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P. v. Salgado

P. v. Salgado
01:24:2013






P








P. v. Salgado

























Filed 1/18/13 P. v. Salgado
CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>






THE PEOPLE,



Plaintiff
and Respondent,



v.



DANIEL MURILLO SALGADO,



Defendant
and Appellant.








E053873



(Super.Ct.No.
RIF148839)



OPINION






APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Jean P.
Leonard, Judge. Affirmed.

R. Clayton Seaman,
Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia, and Lynne G. McGinnis,
Deputy Attorneys General, for Plaintiff and Respondent.

A
jury found defendant and appellant, Daniel Murillo Salgado (defendant), guilty
as charged of one count of first degree
murder
, one count of discharging a firearm at an occupied motor vehicle,
two counts of attempted murder, and one count of discharging a firearm from a
motor vehicle. In connection with each
count, the jury also found true various sentence enhancements based on
defendant’s alleged use of a firearm and criminal street gang involvement. In addition, the jury found true the special
circumstance allegation in connection with the murder and attempted murder
charges that defendant was motivated to commit the crimes because of the
victims’ race. Based on the jury’s
guilty verdicts and true findings, the trial court sentenced defendant to serve
a total term in state prison of life without the possibility of parole on the
first degree murder conviction, and a consecutive term of 117 years to life on
the remaining counts, sentence enhancements, and special circumstance findings.

The charges all
stem from a shooting that took place in the afternoon on October 5, 2002, in Riverside when a white truck in which defendant was the front passenger
chased a red Camaro down city streets.
During the pursuit, defendant fired shots at the Camaro. One bullet hit 13-year-old Markess Lancaster
in the chest, and he died from that injury.


Defendant raises
three claims of error in this appeal.
First, he contends the trial court should have instructed the jury that
the driver and other passenger in the Camaro were accomplices of defendant
because someone in the Camaro reputedly fired a shot at defendant and his four
companions in the white truck and thereby committed a provocative act
murder. Because they were accomplices,
defendant contends the trial court should also have instructed that the
testimony of the two Camaro witnesses had to be corroborated. Next, defendant contends the trial court
erred by precluding defendant from mentioning a polygraph examination. According to defendant the polygraph was
pertinent to explain why Jesus Gomez, the subject of the polygraph and a
passenger in the white truck at the time of the shooting, had changed his
story. Finally, defendant contends there
was insufficient evidence to support the jury’s true findings on the hate crime
special circumstance and sentence enhancements, and therefore the trial court
erred in denying defendant’s motions for acquittal on those allegations.

We disagree with
defendant’s claims of error, and therefore we will affirm.

FACTS

On October 5, 2002, Tyshawn Guidry, Raymond Atkins, and Markess Lancaster, all of whom
are African Americans, drove to a liquor store in Riverside in
Guidry’s red Camaro. After parking the
car, Guidry got out and walked toward the liquor store entrance. On his way, he passed by three Hispanic men
standing near a white Chevy extended cab pickup truck. Guidry noticed a fourth man sitting in the
back seat of the pickup truck. Guidry
made eye contact with one of the men, later identified as the driver of the
truck, whom Guidry described as “mad dogging” him. Guidry went inside the store. While in line to pay for his purchase, Guidry
noticed the man in front of him was wearing a tank top and had tattoos, one of
which was “SUR.” When he left the store and
walked back toward his car, Guidry noticed the man with the SUR tattoo had
joined the three other men standing near the white pickup truck. All the men were turned facing toward Guidry
and staring at him.

Guidry saw the four
men get into the pickup truck and join the fifth man, who had remained seated
in the back passenger seat. The man with
the SUR tattoo, whom Guidry had seen inside the liquor store, was seated in the
front passenger seat of the pickup truck.
Guidry got into his car and was getting ready to back out of the parking
space when he looked in the rearview mirror.
The white pickup truck carrying the five Hispanic males had pulled up
and stopped behind Guidry’s Camaro.
After a few seconds, the pickup truck drove off. Jesus Gomez, one of the rear passengers in
the pickup truck, claimed the people in Guidry’s Camaro flashed gang signs at
them as they passed by the Camaro.
According to Guidry, no one in either vehicle flashed gang signs.

The pickup truck pulled out of the parking lot and on
to the street. Guidry pulled out too and
eventually passed the pickup truck.
Jesus Gomez claimed that all three people in the Camaro flashed gang
signs as they passed the white pickup truck.
As he continued down the street, Guidry noticed that he was being
followed by the pickup truck.

