P. v. Saldana
Filed 5/15/13
P. v. Saldana CA2/2
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
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ISMAEL SALDANA, Defendant and Appellant. | B238491 (Los Angeles County Super. Ct. No. KA092407) |
APPEAL from a judgment of the Superior Court of
County. Mike Camacho,
Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Enrique Ismael Saldana (defendant) appeals from his conviction of
three counts of attempted murder and
three counts of assault with a firearm. He contends that the verdicts were not
supported by substantial evidence.
Finding no merit to defendant’s contention, we affirm the judgment.
BACKGROUND
Procedural history
An
amended information charged defendant and Eduardo Galicia (Galicia)
with the attempted willful, deliberate, and premeditated murder (Pen. Code, §
164/187, subd. (a))
title="">[1] of Daniel Gonzalez (Gonzalez) in count 1,
Rafael Hernandez (Hernandez) in count 2, and Salvador Ramirez (Ramirez) in
count 3. Counts 4, 5, and 6 alleged that
defendant and Galicia
committed an assault with a firearm upon the same three victims, in violation
of section 245, subdivision (a)(2). The
amended information specially alleged that a principal personally and
intentionally discharged a firearm within the meaning of section 12022.53,
subdivisions (b), (c), and (e)(1); and that for purposes of section 186.22,
subdivision (b)(1)(C), the crimes were committed for the benefit of, at the
direction of, and in association with a criminal street gang.
Defendant
was charged in count 7 with the unlawful driving or taking of a vehicle in
violation of Vehicle Code section 10851, subdivision (a); count 8 alleged a
misdemeanor violation of section 12025, subdivision (a)(2), carrying a
concealed firearm; and count 9 alleged that defendant carried a loaded firearm
on his person in a public place in an incorporated city, in violation of
section 12031, subdivision (a)(1), also a misdemeanor.
Defendant
and Galicia
were tried together with separate juries.
After the prosecution rested its case, the trial court granted
defendant’s section 1118.1 motion in part
deliberation allegation as to counts 1, 2, and 3. The jury convicted defendant of all counts as
amended and found true the special allegations.
On November 29, 2011, the trial court
sentenced defendant to a total prison term of 25 years. The principal term consisted of the low term
of five years as to count 1, with 20 years for the personal firearm discharge
by a principal. The trial court imposed
an additional 10 years for the use of a firearm but stayed the enhancement
under section 654. The trial court also
stayed the 10-year gang enhancement, as required by section 12022.53,
subdivision (e)(2). As to counts 2 and
3, the court imposed concurrent five-year low terms, plus 20 years for the
firearm use, and stayed the firearm discharge and gang enhancement. The court chose the low term of two years as
to each of counts 4, 5, and 6, and stayed them under section 654. The low term of 16 months for count 7, a concurrent
one-year term for count 8, and a one-year term for count 9 were all imposed and
stayed pursuant to section 654.
Defendant was ordered to pay mandatory fines and fees, register as a
gang member, and to provide a DNA sample.
Defendant’s total presentence custody credit consisted of 480 days.
Defendant
filed a timely notice of appeal from the judgment.
Prosecution evidence
Ramirez,
Hernandez, and Gonzalez all testified at trial that on October 27, 2010, they were walking home from
school near Garey and Franklin Avenues when a car circled around and stopped
near them. The occupants gave them “bad
looks†described as “mad-dogging†and were “throwing†gang signs. The car stopped in a restaurant driveway,
blocking the sidewalk and preventing the three from continuing. Two men emerged from the back seat of the
car, approached the three young men, said “This is Olive Street†or “this is
Pomona Sur Olive†and gave their names as “Sicko†and “Lalo.â€
and in court as the man who identified himself as Lalo and the photograph of
another man as depicting Sicko.
Hernandez also identified Galicia
in court as one of the two men who assaulted him and his two companions.
One of
the two men asked Ramirez whether he was still a “guppy†-- a disrespectful
term for a member of the 12th Street gang or the tagging crew “Krazy Crowd†or
“KC.†Ramirez replied that he did not
“bang it†anymore. One of the men then
assaulted Ramirez and they fought until Gonzalez lifted his shirt, displayed
his firearm, and told them to go away.
Galicia and Sicko ran back to their car and obtained guns from either
the trunk or the back seat. As Galicia
and Sicko ran toward the car, Gonzalez saw a third man in the car displaying a
gun. Ramirez testified he saw Galicia
point his gun directly at Ramirez and fire.
After five or more gunshots, Gonzalez used his gun to fire once into the
air as he and his companions ran away from Galicia and Sicko.
