stay to find out what was
going on, because there were a lot of people and he did not know who was
shooting. He was scared and did not want
his son to get hurt. He dropped the gun
because he did not have a permit to carry it as a concealed weapon and did not
want to be carrying it around. The next
day, someone told Antonio that they had seen on television that the police were
looking for him. Antonio promptly turned
himself in.
Antonio
denied shooting anyone or passing a gun to defendant. Antonio and defendant “didn’t talk.†If they saw each other, Antonio would merely
wave. They did not have any kind of
relationship, and Antonio was unaware defendant had a gun. Shooting someone did not seem like something
defendant would do.
E
Defendant contends his convictions
must be reversed, or at least reduced, because (1) there is insufficient
evidence of specific intent to kill, as required to sustain the attempted
murder verdicts, and (2) there is insufficient evidence to support the
jury’s findings of premeditation and deliberation with respect to all the
verdicts.
The
governing legal principles are settled.
The test of sufficiency of the evidence is whether, reviewing the whole
record in the light most favorable to the judgment below, substantial evidence
is disclosed such that a reasonable trier of fact could find the essential
elements of the crime beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is
“reasonable, credible, and of solid value.â€
(People v. Johnson,
of the judgment the existence of every fact the trier could reasonably deduce from
the evidence.†(People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the
evidence (People v. Culver (1973) 10
Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (
353, 367). “Where the circumstances
support the trier of fact’s finding of guilt, an appellate court cannot reverse
merely because it believes the evidence is reasonably reconciled with the
defendant’s innocence.
[Citations.]†(
1741, 1747.) This standard of review is
applicable regardless of whether the prosecution relies primarily on direct or
on circumstantial evidence. (
1125.)
With
these principles in mind, we examine defendant’s claims.
“An attempt to commit a crime occurs
when the perpetrator, with the specific intent to commit the crime, performs a
direct but ineffectual act towards its commission. [Citations.]â€
(People v. Marshall (1997) 15
Cal.4th 1, 36.) Attempted murder
“‘requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.’ [Citations.]â€
(People v. Smith (2005) 37
Cal.4th 733, 739.) Implied malice — a
conscious disregard for life — does not suffice, even though it would for
murder itself. (People v. Stone (2009) 46 Cal.4th 131, 139-140;
A
defendant’s intent is rarely provable by direct evidence. Rather, such intent “‘must usually be derived
from all the circumstances of the attempt, including the defendant’s
actions. [Citation.]’†(People
v. Smith, supra, 37 Cal.4th at p. 741.) This is so even with respect to the intent to
kill (express malice) required to convict a defendant of attempted murder. (Ibid.) The California Supreme Court has
explained: “[T]he act of purposefully
firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with
express malice. That the shooter had no
particular motive for shooting the victim is not dispositive, although …, where
motive is shown, such evidence will usually be probative of proof of intent to
kill. Nor is the circumstance that the
bullet misses its mark or fails to prove lethal dispositive — the very act of
firing a weapon ‘“in a manner that could have inflicted a mortal wound had the
bullet been on targetâ€â€™ is sufficient to support an inference of intent to
kill. [Citation.]†(Id.
at p. 742.) “[E]ven if the shooting
was not premeditated, with the shooter merely perceiving the victim as ‘a
momentary obstacle or annoyance,’ the shooter’s purposeful ‘use of a lethal
weapon with lethal force’ against the victim, if otherwise legally unexcused,
will itself give rise to an inference of intent to kill. [Citation.]â€
(Ibid.)
“‘Whether
a defendant possessed the requisite intent to kill is, of course, a question
for the trier of fact. While reasonable
minds may differ on the resolution of that issue, our sole function is to
determine if any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. [Citations.]’ [Citation.]â€
(People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1552.)
Defendant
was convicted of attempting to murder Eulalia and Juan. The evidence adduced at trial is set forth at
length, ante, and we need not repeat
it here. We note, however, that Acosta
told Gray she saw defendant shooting between cars at the victims. Arceli told
Gray defendant was shooting at people
and “just missing.†Esmeralda told
Federico that defendant shot at Juan. Eulalia
testified that when she lifted her head after looking at the bodies, she heard
Maria Nativad say to kill the mother. Eulalia looked up again, saw defendant point
the gun at her, and turned to the left.
