P. v. Vasquez
Filed 4/11/13 P. v. Vasquez CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO VASQUEZ et al.,
Defendants and Appellants.
B238989
(Los Angeles
County
Super. Ct.
No. BA361251)
APPEAL from
a judgment of the Superior Court
of
County, Robert J. Perry, Judge. Modified and, as so modified, affirmed.
Sally
Patrone Brajevich, under
appointment by the Court of Appeal, for Defendant and Appellant
Francisco Vasquez.
Lynda A. Romero,
under appointment by the Court
of Appeal, for Defendant and Appellant Ali Fateh.
Linn Davis,
under appointment by the Court
of Appeal, for Defendant and Appellant Anthony Gonzales.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Mary Sanchez and Jonathan M.
Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants
Anthony Gonzales and Francisco Vasquez appeal their convictions for two counts
of attempted premeditated murder. Defendant and appellant Ali Fateh appeals his
convictions for second degree murder, two counts of attempted premeditated
murder, and evading an officer, causing death.
Gonzales and Vasquez were sentenced to 58 years to life in prison; Fateh
was sentenced to 65 years to life.
Appellants contend the evidence was insufficient to support their attempted
murder convictions, and the trial court committed
abstract of judgment contains a clerical error which must be corrected. We correct the abstract as Fateh requests. In all other respects, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
a.
Appellants Vasquez, Gonzales, and Fateh, and victim Gomez,
were all members of the Canoga Park Alabama criminal street gang (CPA),
a predominantly Hispanic gang. The CPA
claimed as its territory an area of Canoga Park roughly bordered by Topanga Canyon, Nordhoff, Van Owen, and
Corbin streets. The gang’s primary
activities included narcotics sales, assaults, hate crimes, robberies,
burglaries, and murder. The CPA gang
hated African-Americans, as evidenced by the gang’s graffiti and their acts of
violence perpetrated against African-Americans.
(i)
The shooting.
At approximately 11:30 p.m. on May 23, 2010, Terrence
Blackman and his brother, Gregory Wilborn, who were both African-American, were
standing in front of Wilborn’s apartment complex located on Canby Avenue in
Reseda, smoking cigarettes and chatting about sports. They were not gang members, were not armed,
and were not selling marijuana. The
apartment was located outside the CPA gang’s territory, and was controlled by
one or more gangs which were CPA rivals.
Two Hispanic men, later identified
as appellants Gonzales and Vasquez,
side. When Gonzales and Vasquez were
five to seven feet from Blackman and Wilborn, Vasquez said “fuck you, niggerâ€
or similar words and pointed a gun at the brothers. Blackman and Wilborn heard a clicking
sound. Blackman realized Vasquez was
attempting to fire the gun, but it had jammed.
Blackman told Wilborn to run.
Gonzales, who also had a gun, ran into the street as if to get a better
angle and fired two shots at the brothers as they fled up a driveway towards
the apartments. One shot hit Wilborn in
the thigh.
Armaondo Ramirez, whose apartment
was located on Canby Avenue, heard the gunshots and looked out his window. He saw a black or dark-colored car, with its
headlights off, double parked and blocking a driveway across the street on
Canby. A Hispanic man jumped into the
front passenger seat. The car then drove
off at high speed. A surveillance tape
obtained from a camera mounted on a nearby building showed the car pulling up
and stopping at the curb at 11:31 p.m., and departing at 11:33 p.m.
(ii)
Alerted to the shooting via a 911 call, Los Angeles Police
Department (L.A.P.D.) officers responded to the scene and searched for the
assailants. Officer James Leone, who was
in an unmarked car, spotted appellants’ black Toyota driving northbound away
from the area of the shooting. Fateh was
driving, Vasquez was seated in the front passenger seat, Gomez was in the rear
passenger side seat, and Gonzales was in the rear driver’s side seat. Leone followed the car, which sped up to
between 55 and 60 miles per hour. Leone
called for backup. Officer Edward
Maranian and his partner pulled up behind the Toyota at a red light. When the light turned green, Fateh
accelerated to 50 miles per hour and drove westbound on Roscoe, with the
officers following, their police cruiser’s lights and siren on. Fateh led the officers on a high-speed chase,
during which he drove at speeds of at least 50 miles per hour, drove through a
“dip†in the road fast enough to send up sparks, ran at least five stop signs
and one red light without slowing, cut through an alley and then a Food 4 Less
parking lot, narrowly missing a pedestrian, and made a U-turn on a red light in
the middle of an intersection. When the
Toyota reentered Saticoy after exiting the grocery parking lot, Fateh
accelerated to speeds of 80 miles per hour.
The car was “straddling, swaying from side to side,
zigzagging, . . . displaying clearly evasive maneuvers trying to
get away†from the pursuing officers. An
L.A.P.D. helicopter began following the Toyota from the air, and Officer
Maranian terminated his pursuit because it had become too dangerous. The Toyota continued at speeds of up to 80
miles per hour down Saticoy.
At the intersection of Saticoy and
Mason streets, the Toyota––which still had its headlights off––ran another red light. Two other vehicles were approaching the
intersection, one from the north and one from the south. The Toyota
drove between the two vehicles, narrowly missing them as all three
vehicles crossed the intersection. The
Toyota’s right rear taillight lightly tapped the right front bumper of one of
the other vehicles, a truck being driven by Melissa Messer. The Toyota careened down Saticoy, “completely
out of control,†and slammed into several parked cars. The impact crushed the back half of the Toyota.
Fateh exited the Toyota, talking on
a cellular telephone. Vasquez attempted
to start the car and reached under the front seat before he was pulled from the
mangled wreckage by officers. Gonzales,
who was in the back seat unconscious and badly injured, was transported to a
hospital. Gomez, who had suffered major
trauma, was dead.
(iii)
An officer found two .32-caliber shell casings on Canby
Avenue, near where the shooting occurred.
A .32-caliber semiautomatic Beretta handgun was found in the Toyota, in
a pool of blood underneath Gomez’s body, which was slumped over onto the left
rear passenger seat. Forensic testing
determined that the bullet casings found at the scene were fired from the gun
found in the Toyota. Gunshot residue
tests were performed on Vasquez, Gonzales, and Gomez’s body; no gunshot residue
was detected. A second gun was never
found.