Detective
Greg Freeman testified as the investigating officer and a gang expert. He had been assigned to the Pomona Police
Department gang unit for more than 10 years and described his training and
experience investigating and interacting with Pomona gang members, particularly
the “Pomona Sur Olive†or “Olive Street†gang.
He testified that Olive Street had several rivals, but primarily 12th
Street gang. The territory claimed by
12th Street gang included the area surrounding Garey and Franklin Avenues.
Detective
Freeman testified that gang members had common symbols and signs, which he
described. For example, 12th Street
gang’s mascot was a shark, while Olive Street gang chose the dolphin because
dolphins kill sharks. Olive Street
members wore hats and clothing with the letter “P†or “O†and hand signs
included those letters formed with fingers.
Olive Street had over 100 members, and the gang’s primary activities
were selling narcotics, carjacking, assault, assault with a deadly weapon,
attempted murder, murder, car theft, graffiti, and witness intimidation. Certified court records showed the
convictions of three Olive Street gang members, one for possession of a firearm
in 2010 and two for attempted murder in 2007.
Detective
Freeman defined the term “putting in work†as doing anything to better the
gang, from writing graffiti to accompanying other members in order to assault,
disrespect, or kill a rival gang member, or to act as a lookout. He added that shootings were often committed
by younger members seeking to elevate their status within the gang. He explained that the more work a member put
in, the greater their status and respect.
Respect is important to a gang and its members; the more respect a
member earned, the more power he gained within the gang.
Detective
Freeman was assigned, with Detective Berger, to investigate the shooting in
this case. They obtained a description
and partial license plate number of the four-door Honda used by the
shooters. The day after the shooting,
they went to Olive Street gang territory to look for the car, saw defendant
driving it, and followed him through the neighborhood. When defendant parked, the detectives stopped
and asked to talk to him. After
initially starting toward them, he turned and fled in the opposite direction.
The
detectives gave chase. When defendant’s
flight was ended by a tall brick wall he was taken into custody and patted
down. Detective Freeman found six
.22-caliber bullets in his pocket and after some persuasion, defendant
eventually admitted that during the pursuit he had thrown the gun onto a
rooftop on Angela Street where Detective Freeman had lost sight of him for a
moment. The gun, a fully loaded
.22-caliber revolver with no safety switch, was recovered from the roof.
Detective
Freeman identified a photograph of defendant’s nearly heart-shaped “O†and “Sâ€
tattoos on his left ring finger, signifying that he was “married†to the
gang. Detective Freeman also presented
photographs of items with Olive Street gang writing which were found in the
Honda, including a notebook page with “Pomona Sur Olive†and other gang
graffiti written on it, a checkbook cover, and a pocket atlas with “Smileyâ€
(defendant’s gang moniker) written on it.
The writings and defendant’s tattoos indicated to Detective Freeman that
defendant was a member of Olive Street gang.
Detective
Freeman’s opinion that Galicia was also a member of Olive Street gang was based
upon Galicia’s gang related tattoos, his admissions that he had been a member
of the gang for six months to a year, and that his nickname was Serio. Galicia also told Detective Freeman that his
family-given nickname was Lalo. In a photograph
depicting Sicko, Detective Freeman pointed out the Olive Street gang tattoos
that suggested Galicia’s membership in the gang. Detective Freeman explained that tattoos were
“badges†earned by putting in violent “work†for the gang; and that anyone else
would be punished, maybe killed, for having such a tattoo.
Detective
Freeman interviewed defendant after his arrest on the day following the
shooting. The interview was video
recorded and played for the jury.
Defendant told Detective Freeman that Sicko and Galicia, accompanied by
two young women, Vanessa and Lala, found him and suggested that they “go
fishing†for 12th Street gang members.
Defendant agreed and drove to Garey Avenue where one of them recognized
some “kids†and told him to pull over in front of them.
Defendant
told Detective Freeman that when he stopped, Sicko and Galicia got out of the
car and one of them said, “Fuck KCâ€; they then walked directly to the “smallest
guy†of the three and “went crazy†on him.
The small guy fought back until one of the other three pulled out a gun,
cocked it and said, “Get the fuck out of here.â€
At that moment, Galicia went back to the car to get the “strap†-- the
same .22-caliber revolver found on the roof.
Galicia retrieved the gun from its usual place in the dash where the
stereo used to be and then ran after the three young men, firing four or five
times at them as they were running away.
The young man who had brandished his gun, then fired into the air. Defendant claimed there had been only the one
gun in the car and after the shooting, Galicia left it in the car for
defendant.
Initially
defendant denied having a gang nickname.