He then shot at her. She lifted
her head again to look at him and she turned again, and he shot at her again
and the shot passed by her, between her shoulder and her ear. Eulalia estimated that when defendant fired,
he was about five or six feet from her. He
then pointed the gun at Juan’s head, but the police arrived at that moment. Juan testified that he was face down in the
middle of the street when he heard shots and then a boom, and as he was getting
up, he looked up and saw someone (which other evidence showed was defendant)
pointing a gun at him. He looked the
other way, heard a bang, and thought he was hit, but he was not. He did not recall if defendant fired at him,
but defendant was shooting toward all the people who were at Jose’s house. Balladares testified that the person he saw
with the weapon was close to Eulalia and Juan, and that, although Balladares
did not see him shoot anybody at that point, the gun was pointing at their
heads.
The
foregoing evidence clearly is sufficient to permit a rational trier of fact to
conclude defendant specifically intended to kill Eulalia and Juan. Defendant argues, however, that the “weight
of the testimonial evidence†is that he was firing wildly, without any
particular aim. The record contains
evidence supporting such a scenario, or at least supporting the notion
defendant was firing randomly into the crowd associated with the Mendezes. However, “[o]ur task is not to
determine, for example, whether the weight
of the evidence might favor [a lesser verdict] for either or both victims. Our task is to determine whether there was
jury could decide†defendant harbored a specific intent to kill both
victims. (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111.)
The
California Supreme Court has determined that a person who intends to kill can
be guilty of attempted murder even if the person has no specific target in
mind. “An indiscriminate would-be killer
is just as culpable as one who targets a specific person.†(People
v. Stone, supra, 46 Cal.4th at p. 140.) Moreover, even if defendant was firing wildly
at times, this does not mean he did not harbor a specific intent to kill
particular named individuals. The
evidence to which defendant now points was before the jury — as was the
evidence supporting a finding he specifically intended to kill Eulalia and Juan. (See People
v. Houston (2012) 54 Cal.4th 1186, 1218-1219; People v. Jackson (1989) 49 Cal.3d 1170, 1201.)
“‘[A]ppellants
often mistakenly assume that, if the evidence against the judgment greatly
preponderates, a reversal is proper because of the absence of a
The test, however, is not whether there is substantial conflict, but
rather whether there is substantial
evidence in favor of the respondent.
If this “substantial†evidence is present, no matter how slight it may
appear in comparison with the contradictory evidence, the judgment will be
affirmed.… “Of course, all of the
evidence must be examined, but it is not weighed. All of the evidence most favorable to the
respondent must be accepted as true, and that unfavorable discarded as not
having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a
matter of law, the judgment must be affirmed.â€
[Citations.]’ [Citation.]†(In re
Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “Conflicts and even testimony which is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]â€
(People v. Maury (2003) 30
Cal.4th 342, 403.)
The
evidence here was clearly sufficient to support a finding of intent to
kill. Eulalia testified that she
perceived the bullet, which was fired from mere feet away, going past her head and
neck area. This bullet easily could have
inflicted a mortal wound had defendant’s marksmanship been better. (Cf. People
v. Ramos (2011) 193 Cal.App.4th 43, 48.)
Although it is unclear whether defendant actually fired at Juan, the
jury reasonably could have concluded defendant was preparing to inflict what he
intended to be a fatal shot, when the fortuitous arrival of the police stayed
his hand. (Cf. People v. Nelson (2011) 51 Cal.4th 198, 212-213.) “‘[T]he law of attempts would be largely
without function if it could not be invoked until the trigger was
pulled .…’†(Id. at p. 212.)
Defendant
is seeking to have us reweigh the evidence.
That is not our function.
Substantial evidence supports the attempted murder convictions.
B. Premeditation and
Deliberation
In
order to sustain a verdict of first degree murder on a theory of deliberation
and premeditation, more must be shown than an intent to kill. (People
v. Harris (2008) 43 Cal.4th 1269, 1286.)
‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or
arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.’ [Citations.]â€
(People v. Mayfield (1997) 14
Cal.4th 668, 767; accord, People v.
Jurado (2006) 38 Cal.4th 72, 118.)
Thus, “[a]n intentional killing is premeditated and deliberate if it
occurred as the result of reflection rather than unconsidered or rash impulse. [Citations.]