Wilborn and Blackman consistently
stated that the assailant who fired the shots wore a gray “hoodieâ€
sweatshirt. When pulled from the wrecked
Toyota, Gonzales was wearing a gray hooded sweatshirt. At trial, both Blackman and Wilborn testified
that the first assailant, who made the racial slur and whose gun jammed, wore a
dark or blue sports jersey with a white T-shirt underneath. When apprehended at the crash site, Vasquez
was wearing a blue New Jersey Nets jersey with a white T-shirt underneath. In September 2010, Blackman and Wilborn were
separately shown a photographic “clothing lineup†of the attire worn by the
four men in the Toyota. Both identified
Gonzales’s gray hooded sweatshirt, and Vasquez’s blue jersey and white T-shirt,
as the clothing, or very similar to the clothing, worn by the assailants. Neither recognized the clothing worn by Fateh
or Gomez. Although the record is not
entirely clear, it appears that Blackman may have also identified a photograph
of Gonzales as the shooter in a pretrial photographic lineup. Prior to trial Blackman gave police a variety
of descriptions of the clothing worn by the first assailant. His description of the first assailant’s
height and weight was inconsistent with Vasquez’s actual height and weight.
(iv)
Gang evidence.
In addition to the evidence regarding criminal street gangs
discussed ante, an expert testified
in response to a hypothetical based on the facts of the case that in his
opinion, the shooting was committed for the benefit of, at the direction of, or
in association with, a criminal street gang.
The People presented additional evidence relevant to proof of the street
gang enhancements.
name="_ftnref2" title="">[2]
b.
Gonzales testified in his own behalf. His mother was African-American, and his
father was Hispanic. He denied being a
CPA member, and did not use the moniker “Ickie.†On the night of the shooting, Gomez called
Gonzales and asked if he wanted to purchase marijuana with him. Gonzales agreed and the two met at a car wash
on Sherman Way, where Gomez explained that Fateh would pick them up. En route to the transaction site, Gomez
spotted his friend, Vasquez, who appeared to be intoxicated and ill. Fateh agreed to give Vasquez a ride home and
the trio picked Vasquez up. Gonzales had
not previously met Fateh or Vasquez.
When the group arrived on Canby, Gomez exited the car and asked Gonzales
to accompany him. Gonzales
complied. Gomez told Gonzales to wait 50
to 60 feet from the meeting point, because drug dealers “don’t like doing
business with people that they don’t know.â€
Gomez talked to two men. Gonzales
had his back toward them but overheard “words being exchanged.†Someone said, “go home you fuckin’ wetbackâ€
and someone else said “[f]uck you, niggers.â€
Gonzales heard two to three shots and saw Gomez running. Frightened, Gonzales ran to the car as
well. He was “shocked†and “just wanted
to get out of there.†When they heard
sirens, Fateh stated that he was going to pull over, but Gomez said, “No,
no. Go, go. Just go.â€
Vasquez was asleep during the shooting and the chase. Gonzales denied he had ever possessed, owned,
or fired a gun, and had not known Gomez had a gun.
c.
People’s rebuttal.
In rebuttal, the People presented evidence that Gonzales had
admitted his CPA gang membership to a detective and to an L.A.P.D. officer in
November 2007, and had scratched his moniker on a Styrofoam cup during a police
interview. A search of a residence where
Gonzales was present, conducted in September 2008, turned up paperwork
containing Gonzales’s moniker, references to the CPA gang, and a notation
indicating a rivalry with the Original Valley Gangsters, an African-American
gang.
2.
Procedure.
Trial was by jury.
Fateh was convicted of the second degree murder of Gomez (Pen. Code, §
187, subd. (a))
name="_ftnref4" title="">[4] and evading an officer, causing Gomez’s death (Veh. Code,
§ 2800.3, subd. (b)). All three
appellants were convicted of the willful, deliberate, and premeditated
attempted murders of Blackman and Wilborn (§§ 664, 187,
subd. (a)). The jury further found
the attempted murders and the evading an officer crimes were committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); in the
commission of the attempted murders, a principal personally and intentionally
discharged a firearm, proximately causing great bodily injury to Wilborn
(§ 12022.53, subds. (c), (d), (e)(1)); and, as to Gonzales and Vasquez,
the attempted murders were hate crimes (§ 422.75, subd. (b)). The jury found the hate crime allegations not
true as to appellant Fateh. The trial
court sentenced Fateh to a term of 65 years to life in prison. It sentenced Vasquez and Gonzales to terms of
58 years to life in prison. As to all
appellants, the court imposed restitution fines, suspended parole restitution
fines, court security fees, and criminal conviction assessments, and ordered
appellants to pay victim restitution.
Fateh, Gonzales, and Vasquez appeal.
DISCUSSION
1.
Sufficiency of the evidence.
Appellants challenge the sufficiency of the evidence to prove
their convictions for attempted murder on several different grounds. None have merit.
a.
When determining whether the
evidence was sufficient to sustain a criminal conviction, “we review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence––that is, evidence that is reasonable,
credible and of solid value––from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citations.]†(
43, 66; People v. Houston (2012) 54
Cal.4th 1186, 1215; People v. Elliott (2012)
53 Cal.4th 535, 585.) We presume in
support of the judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. (
919.) Reversal is not warranted unless
it appears “ ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’
[Citation.]†(
331; People v. Zamudio (2008) 43
Cal.4th 327, 357.) The same standard of
review applies to cases in which the prosecution relies primarily on
circumstantial evidence. (
b.
to kill.
Appellants argue that there was insufficient evidence they
had the intent to kill, and therefore their convictions for the attempted
murders of Blackman and Wilborn must be reversed. We disagree.
“ ‘Attempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.
[Citation.] Attempted murder
requires express malice, that is, the assailant either desires the victim’s
death, or knows to a substantial certainty that the victim’s death will
occur.’ [Citation.]†(People
v. Houston, supra, 54 Cal.4th at p. 1217; People v. Smith (2005) 37 Cal.4th 733, 739.) Intent to kill may be inferred from the
defendant’s acts and the circumstances of the crime. (Smith,
victim at close range in a manner that could have inflicted a mortal wound had
the shot been on target is sufficient to support an inference of an intent to
kill.†(Houston, at p. 1218;
Smith, at p. 741.) The
circumstance that the bullet misses its mark or fails to prove lethal is not
dispositive. (Smith, at
pp. 741-742.)