Later in the interview, he admitted that he was called “Smiley.â€
Galicia’s testimony
Galicia testified that he had been a member of Olive
Street gang for about six months prior to the shooting, claiming that he joined
the gang for protection after he had been repeatedly assaulted by Krazy Crowd
members. Galicia identified photographs
demonstrating his allegiance to the gang.
They depicted Galicia, Sicko, and another member “throwing up Olive
Street†gang signs by forming letters with their hands.
Galicia
admitted the rivalry between Olive Street gang members and “guppies,†their
insulting term for members of 12th Street gang and Krazy Crowd. He and other Olive Street members often went
into 12th Street territory to instigate fights, or as he expressed it, “punk
some guppies.†Galicia explained this
was meant to show their disrespect for 12th Street gang and let them know what
Olive Street gang represented. When 12th
Street gang members were met, Olive Street members would begin by confronting
them and announcing their gang, usually saying, “This is Pomona Sur Olive.†One or more of the gang members would carry a
gun and would sometimes shoot rival gang members in retaliation for showing
disrespect, such as by writing their graffiti in Olive Street territory. A gun was brought every time that Galicia had
gone fishing for guppies with fellow gang members, and Galicia was certain that
someone had “a strap†when they decided to go punk some guppies on this
occasion.
Galicia
claimed defendant and Sicko instigated the fight and that defendant fired the
shots. Galicia testified defendant was
putting in work at the time of the shooting.
Galicia explained that instigating fights in rival territory and
shooting rival gang members were ways that younger members put in work for the
gang in order to gain respect within the gang.
Galicia claimed he was inside the car at that time of the shooting,
never had a weapon in his hand, and never shot at anyone. Galicia also claimed that defendant placed
his gun back under the driver’s seat after firing it and drove to Garfield Park
where he reloaded the gun and threw away the empty shells. After walking around the park for awhile,
they all spent the night in a garage on Angela Street.
DISCUSSION
Defendant contends that his convictions for attempted
murder and assault with a firearm were not supported by substantial evidence.
When a criminal conviction
is challenged as lacking evidentiary support, “the court must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence -- that is, evidence which is reasonable,
credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment
the existence of every fact the jury could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]â€
(Ibid.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.)
Instead of summarizing the
evidence in the light most favorable to the verdicts, defendant has reduced it
to “its bare bonesâ€; he contends that the evidence showed that, at most, he
aided and abetted a simple assault upon Ramirez, and that his only involvement
was driving and attempting to stop the fight.
It is defendant’s position that we must disregard Galicia’s self-serving testimony, as
it conflicts with the testimony of two of the victims who identified Galicia as
the shooter and defendant as a nonparticipant in the shootings. Further, defendant contends that we must give
weight to his own statement that he was unwilling to go “fishing†with the
others, and to the absence of an express mention of his knowledge they intended
to use a gun.
Defendant forgets that a
third victim, Gonzalez, testified that the man who remained in the car
displayed a firearm while the other two shooters ran to the car to get their
weapons. The evidence thus supported a
finding that all three men had firearms. Moreover, our review is not limited to
“‘isolated bits of evidence.’†(People
v. Johnson, supra, 26 Cal.3d at
p. 577.) We do not reweigh the evidence
or resolve conflicts in the evidence. (
1181.) ‘“[W]e must presume in support of the judgment the existence of
every fact that the trier of fact could reasonably have deduced from the
evidence. [Citation.] Thus, if the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant reversal of the judgment.
[Citation.]’ [Citation.]†(
It
was for the jury to believe or disbelieve some or all of Galicia’s testimony and
defendant’s statement to Detective Freeman.
(See People v. Williams (1992) 4 Cal.4th 354, 364.) Further, the jury was entitled to reject some
portions of the testimony and statement while accepting others. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) “Weaknesses
and inconsistencies in eyewitness testimony are matters solely for the jury to
evaluate.†(Ibid.) “On appeal that portion which supports the
judgment must be accepted, not that portion which would defeat, or tend to
defeat, the judgment. [Citations.]†(People
v. Thomas (1951) 103 Cal.App.2d 669, 672.)
Nor may we discard evidence that defendant finds self-serving or weak;
on the contrary, we must discard the evidence that was unfavorable to the
prevailing party. (
1485, 1497.)
Here, the prosecution theory
was that defendant was an aider and abettor and the trial court thus instructed
the jury as to the general principles of aiding and abetting, as well as the
natural and probable consequences doctrine.