However, the requisite reflection need not span a specific or extended
period of time. Thoughts may follow each
other with great rapidity, and cold, calculated judgment may be arrived at
quickly. [Citations.]†(People
v. Nelson, supra, 51 Cal.4th at p. 213.) “Evidence concerning motive, planning, and
the manner of killing are pertinent to the determination of premeditation and
deliberation, but these factors are not exclusive nor are they invariably
determinative. [Citation.]†(People
v. Silva (2001) 25 Cal.4th 345, 368.)
Rather, they are merely a framework for appellate review, and need not
be present in any particular combination or afforded special weight. (People
v. Brady (2010) 50 Cal.4th 547, 562.)
Evidence
adduced at trial showed a strong motive for both the murders and the attempted
murders, specifically the bad blood between the Mendez and Salas families. Although perhaps not the primary instigator,
defendant was an active participant in previous conflicts between family
members. The evidence was also conducive
to a rational trier of fact finding: Esmeralda
overheard defendant and Fabian telephoning people to come over in anticipation
of trouble with those attending the Mendez barbecue, and that the Salas family
brought guns to the house the day of the shooting; defendant surreptitiously
obtained the gun used in the shooting beforehand, specifically with a view to
using it against the Mendezes; defendant retrieved the gun from his or his
parents’ house before he opened fire; and defendant continued to shoot despite Juan
urging him to stop and fight without guns. A rational trier of fact further could have
found — with respect both to the murders and the attempted murders — that the gun
was deliberately aimed at the victims’ heads from a distance close enough to
produce a mortal wound, either when the victims were not looking at the shooter
(in the case of Jose and Pablo) or when they were in a position of disadvantage
vis-Ã -vis defendant because they were trying to assist other victims or were on
the ground (in the case of Eulalia and Juan).
“[T]hough
the evidence is … not overwhelming, it is sufficient to sustain the jury’s
finding [of premeditation and deliberation].â€
(People v. Perez (1992) 2
Cal.4th 1117, 1127; see, e.g., People v.
Gonzalez, supra, 54 Cal.4th at p. 664 [sufficient evidence of
premeditation and deliberation where defendant planned to attack victim when
victim was especially vulnerable, in part because victim did not expect
confrontation, and defendant brought loaded rifle to ambush site; defendant had
motive to kill victim because of victim’s conflict with defendant’s brother;
when victim fought off initial knife attack, defendant escalated the violence
by handing accomplice a loaded, cocked rifle]; People v. Nelson, supra, 51 Cal.4th at p. 213 [same; defendant
“had ample time to premeditate and deliberate†when he took up firearm, climbed
out of moving car, sat on window frame, reached across roof, braced himself,
and aimed at victim]; People v. Manriquez
(2005) 37 Cal.4th 547, 577 [same; defendant and victim were engaged in
verbal altercation; several minutes elapsed, then defendant approached victim,
pulled firearm from waistband, cocked weapon, and fired several shots to
victim’s head, neck, and chest areas]; People
v. Memro (1995) 11 Cal.4th 786, 863 [same; defendant had to run from first
victim’s position to second victim’s position, and cut second victim’s throat
from behind; rational jury could have concluded he “intended death and no other
result†and considered options as he ran toward second victim];
87 [same; fact defendant brought loaded gun into store and shortly after used
it to kill unarmed victim reasonably suggested defendant considered possibility
of murder in advance], disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Accordingly, defendant is not entitled to
reversal of the jury’s findings that he acted with premeditation and
deliberation.
II
With
respect to the homicides, the prosecutor proceeded on the theory that Antonio
was the actual shooter and defendant aided and abetted him in the murders. There was evidence to support this theory. The defense proceeded on the theory defendant
acted alone, with the killings either being justified because they were
committed in defense of a family member or constituting no more than voluntary
manslaughter. There was evidence to support
the theory defendant was the actual shooter and Antonio was not involved in the
homicides.
Jurors
were told a person is guilty of a crime whether he or she committed it
personally, or aided and abetted the perpetrator, and they were instructed on
all applicable theories of liability with respect to defendant. They were not told the direct perpetration
instructions applied only to Antonio and the aiding and abetting instructions
only to defendant. Rather, they were
told that, with specified exceptions not pertinent here, all instructions
applied to each trial defendant.
Antonio, and the trial court declared a mistrial as to him. The court subsequently accepted verdicts with
respect to defendant; as previously described, the jury found him guilty of
first degree murder for both homicides.