Viewing the
evidence in the light most favorable to the verdict (People v. Gonzalez (2012) 54 Cal.4th 643, 653), the evidence was
sufficient. When Gonzales and Vasquez
were between five to seven feet away from Blackman and Wilborn, Vasquez
attempted to fire shots at them, but his gun jammed. Gonzales, who had been side-by-side with
Vasquez, ran into the street, apparently to obtain a better angle, and fired
two shots as Blackman and Wilborn ran down a driveway toward Wilborn’s
apartment building. One of those shots
hit Wilborn in the thigh. Blackman heard
bullets “wheezing [sic] past [his]
body.†From this evidence alone, the
jury could readily have inferred that appellants intended to kill the
victims. (People v. Smith, supra, 37 Cal. 4th at pp. 741-742;
p. 1217.)
Gonzales argues that the
evidence was insufficient to prove the shots were fired at close range. He points out that the victims were halfway
down the apartment driveway when the shots were fired, and there was no
evidence regarding the length of the driveway.
He contrasts this showing with that in People v. Smith, supra, 37 Cal.4th at pages 742 to 743, in which
the defendant fired a shot at a mother and her baby from approximately a car
length away.
These
arguments are not persuasive. The jury
could have concluded the shooting was conducted at close range. When Vasquez first attempted to shoot, he was
within seven feet of the victims, a distance which indisputably qualifies as
“close range.†The jury could readily
have inferred Vasquez intended to shoot to kill. When Vasquez’s gun jammed, Gonzales
immediately got into a position in the street and fired two shots directly at
the victims. From this the jury could
have deduced that the attack on the men was coordinated, and Gonzales shared
Vasquez’s homicidal intent.
Moreover,
while the precise distance was not measured at trial, the victims were
certainly not far from Gonzales when the shots were fired. Contrary to Gonzales’s argument that no evidence
was presented regarding the driveway’s length, in fact a photograph showing the
driveway was admitted into evidence.
Jurors could no doubt have determined the relevant distances from that
exhibit. More importantly, we do not
read Smith as demarcating some
arbitrary point beyond which a shooting cannot be considered to have been at
close range. Smith holds that the act of
firing a weapon in a manner that could have inflicted a mortal wound, had the
bullet been on target, suffices to establish intent to kill. (People
v. Smith, supra, 37 Cal.4th at pp. 741-742.) Wilborn was actually hit in the thigh;
certainly if the bullet had been on target, it would have inflicted a mortal
wound. That appellants abandoned their
efforts after firing two shots, and that the victims escaped death due to
Gonzales’s “poor marksmanship,†did not compel the jury to conclude they lacked
the intent to kill.
title="">[5]
(People v. Houston, supra, 54
Cal.4th at p. 1218; Smith,
43, is instructive. There, the victim
was outside his residence, escorting guests, when the defendant fired shots
from across the street. The victim heard
the shots “ ‘whistling’ past him†and fled down the street. Ramos contended there was insufficient evidence
of his intent to kill “because the evidence established that he fired gunshots
from a distance during [the] nighttime.â€
(Id. at p. 47.) Ramos rejected
this contention, explaining, “Although [the defendant] may have been a distance
away, the gunshots ‘whistled’ past [the victim] and could have inflicted a
mortal wound had [the defendant’s] marksmanship been better. The trier of fact reasonably drew the
inference of intent to kill from the evidence.â€
(Id. at p. 48.) The same is true here.
c.
attempted murders were premeditated and deliberate.
Appellants next argue the evidence was insufficient to
establish the attempted murders were premeditated and deliberate.
than a showing of intent to kill. (
1072, 1083-1084.) An intentional
killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection, rather than as the product of an unconsidered
or rash impulse. (People v. Burney (2009) 47 Cal.4th 203, 235; People v. Jurado (2006) 38 Cal.4th 72, 118.) A reviewing court normally considers three
types of evidence when determining whether a finding of premeditation and
deliberation is adequately supported:
planning activity by the defendants; motive; and the manner of
killing. (People v. Gonzalez, supra, 54 Cal.4th at pp. 663-664;
401; People v. Anderson (1968) 70
Cal.2d 15, 26-27.) These so-called “
means to establish premeditation and deliberation, and need not be present in
any particular combination, or at all, to establish the evidence was
sufficient. (Gonzalez, at p. 663;
Burney, at p. 235;
172; People v. Lenart (2004) 32
Cal.4th 1107, 1127.)
The
evidence here satisfied all three Anderson
factors. First, the jury could have
inferred there was evidence of planning.
Gomez, Gonzales, Vasquez, and Fateh travelled, as a group, to rival gang
territory. They brought at least one
loaded weapon to the site, demonstrating their preconceived plan to use deadly
force. (See People v. Gonzalez, supra, 54 Cal.4th at p. 664 [fact defendant
brought a loaded rifle to ambush site supported an inference of planning];
[fact defendant brought a loaded handgun indicated he had considered the
possibility of a violent encounter].)
Vasquez and Gonzales then calmly shot at the victims for no apparent
reason, and fled in the waiting car.
(See Lee, at p. 637 [calm and exacting manner of killing supported
conclusion it was the result of preexisting thought, not an unconsidered rash
impulse].) These coordinated actions,
involving the use of weapons brought to the scene and an unprovoked attack on
strangers, strongly suggested appellants were carrying out a prearranged
plan.
Second, the
evidence supported a finding that appellants had a motive to kill. There was evidence all three appellants, as
well as Gomez, were CPA gang members.
Their gang harbored animosity toward African-Americans, and one of the
gang’s primary activities was committing hate crimes. Both victims were African-American and appear
to have been chosen at random as targets because of their race. Just before attempting to shoot, Vasquez
hurled a racial epithet at the victims.
Based on the gang expert’s testimony, commission of the instant crimes
would have bolstered the CPA gang’s image, as well as built “respect,†as that
term is understood in the gang culture, for appellants.