Guidry sped up, at one point driving 85 miles per
hour, and the truck kept up with him. As
he turned on to another street, he and the driver of the truck both ran through
a red light. The white truck continued
to chase Guidry until he slowed down to make a right turn on to another
street. As Guidry was making the turn,
the pickup truck pulled up on his left.
Guidry saw a hand holding a gun come out of the passenger window. The man holding the gun was the man with the
SUR tattoo who had been in line in front of Guidry at the liquor store, later
identified as defendant. Jesus Gomez
also identified defendant as the person in the white pickup truck who had a
gun. Gomez did not actually see
defendant pull the trigger, but he did hear gunfire. Guidry said that five or six rounds were
fired. As Guidry completed the turn, Lancaster said he
had been hit. Guidry drove to a hospital
where Lancaster died a short time later.

Additional facts will be recounted below as pertinent
to the issues defendant raises in this appeal.

DISCUSSION

1.

SUA SPONTE DUTY TO INSTRUCT THAT OCCUPANTS OF CAMARO WERE
ACCOMPLICES OF DEFENDANT


Defendant contends
that a witness is an accomplice if that person is subject to prosecution for
the same offense as the defendant at the time the acts were committed. Based on that definition, defendant contends
the occupants of the Camaro were his accomplices, and therefore their testimony
had to be corroborated, because they also could have been prosecuted for murder
under the provocative act murder theory.
Relying on that reasoning, defendant contends the trial court had a sua
sponte duty to instruct that if the jury determined Guidry and Atkins (the two
other people in the Camaro at the time of the shooting) were accomplices to the
charged crimes, they could not find defendant guilty based solely on their
testimony. We disagree.

We begin our
discussion with the principle that a trial court must instruct sua sponte only
where there is substantial evidence to support such an instruction. In other words, an accomplice instruction
must be given sua sponte if there is substantial evidence that a witness is an
accomplice. (People v. Boyer (2006) 38 Cal.4th 412, 466.)

Although we do not share defendant’s view regarding
accomplice liability based on provocative act murder, we will not address that
aspect of his claim. Assuming
defendant’s provocative act murder theory is correct, it is not supported by
any evidence. Provocative act murder
refers to “‘that category of intervening-act causation cases in which, during
commission of a crime, the intermediary (i.e., a police officer or crime
victim) is provoked by the defendant’s conduct into [a response that results]
in someone’s death.’ [Citation.]” (People
v. Concha
(2009) 47 Cal.4th 653, 663.)
Typically the response consists of firing a gun at the defendant but
killing someone else.

There is no evidence in this case to support
liability based on provocative act murder.
In order to extend liability for Lancaster’s death to Guidry and Atkins,
who were Lancaster’s companions in the Camaro, there would have to be
substantial evidence to show that someone in the Camaro fired or threatened to
fire the first shot and thereby provoked defendant to shoot back and kill
Lancaster. Although Travis Lawson
testified in pertinent part that he saw shots fired by a person leaning out of
the passenger window of the Camaro, that testimony does not establish the
provocative act because it does not indicate who fired or threatened to fire
the first shot.href="#_ftn1"
name="_ftnref1" title="">[1] Moreover, the consensus at
trial was that Lawson was mistaken and that the shots were all fired from the
vehicle in which defendant was riding.
The only other evidence regarding who fired the first shot is the
testimony of Jesus Gomez who said no shots were fired from the Camaro. The trial court instructed the jury that if they
found Gomez was an accomplice, they could not convict defendant based only on
his testimony.

To the extent defendant bases his provocative act
murder theory on some act purportedly committed by the people in the Camaro
other than firing a weapon, we must reject that claim. Although there is evidence that defendant and
his friends believed the occupants of the Camaro had flashed gang signs and
thereby instigated the ultimate confrontation, we conclude as a matter of law
that such acts are not sufficiently provocative to warrant a deadly
response. Provocative act murder
requires that the killing be a reasonable response to an act that is likely to
cause death. (People v. Concha, supra,
47 Cal.4th at p. 662.) Flashing gang
signs is not an act likely to cause the death of the person at whom the signs
were flashed. Therefore, the shooting
cannot be a reasonable response to that act.

Because there is no evidence to support defendant’s
theory of accomplice liability, we must reject his first claim of error.

2.

EXCLUSION OF POLYGRAPH EVIDENCE

Although raised as
separate issues, defendant contends the trial court erred by precluding him
from mentioning a polygraph examination in his cross-examination of Jesus Gomez
and his direct examination of Investigator Heard. Again, we disagree.