“[A] person aids and abets the commission of a crime when he or she,
acting with (1) knowledge of the unlawful purpose of the perpetrator; and
[with] (2) the intent or purpose of committing, encouraging, or facilitating
the commission of the offense, (3) by act or advice aids, promotes, encourages
or instigates, the commission of the crime.â€
(People v. Beeman (1984) 35
Cal.3d 547, 561.) “‘A person who
knowingly aids and abets criminal conduct is guilty of not only the intended
crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the
intended crime. The latter question is
not whether the aider and abettor actually
foresaw the additional crime, but whether, judged objectively, it was
[Citation.]†(
920 (Medina).)
Factors that suggest aiding
and abetting include presence at the scene, companionship, conduct before and
after the crime, and flight. (
statement and the testimony of the victims, Detective Freeman, and Galicia
provided ample evidence of all the factors:
defendant agreed to drive his companions to the territory claimed by
rival 12th Street gang for the purpose of searching out 12th Street or Krazy
Crowd members and instigating a fight; defendant drove to the area and blocked
the path of the victims at the request of one of his companions;
defendant watched the fight and was close enough to hear what was said; when Galicia and Sicko ran
back to the car for guns, defendant remained in the car displaying a gun;
defendant remained with his companions all night afterward; the next day
defendant was arrested after detectives saw him driving the car used in the
incident; and the
gun used in the shooting was recovered from the rooftop where defendant threw
it while fleeing the detectives.
The same
evidence supports defendant’s conviction under the natural and probable
consequences doctrine. “Liability under the natural
and probable consequences doctrine ‘is measured by whether a reasonable person
in the defendant’s position would have or should have known that the charged
offense was a reasonably foreseeable consequence of the act aided and
abetted.’ [Citation.]†(Medina,
supra, 46 Cal.4th at p. 920.) “A reasonably
foreseeable consequence is to be evaluated under all the factual circumstances
of the individual case [citation] and is a factual issue to be resolved by the
jury. [Citations.]†(Ibid.) “When rival gangs clash today, verbal
taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is
unaware of these realities, and we see no reason the courts should turn a blind
eye to them.†(People v. Montes (1999) 74
Cal.App.4th 1050, 1056.) “Given the
great potential for escalating violence during gang confrontations,†it is
reasonably foreseeable that one gang member would fire a weapon at a rival gang
member under such circumstances. (
Thus, in the context of a
gang shooting, firing a gun may be a reasonably foreseeable consequence of the
gang’s assault on rival gang members where there is evidence of ongoing rivalry
involving past acts of violence, even where an actor does not know whether his
fellow gang members are armed on the particular occasion. (Medina,
supra, 46 Cal.4th at pp. 920-921, 924; and see cases cited at pp.
920-921.) Nevertheless, substantial
evidence supported a reasonable inference that defendant did in fact know that
his fellow gang members were armed and that defendant was armed as well: defendant admitted he was driving the car in
which a special compartment had been fashioned in the dashboard to hold a gun;
there may have been as many as three guns in the car as Gonzalez saw the man
who stayed in the car displaying a firearm while the other Olive Street gang
members retrieved theirs from the car; and Galicia testified that gang members
usually carried guns when going into enemy territory to instigate fights.
The
elements of attempted murder are “the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing. [Citations.]†(People
v. Lee (2003) 31 Cal.4th 613, 623.)
When a gang member fires multiple shots at close range at a group of
people in rival gang territory, it is reasonable to infer a specific intent to
kill. (See People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002;
Cal.App.4th 1180, 1192.) Here,
substantial evidence supported a finding that while in a rival gang’s
territory, defendant’s fellow gang member Sicko or Galicia or both, fired at
the victims and thus committed both elements of attempted murder.
Substantial
evidence also established defendant’s liability as an aider and abettor, either
directly or under the natural and probable consequences doctrine. Defendant encouraged and facilitated the shooting by driving
to the location, blocking the victims’ path, and displaying a weapon while his
companions retrieved theirs, suggesting he knew they intended to fire on the
victims. It was also reasonably
foreseeable that defendant’s companions would attempt to kill rival gang
members after instigating a fight with them in their territory, particularly
since guns were within reach. We conclude that defendant was
properly convicted as a direct aider and abettor (see People v. Beeman, supra,
35 Cal.3d at p. 561) or under the natural and probable consequences
doctrine. (See Medina, supra, 46 Cal.4th at p. 920.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
___________________________,
Acting P. J.
ASHMANN-GERST
___________________________,
J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
further statutory references are to the Penal Code, unless otherwise indicated.
1118.1 provides in relevant part that “the court on motion of the defendant or
on its own motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry of a judgment
of acquittal of one or more of the offenses charged in the accusatory pleading
if the evidence then before the court is insufficient to sustain a conviction
of such offense or offenses on appeal.â€