Finally,
the manner of killing suggested a preplanned attack. Vasquez and Gonzales attempted to shoot the
victims from relatively close range, without provocation. When Vasquez’s gun jammed, Gonzales continued
the attack by firing shots as the men ran away.
This method of attempted killing is analogous to an execution-style
murder, and suggested a preconceived design to kill. (See generally People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295
[close-range shooting without any provocation or evidence of a struggle
supported an inference of premeditation and deliberation]; People v. Tafoya, supra, 42 Cal.4th at p. 172; People v. Lenart, supra, 32 Cal.4th at p. 1127.)
Gonzales argues
that the gang expert’s testimony did not “reasonably inspire[ ] confidence,†in
that it was purportedly “rife†with “inconsistencies, surmise and
conjecture.†He urges that the evidence
the CPA gang committed hate crimes was outdated; the gang expert had been
assigned to the gang for only 11 months; in contrast to all other known hate
crimes committed by the CPA, the shooting was committed outside CPA territory;
and Gonzales, who was half African-American and half Hispanic, would not have
been allowed to join the CPA gang.
Further, he argues that Wilborn was shot in the thigh, not a vital area,
but appellants did not pursue him and fire additional shots; and appellants
might have brought the gun as protection if they were involved in a drug
deal. Gonzales urges that the defense
theory––that the shooting was the result of a drug deal gone bad––was more
plausible than the People’s evidence. He
points out that Blackman had suffered a 2003 conviction for selling marijuana,
and expresses skepticism that the victims were simply talking in front of the
apartment, as opposed to selling drugs.
As is
readily apparent, Gonzales’s arguments are nothing more than a request that
this court reweigh the evidence.
“ ‘[I]t is not a proper appellate function to reassess the
credibility of the witnesses.’
[Citation.]†(
41; People v. Cortes (1999) 71
Cal.App.4th 62, 81 [where an appellant “merely reargues the evidence in a way
more appropriate for trial than for appeal,†we are bound by the trier of
fact’s determination].) We resolve
neither credibility issues nor evidentiary conflicts. (People
v. Maury (2003) 30 Cal.4th 342, 403; People
v. Mejia (2007) 155 Cal.App.4th 86, 98.)
The fact the evidence might have been reconciled with a contrary finding
does not warrant a reversal. (
1145, 1170; People v. Martinez (2008)
158 Cal.App.4th 1324, 1331.)
d.
The evidence was sufficient to
establish that Vasquez was one of the two gunmen.
Next, Vasquez urges that the evidence was insufficient to
establish that he––rather than the decedent, Gomez––was one of the two gunmen. He is incorrect.
Viewed in the light most favorable
to the judgment, the evidence showed the following. When the Toyota crashed, Fateh, Gonzales,
Vasquez, and Gomez were inside. A gun
found in the car was determined to be the gun used in the shooting. Thus, there was ample evidence to prove two
of the four men in the car were the assailants.
At the crash scene, Gonzales was wearing a gray hooded sweatshirt;
Vasquez was wearing a blue New Jersey Nets jersey, with a white T-shirt
underneath; Fateh was wearing brown shorts, a blue shirt, and a white
undershirt; and Gomez was wearing a dark blue shirt and a cap. When shown a photographic lineup of the
clothing worn by all four men, both Blackman and Wilborn identified Gonzales’s
gray hooded sweatshirt as the attire worn by the shooter, and Vasquez’s blue
New Jersey Nets jersey and white T-shirt as the clothing worn by the assailant
who uttered the racial slur and attempted to shoot with the jammed gun. Neither Wilborn nor Blackman recognized the
clothing worn by Fateh or Gomez. At
trial, both Blackman and Wilborn testified that the first assailant wore a
black or blue jersey with a white T-shirt underneath, and the shooter wore a
gray hooded sweatshirt. Blackman was
sure the first assailant’s shirt was a jersey, because he had a collection of
jerseys and knew “what a sports jersey look[s] like.†From this evidence, the jury could reasonably
have concluded Vasquez was the first assailant who uttered the racial slur, and
Gonzales was the assailant who fired shots.
To be sure, the evidence regarding
the description of the first assailant was not entirely consistent. On the date of the shooting, Blackman told an
L.A.P.D. officer that the shooter had worn a white T-shirt with a baseball cap
or bandanna, while the other assailant wore a gray hooded sweatshirt. On June 2, 2010, Blackman told FBI Special
Agent Efren Delgado there had been one shooter, who had worn a baggy white
T-shirt, black pants, and a bandanna or beanie.
On August 10, 2010, Blackman told Agent Delgado he was unsure whether
there had been one or two guns. He
described the gunman’s attire as a white sports jersey with black or white
lettering, worn beneath a black open sweatshirt. At trial, Blackman testified that the
assailant who made the racial slur was approximately 5 feet 4 inches
to 5 feet 6 inches tall, and was short and stocky. Vasquez was six feet tall and weighed 225
pounds. Gomez was 5 feet
6 inches tall, and was somewhat overweight at 178 pounds. Ramirez told police the man he saw enter the
car on Canby was “skinny,†approximately 5 feet 7 inches tall,
wearing a dark or black “hoodie†sweatshirt.
Vasquez additionally points out that
the area where the shooting occurred was not well lit; the incident happened
fast; Wilborn had poor vision, and was not wearing his glasses; Wilborn and
Blackman never identified his face; the clothing identified at the scene “could
have been switchedâ€; gunshot residue was not detected on Vasquez, Gonzales, or
Gomez; Vasquez’s fingerprints were not found on the gun; Gonzales testified
that he and Gomez, not Vasquez, were the ones who exited the car; Vasquez’s
blood alcohol level was “above high normal,†supporting Gonzales’s testimony
that Vasquez was asleep during the incident; Ramirez’s description of the man
who entered the car matched Gomez, not Vasquez; the gun was found under Gomez’s
body; and both Wilborn and Blackman were convicted felons, undercutting their
credibility. He urges that “in light of
the significant contradictions in the evidence presented at trial,†his
convictions for attempted murder must be reversed.
Many of the points made by Vasquez
do not involve genuine evidentiary conflicts, or do not support his conclusion
that Gomez was one of the assailants.