Defendant
now contends the deadlock as to Antonio rendered the homicide verdicts
unreliable as to defendant. He says that
“[o]nce the deadlock was declared, aiding and abetting was no longer a proper
theory of liability as to [defendant]â€; hence, the trial court should have
refused the verdicts (or defense counsel should have requested that it do so),
corrected the jury instructions by removing aiding and abetting liability from
the jury’s consideration, and directed the jury to deliberate under the
corrected instructions, pursuant to which defendant could be convicted, if at
all, only as a direct perpetrator. He
reasons: “[I]f there was no homicide
committed by Antonio, there was no predicate act committed by Antonio and,
hence, [defendant] could not have aided and abetted Antonio. [¶]
Under these unique circumstances, the identity of the shooter was
imperative for purposes of the verdict and, given the jury’s inability to agree
that Antonio was the shooter …, it logically could not have agreed that
[defendant] was guilty of the homicides on a theory of aider and abettor
liability. Consequently, … it was
incumbent upon either the trial court or defense counsel to insure that aider
and abettor liability was withdrawn from the jury’s consideration for purposes
of a verdict consistent with the requirements of federal due process.â€
When
the state participates in the deprivation of personal liberty, due process
requires procedures necessary to ensure reliability in the fact-finding
process. (People v. Geiger (1984) 35 Cal.3d 510, 520, overruled on another
ground in People v. Birks (1998) 19
Cal.4th 108, 136; see, e.g., Ford v.
Wainwright (1986) 477 U.S. 399, 411; People
v. Mincey (1992) 2 Cal.4th 408, 445.)
Inconsistent verdicts — whether on separate charges against one
defendant or with respect to codefendants in a joint trial — are not rendered
unreliable, or otherwise infirm, by virtue of their inconsistency. (See, e.g., Harris v. Rivera (1981) 454 U.S. 339, 345 & fns. 13 & 14;
119-120; People v. Avila (2006) 38
Cal.4th 491, 600; People v. Palmer (2001)
24 Cal.4th 856, 860-861.) Moreover,
although the jury must unanimously agree the defendant is guilty of a specific
crime (People v. Russo (2001) 25
Cal.4th 1124, 1132), “‘as long as each juror is convinced beyond a reasonable
doubt that defendant is guilty of murder as that offense is defined by statute,
[the jury] need not decide unanimously by which theory he is guilty. [Citations.]
More specifically, the jury need not decide unanimously whether
defendant was guilty as the aider and abettor or as the direct
perpetrator. [Citations.] This rule of state law passes federal constitutional
muster. [Citation.]’ [Citation.]â€
(People v. Majors (1998) 18
Cal.4th 385, 408; accord, People v. Lewis
(2001) 25 Cal.4th 610, 654; see Schad
v. Arizona (1991) 501 U.S. 624, 630-632 (plur. opn. of Souter, J.);
1354, 1376.) “Not only is there no
unanimity requirement as to the theory of guilt, the individual jurors
themselves need not choose among the theories, so long as each is convinced of
guilt. Sometimes, as probably occurred
here, the jury simply cannot decide beyond a reasonable doubt exactly who did
what. There may be a reasonable doubt
that the defendant was the direct perpetrator, and a similar doubt that he was
the aider and abettor, but no such doubt that he was one or the other.†(People
v. Santamaria (1994) 8 Cal.4th 903, 919.)
In
the present case, the evidence adduced at trial unambiguously imposed on the
trial court a sua sponte duty “to instruct on aiding and abetting liability as
a general legal principle raised by the evidence and necessary for the jury’s
understanding of the case.
[Citation.]†(
483.) “Even without a request, a trial
court is obliged to instruct on ‘“general principles of law that are commonly
or closely and openly connected to the facts before the court and that are
necessary for the jury’s understanding of the caseâ€â€™ [citation], or put more concisely,
on ‘“general legal principles raised by the evidence and necessary for the
jury’s understanding of the caseâ€â€™ [citation].
In particular, instructions delineating an aiding and abetting theory of
liability must be given when such derivative culpability ‘form[s] a part of the
prosecution’s theory of criminal liability and substantial evidence supports
the theory.’ [Citation.]†(Id.
at p. 488.) As explained above,
substantial evidence supported the theory defendant was not the actual shooter
where Jose and Pablo were concerned, and the prosecutor relied on such a
complicity theory. Accordingly, “[a]ccomplice
liability for the [homicides] was thus a theory raised by the evidence and
necessary for the jury’s full understanding of the case; the court [would have]
erred in not instructing on this theory.