The pertinent facts
are that Jesus Gomez initially denied being involved with the shooting. Gomez then changed his story and identified
defendant as the shooter. Later during a
polygraph examination conducted by Investigator Heard, Gomez again changed his
story and admitted he was the shooter after the investigator accused Gomez of
not being truthful. Gomez then later
recanted that statement and again named defendant as the shooter.

Defendant wanted to bring out the fact that Gomez
changed his story in response to Investigator Heard’s accusation during the
polygraph examination that Gomez was not being truthful. The trial court ruled that defendant could
not mention the polygraph examination at trial.
Defendant asserts various reasons why the trial court’s ruling was
incorrect. We disagree with defendant.

Our analysis begins and ends with Evidence Code
section 351.1, subdivision (a), which states, “Notwithstanding any other
provision of law, the results of a polygraph examination, the opinion of a
polygraph examiner, or any reference to
an offer to take, failure to take, or taking
of a polygraph examination
, shall not be admitted into evidence in any
criminal proceeding, including pretrial and post conviction motions and hearings,
or in any trial or hearing of a juvenile for a href="http://www.fearnotlaw.com/">criminal offense, whether heard in
juvenile or adult court, unless all parties stipulate to the admission of such
results. [Emphasis added.]”

In short, and simply stated, any reference to taking
of a polygraph examination is inadmissible in a criminal case unless the
parties stipulate otherwise. The parties
did not stipulate that reference to the polygraph examination was admissible in
evidence in this case. Defendant’s
contrary claims notwithstanding, the trial court properly excluded reference to
the polygraph examination during defendant’s cross-examination of Jesus Gomez,
and direct examination of Investigator Heard.

3.

DEFENDANT’S MOTION FOR ACQUITTAL

Defendant moved for
acquittal on the so-called hate crime special circumstance allegation in count
1 (Pen. Code, § 190.2, subd. (a)(16)) and sentence enhancements alleged in
connection with counts 1 through 5 (Pen. Code, § 422.75, subd. (c)) on the
ground that the prosecution’s evidence was insufficient to show defendant acted
out of racial hatred or animus.
Defendant argued in the trial court, as he does in this appeal, that the
prosecutor’s evidence was directed at showing racial animus on the part of some
members of the Hispanic gang in which defendant was a member, but the evidence
failed to show defendant harbored such animus and that he acted with the
specific intent to kill based on that racial animus. The trial court denied defendant’s motion for
acquittal. We conclude the trial court
correctly denied that motion because substantial evidence supports the special
circumstance and enhancement true findings.

“‘The standard applied by a trial court in ruling
upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1
is the same as the standard applied by an appellate court in reviewing the
sufficiency of the evidence to support a conviction, that is, “whether from the
evidence, including all reasonable inferences to be drawn therefrom, there is
any substantial evidence of the existence of each element of the offense
charged.”’ [Citation.] ‘The purpose of a motion under [Penal Code]
section 1118.1 is to weed out as soon as possible those few instances in which
the prosecution fails to make even a prima facie case.’ [Citations.]
The question ‘is simply whether the prosecution has presented sufficient
evidence to present the matter to the jury for its determination.’ [Citation.]
The sufficiency of the evidence is tested at the point the motion is
made. [Citations.] The question is one of law, subject to
independent review. [Citation.]” (People
v. Stevens
(2007) 41 Cal.4th 182, 200.)

In order to find the hate crime special circumstance
true, the evidence had to show defendant intentionally killed the victim
because of his race. (Pen. Code,
§ 190.2, subd. (a)(16).) Similarly,
a true finding on the sentence enhancement alleged in connection with counts 1
through 5 required the prosecutor to prove that defendant committed the crime
in whole or in part because of the victim’s race. (Pen. Code, § 422.75, subd. (c).) The trial court instructed the jury, in
pertinent part, that if the evidence showed defendant had more than one reason
to commit the murder, one of which included the deceased person’s race, that
reason must have been a substantial factor motivating the defendant’s
conduct. “A substantial factor is more than a trivial or remote factor, but it
does not need to be the only factor that motivated the defendant.” (CALCRIM No. 729.) The trial court instructed the jury that in
order to find the racial bias sentence enhancement true, the evidence had to
show defendant was biased against the victim and that the bias motivation
caused defendant to commit the alleged acts.
If the jury found defendant had more than one reason to commit the
alleged acts, racial bias must have been a substantial motivating factor in
order for the jury to find the allegation true.
(CALCRIM No. 1354.)