For example, the gun was apparently not tested for fingerprints; it is
unlikely fingerprints could have been obtained from it, given that it was found
in a pool of blood. The jury could have
concluded the purported discrepancies regarding whether there were one or two
shooters were explainable as a matter of semantics, given that there were two
men with guns but only one successfully fired shots. Because Vasquez’s gun jammed, one would not
necessarily expect to find gunshot residue on his hands. The functional gun was found where Gonzales––the shooter—had been seated,
not in the seat that had been occupied by Gomez.
brightly lit, was nonetheless illuminated by a streetlight. There was no evidence the men in the Toyota
changed clothes during the car chase, and no reason to suspect that they would
have done so. Ramirez’s description of
the man at the scene did not clearly match Gomez; Gomez was not “skinny,†as Ramirez described, but was
overweight. Moreover, Gomez was wearing
a blue shirt when extricated from the crashed car, not a black hooded sweatshirt.
Given the evidence as a whole, the
discrepancies in the descriptions of the first assailant did not make the
clothing lineup identifications impossible to believe or inherently
improbable. “ ‘Apropos the question
of identity, to entitle a reviewing court to set aside a jury’s finding of
guilt the evidence of identity must be so weak as to constitute practically no
evidence at all.’ [Citations.]†(People
v. Mohamed (2011) 201 Cal.App.4th 515, 521.) That was not the case here. Blackman may have been confused at times
about exactly what the first assailant was wearing, but he repeatedly stated
the first assailant wore a white T-shirt and/or a jersey, both of which matched
Vasquez’s clothing. Discrepancies or
omissions in descriptions of a defendant do not necessitate the jury’s rejection
of an identification. (
neither victim identified Vasquez’s face does “not preclude the existence of
sufficient support for the jury’s verdict.
‘[I]t is not necessary that any of the witnesses called to identify the
accused should have seen his face. . . . Identification based on other peculiarities
may be reasonably sure. Consequently,
the identity of a defendant may be established†by a variety of facts,
including clothing. (
In sum, “ ‘[t]he
strength or weakness of the identification [and] the incompatibility of and
discrepancies in the testimony†go to the weight of the evidence and the
credibility of the witnesses, and are questions for the jury. (People
v. Mohamed, supra, 201 Cal.App.4th at p. 522.) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment,â€
for it is the exclusive province of the jury to determine the truth or falsity
of the facts upon which a determination depends. (People
v. Maury, supra, 30 Cal.4th at p.
403; People v. Elliott, supra, 53
Cal.4th at p. 585.)
not assist him. The issue in
evidence to support an identification; instead it was whether counsel was ineffective
for failing to challenge an in-court identification that was tainted by an
illegal lineup. In the context of
discussing whether counsel’s deficient performance was prejudicial, a divided
court considered various weaknesses in the witness’s identification
significant. (Id. at pp. 1241-1243.)
evidence was insufficient here.
e. The
evidence was sufficient to establish Fateh aided and abetted the attempted
murders.
Fateh urges the evidence was insufficient to establish he
acted as an aider and abettor in the attempted murders. A person who aids and abets the
commission of a crime is a principal in the crime. (People
v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; People v. Mejia (2012) 211 Cal.App.4th 586, 605-606; § 31.) “[T]o be guilty of attempted murder as an
aider and abettor, a person must give aid or encouragement with knowledge of
the direct perpetrator’s intent to kill and with the purpose of facilitating
the direct perpetrator’s accomplishment of the intended killing—which means
that the person guilty of attempted murder as an aider and abettor must intend
to kill.â€
v. Lee (2003) 31 Cal.4th 613, 624; People
v. Gonzalez, supra, 54 Cal.4th at p. 654, fn. 8; Mejia, at p. 606.)
Among the
factors that may be taken into account when determining whether a defendant was
an aider and abettor are presence at the crime scene, companionship, and
conduct before and after the offense, including flight. (In re
Juan G. (2003) 112 Cal.App.4th 1, 5; People
v. Medina, supra, 46 Cal.4th at p. 924; People
v. Battle (2011) 198 Cal.App.4th 50, 84-85.) Mere presence at the scene of a crime,
knowledge of the perpetrator’s criminal purpose, or the failure to prevent the
crime do not amount to aiding and abetting, although these factors may be taken
into account in determining criminal responsibility. (People
v. Garcia (2008) 168 Cal.App.4th 261, 272-273; People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) “ ‘Whether defendant aided and abetted
the crime is a question of fact, and on appeal all conflicts in the evidence
and reasonable inferences must be resolved in favor of the judgment.’ [Citation.]â€
(People v. Campbell (1994) 25
Cal.App.4th 402, 409; In re Juan G.,
at p. 5.)
Fateh was the getaway car driver; he
did not exit the Toyota during the shooting.
There is no dispute his act of driving the getaway car to and from the
shooting scene constituted sufficient evidence of an act that aided and
promoted the crime. There was
also sufficient circumstantial evidence from which the jury reasonably could
have found Fateh knew
the assailants were armed and intended to commit murder, and that he shared
their intent. (See
355 [mental state and intent are rarely susceptible of direct proof and must
therefore be proven circumstantially].) The gang expert opined that
Fateh and the other three occupants of the Toyota were all members of the CPA
gang. The expert’s opinion was based in
part on the facts Gomez and Vasquez sported CPA gang tattoos; Gomez and
Gonzales had admitted their gang membership to officers; an officer had
observed Gonzales throwing gang signs; and officers had observed Fateh and
Vasquez in the company of other gang members.
The gang expert also testified that committing shootings would have
enhanced the gang’s and the perpetrators’ reputations.
Fateh drove the Toyota to an area
within the territory of a rival gang.
Fateh double-parked the Toyota at a spot where the two victims were
loitering on the street, and turned off the vehicle’s lights. Vasquez and Gonzales exited, shot at the
victims––who
were complete strangers to all four men in the Toyota––and immediately reentered
the car. The gunshots were loud enough
that eyewitness Ramirez, who was inside an apartment across the street, heard
them; therefore the jury could infer Fateh heard them as well. Fateh sped off, leading police on a
high-speed chase during which he drove with extreme recklessness. The most reasonable interpretation of this
evidence was that Fateh knew exactly what was to transpire and was positioned
to allow his fellow gang members to commit the shooting and then make a quick
getaway. The jury was not obliged to
accept the defense theory that the shooting was the result of a drug deal gone
sour. The victims testified they were
not selling drugs, and the jury was entitled to credit this testimony. Moreover, the jury could reasonably have
concluded the facts were inconsistent with such a scenario: the car was only parked for two minutes, not
much time for a drug deal to commence, turn contentious, and end in a shooting.