[Citation.]†(
Section
1161 provides, in pertinent part: “When
there is a verdict of conviction, in which it appears to the Court that the
jury have mistaken the law, the Court may explain the reason for that opinion
and direct the jury to reconsider their verdict .…†Apart from this limited circumstance, “a
trial court may not decline to accept a jury verdict, or refuse to hear the
verdict, simply because it is inconsistent with another verdict rendered by the
same jury in the same case.†(
521, 532-533; see People v. Scott (1960)
53 Cal.2d 558, 561-562, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649.)
the jury mistook the law.
Nor
did the jury’s deadlock as to Antonio somehow transform aiding and abetting
into an improper theory as to defendant.
Jurors were not constrained by the fact the prosecution chose to focus
on a particular theory. (
203; see People v. Alexander (2010)
49 Cal.4th 846, 921.) The jury
unanimously found defendant guilty, beyond a reasonable doubt, of murdering Jose
and Pablo. It does not matter whether,
in so finding, any individual juror believed defendant guilty as the direct
perpetrator or as an aider and abettor, or that the juror could not decide
exactly what defendant did but was convinced of defendant’s guilt. That jurors could not agree on whether
Antonio was culpable does not change this or render their verdicts unreliable
as to defendant.
Defendant
quotes People v. Perez (2005) 35
Cal.4th 1219 (Perez), in which the
California Supreme Court said: “[Section
31] extends criminal liability as principals in a crime to ‘[a]ll persons
concerned in the commission of a crime,’ and all those who ‘aid and abet in its
commission.’ As this language makes
plain, the commission of a crime is a prerequisite for criminal liability. If the defendant himself commits the offense,
he is guilty as a direct perpetrator. If
he assists another, he is guilty as an aider and abettor. It
follows, therefore, that for a defendant to be found guilty under an aiding and
abetting theory, someone other than the defendant must be proven to have
attempted or committed a crime; i.e., absent proof of a predicate offense,
conviction on an aiding and abetting theory cannot be sustained.†(Id.
at p. 1225, italics added.) Defendant
says it is likely he was convicted on an aiding and abetting theory without a
predicate offense, because the prosecutor was unable to prove to 12 people,
beyond a reasonable doubt, that Antonio was the shooter. Defendant says this deadlock meant the
following: “Without proof of a criminal
act by Antonio to which [defendant] contributed, the prosecution could not
convict [defendant] as an aider and abettor.
[Citations.]†(
The
quotes from Perez must be read in
context of the issues presented in that case.
So read, they do not assist defendant.
In
Perez, the defendant was arrested in
possession of methamphetamine precursors, which he said he intended to sell to
a man known to him as Antonio. He was
charged with possessing precursors with intent to manufacture
methamphetamine. The prosecutor
proceeded under two theories:
(1) Perez was liable as a direct perpetrator because he possessed
the precursors and personally intended to manufacture methamphetamine, or,
alternatively, (2) Perez was liable as an aider and abettor because he
possessed the precursors with the intent to sell them to another person to be
used in manufacturing methamphetamine. (
The
high court first considered whether a person could be guilty of aiding and
abetting absent proof of criminal conduct by some
| Description | This case arises out of an altercation between members and friends of two families who lived in the 4600 block of East Turner Avenue, Fresno.[1] As of June 2009, Maria Arceli Mendez (Arceli) and her husband, Jose Mendez (Jose), lived at 4677 with their children, who included Esmeralda Mendez (Esmeralda), Jose Balderas, Ruben Balderas (Ruben), and Josue Balderas (Josue). The Salas family lived at the two addresses directly east of the Mendez residence. Benito Sanchez Salas (defendant), his daughter, and Rebecca Hernandez (Hernandez) lived in the guest house at 4681, next door to the Mendez home. Defendant’s father Alberto Salas, Sr. (Alberto), mother Maria Nativad Sanchez (Maria Nativad), and brother Jose Salas (Sam) lived in the main house at that address. Defendant’s brother Antonio Sanchez Salas (Antonio) and Antonio’s son Junior Jesse Salas (Junior Jesse) resided at 4687, the house immediately east of 4681. Defendant’s brother Fabian Salas (Fabian) was staying at 4687 at the time. Defendant also had three other brothers: Miguel Salas (Miguel), Alberto Salas, Jr. (Junior), and Santos Salas (Santos). |
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