The evidence in this case is undisputed. According to the prosecution’s expert witness
on criminal street gangs, defendant was a member of East Side Riva (ESR), a
criminal street gang whose members are Hispanic and known to have animosity
toward African Americans in general, and 1200 Blocc Crips, in particular. Jesus Gomez testified that someone in the
truck recognized Guidry, the driver of the Camaro, as the brother of a 1200
Blocc Crip, and when defendant and the others in the truck drove by, the
occupants of the Camaro threw gang signs at them. Although the prosecutor presented evidence
regarding ESR and its members, including evidence that ESR members had
assaulted and shot African Americans, defendant was not responsible for, or
otherwise linked to, any of that evidence.
For example, the prosecutor showed photographs of graffiti found in
public places, and also on items recovered from searches conducted at the homes
of other gang members, that included defendant’s purported gang moniker, Sosyo.href="#_ftn2" name="_ftnref2" title="">[2] However, there was no
evidence to show defendant was responsible for any of that graffiti, or that he
participated in any of the crimes committed by other gang members. Therefore, the only evidence the prosecution
presented to prove the hate crime special circumstance and the racial bias
sentence enhancements was that defendant was a member of a criminal street gang
that was known to dislike African Americans, and he fired the shot that killed
Markess Lancaster.

That evidence is sufficient. Defendant fired shots at a Camaro in which
three African American males were riding.
At the time defendant fired those shots, he was a member of ESR, a gang
known to dislike African Americans, and he was in the company of four other ESR
members. From that evidence, the jury
could reasonably infer that racial bias was a substantial factor motivating
defendant’s action.

In arguing otherwise, defendant cites >Mitchell v. Prunty (9th Cir. 1997) 107
F.3d 1337, 1342 in which the only evidence that connected the defendant to the
charged crime was his membership in a criminal
street gang
. In that context the
Ninth Circuit held, “Membership in a gang cannot serve as proof of intent, or
of the facilitation, advice, aid, promotion, encouragement or instigation
needed to establish aiding and abetting.
To hold otherwise would invite absurd results. Any gang member could be held liable for any
other gang member’s act at any time so long as the act was predicated on the
‘common purpose of “fighting the enemy.”’
[Citation.]” (>Ibid., fn. omitted, overruled on other
grounds by Santamaria v. Horsley (9th
Cir. 1998) 133 F.3d 1242, as modified by
Santamaria v. Horsley
(9th Cir. 1998) 138 F.3d 1280.)

The fact that distinguishes this case from >Mitchell v. Prunty, supra, is that defendant fired the shot that killed the
victim. Therefore, defendant’s guilt is
based on more than mere association with gang members. The evidence that defendant was a member of
ESR, and in the company of other ESR members at the time he committed the
crime, and that ESR is known to dislike African Americans, and the victim in
this case was African American, is sufficient circumstantial evidence that
racial animus was a substantial factor motivating defendant to shoot and kill
Markess Lancaster. Therefore, we must conclude
the trial court correctly denied defendant’s motion for acquittal on the
pertinent allegations.

DISPOSITION

The judgment is
affirmed.

NOT TO BE PUBLISHED
IN OFFICIAL REPORTS



MCKINSTER

J.





We concur:



RAMIREZ

P.
J.

MILLER

J.







id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> [1] The absence of evidence
showing that the occupants of the Camaro fired the first shot is what
distinguishes the facts in this case from those in In re Aurelio R. (1985) 167 Cal.App.3d 52, on which defendant
relies. (Id. at p. 55.)

id=ftn2>

href="#_ftnref2"
name="_ftn2" title=""> [2] According to the
prosecution’s expert witness, although the police department had “a bunch” of
field interview cards with defendant’s name on them, none of those cards
included the gang moniker, Sosyo.








Description A jury found defendant and appellant, Daniel Murillo Salgado (defendant), guilty as charged of one count of first degree murder, one count of discharging a firearm at an occupied motor vehicle, two counts of attempted murder, and one count of discharging a firearm from a motor vehicle. In connection with each count, the jury also found true various sentence enhancements based on defendant’s alleged use of a firearm and criminal street gang involvement. In addition, the jury found true the special circumstance allegation in connection with the murder and attempted murder charges that defendant was motivated to commit the crimes because of the victims’ race. Based on the jury’s guilty verdicts and true findings, the trial court sentenced defendant to serve a total term in state prison of life without the possibility of parole on the first degree murder conviction, and a consecutive term of 117 years to life on the remaining counts, sentence enhancements, and special circumstance findings.
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