Fateh points out that, as to him,
the jury found not true the allegation that the attempted murders were hate
crimes. As to codefendants Vasquez and
Gonzales, the jury found the hate-crime allegations true. From this circumstance, Fateh reasons that
the jury must have concluded he lacked knowledge of his passengers’ intent,
given that the prosecution theory was that the motive for shooting the victims
was racial animosity. But the evidence
showed only Gonzales and Vasquez confronted the victims, and only Vasquez
uttered a racial slur. While we cannot
be sure of the jury’s reasoning, it could have concluded Fateh knew of and
intended to aid the shooting of persons who might be rival gang members, but
declined to find true the hate-crime allegation given that Fateh did not
personally utter a racial epithet and was in the car when Vasquez did so. The jury’s finding on the hate-crime allegation
does not compel a finding the evidence of aiding and abetting was insufficient.
2.
Instructional error.
Fateh argues that the trial court committed
causation; and second, by instructing with a version of CALCRIM No. 400 which
incorrectly stated that an aider and abettor is “equally guilty†of crimes
committed by a principal.
a.
The trial court did not err by
failing to instruct on causation.
(i)
The trial court instructed the jury with CALCRIM No. 520,
regarding second degree murder. That
instruction stated in pertinent part:
“Defendant Fateh is charged in count 1 with second degree murder in
violation of Penal Code section 187 on an implied malice theory. [¶] To
prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant committed an act that caused the death of Joel Gomez; [¶] AND
[¶] 2. When the defendant
acted, he had a state of mind called malice aforethought. [¶]
There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to
establish the state of mind required for murder. [¶]
The defendant acted with express malice if he unlawfully intended to
kill. [¶] The defendant acted with implied malice
if: [¶]
1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶]
3. At the time he acted, he knew his act was dangerous to human life; [¶]
AND [¶] 4. He deliberately acted
with conscious disregard for human life.â€
(Italics added.)
The trial court omitted the
following portion of CALCRIM No. 520:
“An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the
act. A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all of the circumstances established by the
evidence. [¶] There may be more than one cause of
death. An act causes death only if it is
a substantial factor in causing the death.
A substantial factor is more
than a trivial or remote factor. However,
it does not need to be the only factor that causes the death.†(CALCRIM No. 520, brackets omitted.) Defense counsel did not request that the
omitted portions of CALCRIM No. 520 be provided to the jury, and did not object
to their omission. The trial court did
not give, and the defense did not request, CALCRIM No. 240, which is similar to
the omitted portion of CALCRIM No 520.
was error.
(ii) Discussion.
A trial court must instruct the
jury, sua sponte, on the general
principles of law that are closely and openly connected to the facts and that
are necessary for the jury’s understanding of the case. (People
v. Moye (2009) 47 Cal.4th 537, 548; People
v. Abilez (2007) 41 Cal.4th 472, 517; People
v. McCloud (2012) 211 Cal.App.4th 788, 796.) A court is not obliged to instruct on
theories that lack substantial evidentiary support. (People
v. Burney, supra, 47 Cal.4th at p. 246; People
v. Johnson (2009) 180 Cal.App.4th 702,
707.) Substantial evidence is evidence
that a reasonable jury could find persuasive.
(People v. Benavides (2005) 35
Cal.4th 69, 102; People v. Ross
(2007) 155 Cal.App.4th 1033, 1049-1050.)
Thus, a court has a sua sponte duty to instruct on proximate cause if
causation is at issue. (
333-336.)
Proximate
cause in a criminal case is defined as “ ‘a cause which, in natural and
continuous sequence, produces the death, and without which the death would not
have occurred.’ [Citations.]†(People
v. Armitage (1987) 194 Cal.App.3d 405, 420.) Proximate cause is “ ‘clearly
established where the act is directly connected with the resulting injury, with
no intervening force operating.’
[Citation.]†(
at p. 420; People v. Schmies (1996)
44 Cal.App.4th 38, 48-49.) An “ ‘ “independent†intervening
cause’ †absolves a defendant of liability only when it is
“ ‘ “unforeseeable . . . an extraordinary and abnormal
occurrence, which rises to the level of an exonerating, superseding
cause.†[Citation.] On the other hand, a “dependent†intervening
cause will not relieve the defendant of criminal liability. “A defendant may be criminally liable for a
result directly caused by his act even if there is another contributing
cause. If an intervening cause is a
normal and reasonably foreseeable result of defendant’s original act the
intervening act is ‘dependent’ and not a superseding cause, and will not
relieve defendant of liability.
[Citation.] ‘[] The consequence
need not have been a strong probability; a possible consequence which might
reasonably have been contemplated is enough.
[] The precise consequence need not have been foreseen; it is enough
that the defendant should have foreseen the possibility of some harm of the
kind which might result from his act.’
[Citation.]â€
[Citation.]’ †(
860, 871; People v. Mejia, supra, 211
Cal.App.4th at p. 609; People v. Schmies,
supra, 44 Cal.App.4th at p. 49.)
Applying
these principles here, it is readily apparent no further instruction was
required. Preliminarily, we agree with
the People that Fateh has forfeited this contention because he failed to
request further instruction or object below.
In general, a party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) Although we may review any instruction given,
even in the absence of an objection, “if the substantial rights of the
defendant were affected thereby†(§ 1259; People
v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7), as we explain
Fateh’s substantial rights. Therefore
the claim has been forfeited.
CALCRIM No. 520 informed the
jury that to prove second degree murder, the People were required to establish
Fateh intentionally committed an act that caused Gomez’s death. Thus, the issue of causation was squarely
before the jury. The causation
principles at play when multiple acts might have contributed to the death were
not relevant. (See People v. McCloud, supra, 211 Cal.App.4th at p. 796 [trial
court has duty to refrain from instruction on principles of law that are
irrelevant and might confuse the jury].)
There was no evidence of an independent intervening cause for the crash
and Gomez’s death. The evidence was
clear that the only cause of Gomez’s death was Fateh’s exceptionally reckless
driving.
Fateh urges that the jury might have
considered the fact his car collided with Messer’s truck in the intersection
just before the crash to be an intervening cause. He argues:
“the evidence was undisputed that Melissa Messer hit appellant’s vehicle
sending it out of control into some parked vehicles. . . . Thus, appellant was entitled to have the jury
determine whether Messer’s hit was an intervening cause of the accident.â€
Fateh’s argument is not only
untenable, but mischaracterizes the record.
The implication that Messer was responsible for hitting Fateh’s vehicle
is misleading: Messer had the green
light and was lawfully proceeding through the intersection when Fateh ran the
red light, with his vehicle’s lights off, at a speed approaching 80 miles per
hour. Thus, any impact with Messer’s
vehicle in the intersection was Fateh’s fault and could not have amounted to an
independent intervening cause. (See
at p. 871.) Moreover, an intervening
cause absolves a defendant of liability only when it is an unforeseeable,
extraordinary, abnormal occurrence. The
undisputed evidence showed Fateh led a police vehicle on a high speed chase,
with his car’s lights off, at night, at speeds up to 80 miles per hour, running
numerous stop signs and traffic lights in the process. The possibility he would collide with another
vehicle in an intersection and lose control of his Toyota was neither
unforeseeable nor unlikely. To the
contrary, the only surprising thing about the incident was that Fateh did not
hit additional vehicles or pedestrians.
Fateh’s contention fails as a
factual matter as well. Messer testified
that Fateh’s Toyota barely tapped her right front bumper. The contact was “[s]uper soft . . .
we barely touched each other. Just a
slight tap is all I felt. No change in
my motion at all.†According to the
helicopter pilot who was chasing Fateh’s vehicle, when Fateh entered the
intersection, Messer’s vehicle was travelling northbound on Mason and another
vehicle was travelling southbound. As
Fateh entered the intersection, against the red light, he attempted to make a
corrective move. To the helicopter
pilot, it did not appear that Fateh hit the vehicles in the intersection, but
instead “thread[ed] the needle, two vehicles traveling toward each other and he
went right between them in a flash and lost control as he continued eastbound
through the intersection of Mason . . . .†The only reasonable interpretation of this
evidence was that Fateh’s own reckless driving, not the “super soft†tap on
Messer’s bumper, was the cause of the accident and of Gomez’s death. As there was no evidence of multiple causes
for the crash, the trial court properly omitted additional instruction on
causation.
For the same reasons, even if the
trial court had committed instructional error––a conclusion we do not adopt––it was harmless under any
standard because the additional instructions at issue “could not have
aided defendant.†(People v. Bland, supra, 28 Cal.4th at p. 318.) No reasonable juror could have concluded the
contact with Messer’s vehicle in the intersection was an independent
intervening cause, for the reasons we have set forth. (See People
v. Cervantes, supra, 26 Cal.4th at pp. 866, 871.)
b.
Instruction with former CALCRIM
No. 400.
Without objection, the trial court instructed with former
CALCRIM No. 400, the instruction in effect at the time, as follows: “A person may be guilty of a crime in two
ways. One, he may have directly
committed the crime. I will call that
person the perpetrator. Two, he may have
aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime
whether he committed it personally or aided and abetted the perpetrator who
committed it.â€
name="_ftnref10" title="">[10] During argument the
prosecutor stated: “[A] person is
equally guilty of the crime whether he committed it personally or aided and
abetted the perpetrator who committed it.
In for a penny, in for a pound.
If you’re all in, you’re all in.
That’s how it works basically.â€
Fateh contends instructing the jury with the “equally
guilty†language was error. We agree, but conclude the error was not
prejudicial.
In People v. McCoy, supra, 25 Cal.4th 1111, the California Supreme
Court held that an aider and abettor may be found guilty of greater
homicide-related offenses than those committed by the actual perpetrator. (Id. at
p. 1122.) The court explained that an
aider and abettor’s guilt is “based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own mental
state†(id. at p. 1117), which could
under some circumstances be more culpable than the actual perpetrator’s. (Id. at
p. 1120.)
In People v. Samaniego, supra, 172 Cal.App.4th 1148, the jury was
given the same version of CALCRIM No. 400 challenged here. (Id. at
pp. 1162-1163.) The court concluded the
instruction was erroneous, because it did not inform the jury that an
aider and abettor could be guilty of a lesser crime than the perpetrator. (Id. at
pp. 1164-1165.) Samaniego explained: “Though
McCoy concluded that an aider and
abettor could be guilty of a greater offense than the direct perpetrator, its
reasoning leads inexorably to the further conclusion that an aider and
abettor’s guilt may also be less than the perpetrator’s, if the aider and
abettor has a less culpable mental state.
[Citation.] Consequently, CALCRIM
No. 400’s direction that ‘[a] person is equally
guilty of the crime [of which the perpetrator is guilty] whether he or she
committed it personally or aided and abetted the perpetrator who committed
it’ . . . , while generally correct in all but the most
exceptional circumstances, is misleading here and should have been
modified.†(Samaniego, at
pp. 1164–1165.) Samaniego nonetheless concluded use of the instruction was harmless. (Id. at
pp. 1165-1166.)
In
504, we concluded use of an instruction containing similar “equally guiltyâ€
language was prejudicial error. In
sister, were convicted of second degree murder after the brother stabbed a man
to death during an altercation. The
People’s theory was that the sister aided and abetted the crime by handing her
brother the knife during the fight. The
brother testified that his sister did not hand him the knife; instead he
obtained it from the victim during the fight.
(Id. at p. 510.) It was undisputed that at the beginning of
the altercation, the sister attempted to stop the fight; according to the
brother’s testimony, she continued urging the men to stop throughout the
incident. (Id. at pp. 509, 519.) The
evidence included a surveillance video which showed that the sister might, or
might not, have handed an object that might, or might not, have been a knife,
to the brother. (Id. at p. 519.)
The trial
court instructed the jury with CALJIC No. 3.00, as follows: “ ‘Persons who are involved in
committing or attempting to commit a crime are referred to as principals in
that crime. Each principal, regardless of the extent or manner of participation, is
equally guilty. Principals include
those who directly and actively commit or attempt to commit the acts
constituting the crime, or, two, those who aid and abet the commission or
attempted commission of a crime.’ â€
(People v. Nero,
during argument, stating that “ ‘[t]hey’re equally liable.’ †(Ibid.) During deliberations, the jury asked if it
could find the sister guilty of a lesser homicide-related offense than the
brother. (Id. at pp. 509, 512.)
In response, the court reread CALJIC No. 3.00, including the “equally
guilty†language. The jury found both
defendants guilty of second degree murder.
(Id. at pp. 512- 513.)
We
concluded use of the instruction was error.
(People v. Nero, supra, 181
Cal.App.4th at p. 513.) Relying on
guilty of a lesser homicide-related offense than that committed by the actual
perpetrator. (Nero, at pp. 507, 513.)
We explained that an “aider and abettor’s mens rea is personal, [and] .
. . may be different than the direct perpetrator’s.†(Id. at
p. 514.) Thus, we held that “even
in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be
misleading.†(Id. at p. 518.)
On the
facts of Nero, we concluded the
instructional error was prejudicial. (
acted on a sudden quarrel or in the heat of passion. (Id. at
p. 519.) Moreover, the jury’s questions
clearly indicated it had been considering whether to impose a lesser degree or
offense on the sister. We reasoned:
“Notwithstanding that other instructions might have given them that option,
there is a reasonable possibility that the trial court’s response to their
questions improperly foreclosed it.†(
p. 520; see also People v. Loza, supra, 207
Cal.App.4th at pp. 351-352.)
The People argue that Fateh has
forfeited this contention because he failed to object or request modification
of the instruction below. (See
at p. 624; People v. Samaniego, supra, 172
Cal.App.4th at p. 1163 [finding challenge to CALCRIM No. 400 forfeited in
the absence of an objection]; People v.
Loza, supra, 207 Cal App.4th at p. 350 [because it is generally true that
aiders and abettors are equally guilty as direct perpetrators, the defendant’s
failure to request a modification forfeited the claim]; People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119.) However, where an “instruction given was wrong, the rule of forfeiture
does not apply.†(People v. Hudson (2006) 38 Cal.4th 1002, 1012.) In light of our conclusion in
could be confusing even under unexceptional circumstances, we consider the
merits of Fateh’s contention. (See § 1259.)
As we concluded in
potentially confusing even in unexceptional circumstances, and should not have
been given. (People v. Nero, supra, 181 Cal.App.4th at p. 518.) Therefore we must consider whether the
instructional error was harmless. “ ‘An
instruction that omits or misdescribes an element of a charged offense violates
the right to jury trial’ †and is evaluated under “ ‘the harmless
error test of Chapman v. California (1967)
386 U.S. 18, 24.’ †(
Cal.App.4th at p. 1165.)
We conclude the error in the instant
case was harmless. As in
stated that to establish guilt as an aider and abettor, the prosecution was
required to prove “1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the crime; [¶]
3. Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.†Applying this
instruction, the jury could not have found Fateh guilty unless it concluded he
both knew of the planned killing, and intended to assist in its commission. (See People
v. Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166.)
Unlike in Nero and
People v. Loza, supra, 207
Cal.App.4th 332––which also concluded the “equally guilty†language was prejudicial error––there was no indication in
the instant case that the jury was actually confused about the elements of
aiding and abetting liability. In
it could find the sister guilty of a lesser offense than the direct
perpetrator, indicating it did not understand the aiding and abetting
instructions given. The jury was then
mislead by the trial court’s reread of the “equally guilty†instruction. (People
v. Nero, supra, 181 Cal.App.4th
state of mind should be considered, indicating it failed to grasp instructions
stating it had to determine the aider and abettor’s own intent as to each
offense. (Loza, at pp. 349,
354-355.) The Loza trial court responded to the jury’s questions by stating it
should apply the evidence to the law as it had been instructed, an inadequate
and misleading response under the circumstances. (Id. at
p. 349.) In contrast, the record
here reveals no basis to conclude Fateh’s jury was confused about the
instructions or the necessity to prove his personal mens rea. (See People
v. Mejia, supra, 211 Cal.App.4th at p. 625; People v. Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166;
at p. 1119.)
Further, unlike in Nero
and Loza, the evidence here did
not readily allow for the possibility Fateh might have been guilty as an aider
and abettor, but only of a lesser offense than the actual perpetrators. In Nero,
there was evidence from which the jury could have found the sister acted
upon a sudden quarrel, or in the heat of passion. In Loza,
the jury had expressed concern that the aider and abettor might have acted
because she was worried about an attack.
(People v. Nero, supra, 181
Cal.App.4th at p. 519; People v.
Loza, supra, 207 Cal.App.4th at pp. 349, 356-357.) Here, in contrast, there was no similar
evidence suggesting Fateh might have been guilty of a lesser offense or
degree. Fateh drove the car to the crime
scene, double parked, waited while Gonzales and Vasquez exited and confronted
the victims, waited for them to return to the car, and drove off. The entire incident took only two
minutes. The jury clearly rejected the
“drug deal gone bad†theory offered by the defense, and in any event Gonzales’s
testimony was silent on whether Fateh was purportedly expecting a drug deal to
transpire. There was no evidentiary
basis from which the jury could have concluded Fateh, alone among the group,
misguidedly thought they were simply o
| Description | Defendants and appellants Anthony Gonzales and Francisco Vasquez appeal their convictions for two counts of attempted premeditated murder. Defendant and appellant Ali Fateh appeals his convictions for second degree murder, two counts of attempted premeditated murder, and evading an officer, causing death. Gonzales and Vasquez were sentenced to 58 years to life in prison; Fateh was sentenced to 65 years to life. Appellants contend the evidence was insufficient to support their attempted murder convictions, and the trial court committed instructional error. Appellant Fateh further asserts that his abstract of judgment contains a clerical error which must be corrected. We correct the abstract as Fateh requests. In all other respects, we affirm. |
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