Sanchez
Filed
6/25/12 P. v. Sanchez CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
GILBERTO DIAZ SANCHEZ,
Defendant and
Appellant.
F058796
(Fresno
Sup. Ct. No. F08902605)
APPEAL from
a judgment of the Superior Court of
County. Wayne R. Ellison, Judge.
Nuttall
& Coleman, Nuttall Coleman & Wilson, Roger T. Nuttall and Glenn M.
Kottcamp for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay
Lauterbach, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Gilberto Diaz Sanchez was convicted of three counts of
counts of kidnapping, based on an incident where he held four men at gunpoint
in a house, repeatedly threatened to kill them, and forced them into a
vehicle. He followed the vehicle as his
accomplice, Gabino Luis Basurto (Basurto), drove the four men into the field
and fatally shot three of them—Rafael Moreno Espinoza (Rafael); his brother,
Eraclio Moreno Espinoza (Eraclio); and Juan Zepeda Valencia (Juan), also known
as Carlos Albert Figueroa. The fourth
man, Cuahutemoc Valencia (Valencia), ran away as the other men were murdered
and survived the harrowing incident.
On appeal,
defendant contends that his convictions as an aider and abettor of murder and
attempted murder are not supported by substantial evidence, based on his
pretrial statements and trial testimony that he did not know Basurto was going
to kill the victims. He also challenges
the evidence in support of two of the four kidnapping convictions. Finally, he contends the jury improperly
received the flight instruction. We will
affirm.
On May 22,
2005, Valencia was staying with his sister and her husband, Eraclio, in
Fresno. Around 3:00 p.m., Valencia went
to a water park with Eraclio and his family.
Rafael, Eraclio’s brother, also joined them with his own family. Juan met them at the water park. Valencia did not know Juan or how he was
connected with Eraclio and Rafael.
Around 5:00
p.m., the entire group left the water park.
Juan invited Valencia to join the other men to watch a soccer game at a
friend’s house. Valencia agreed. The women and children left the water park
and went home.
Arrival at Basurto’s house
Valencia testified he left the
water park in Juan’s four-door red Jeep Cherokee. Juan drove Valencia, Eraclio, and Rafael to a
house on North Chance Street. Juan said
the house belonged to his friend “Luis,†later identified as Basurto. Valencia did not know Basurto.
Valencia testified that Juan parked
the red Jeep in front of Basurto’s house, called Basurto, and told him that
they were outside. Valencia testified
that Basurto let them into the house, and they walked into the living room. Basurto immediately locked the front door
from the top and bottom. Basurto then
said he was going to use the restroom, and walked out of the living room. Valencia, Rafael, Eraclio, and Juan stayed in
the living room.
Defendant enters the living room
Valencia testified that within a
few moments, Basurto returned to the living room with two gunmen. The two gunmen were later identified as
defendant and Francisco Diaz, defendant’s uncle, who was also known as “El
Grande.â€
Defendant pointed a handgun at
everyone. Valencia was afraid and
apparently tried to run away. Defendant
aimed the gun at Valencia and said that Valencia would be killed if he tried to
run. Defendant told Valencia, Rafael,
Eraclio, and Juan to get on the floor.
The four men obeyed his orders.
Defendant told Basurto to tie up the four men. Basurto used plastic zip-ties and tied up the
hands and feet of the four men, with their hands tied behind their backs, while
they were laying face-down on the floor.
Valencia testified that defendant
gave all the orders to Basurto and the other gunman. Valencia heard defendant say that he was from
Minnesota. Defendant told Basurto to
take everything from the victims.
Basurto removed wallets and jewelry from Valencia, Rafael, and Juan, and
placed them in a Macy’s shopping bag.
Eraclio did not have a wallet.
Defendant told Basurto to check the Jeep for any other possessions that
belonged to the four men.
Defendant orders Basurto to kill the victims
Valencia testified that defendant
told Basurto to put tape over Valencia’s mouth and kill him. Basurto taped Valencia’s mouth, and the other
victims yelled not to kill Valencia.
Valencia was crying and desperate.
Defendant produced another plastic cord and told Basurto to kill
Valencia. Valencia thought Basurto was
going to strangle him with the plastic cord.
Defendant then told the other
victims to calm down or he would kill all of them. The other victims calmed down, and defendant
told Basurto to remove the tape from Valencia’s mouth.
The victims are moved from the house to the garage
Valencia testified that defendant
told Basurto and the other gunman to move the victims into a car that was in
the garage, “because they were going to take us two at a time.†The victims’ ankles were still tied. Basurto and the other gunman lifted up
Valencia and Rafael and carried them to a gray car that was parked in the
garage.
The victims are moved from the garage to the house
Valencia testified they remained in
the garage for awhile. At some point,
Eraclio was brought into the garage, untied, and told to start the car. The car did not start, however, and the
second gunman removed Valencia and Rafael from the car and took them back into
the house.
Rafael pleaded with the gunmen to
loosen the plastic ties because they were too tight. Basurto used a blade and cut the zip-ties
from the victims’ hands and legs.
Basurto then used gray tape and restrained the victims’ hands in front
of their bodies. Their feet were not
taped.
Valencia
testified that defendant was present when Basurto cut the plastic ties and used
the tape to restrain their hands.
Defendant still had the gun.
Defendant told Basurto to kill everyone, or defendant would kill Basurto
and his family.
Valencia
testified that defendant then told the victims that they were going to take
them to a place and leave them there, and they would call their families the
next day to pick them up. Defendant told
Valencia not to run because he would kill him.
The victims are moved from the house to the Jeep
Defendant, Basurto, and the other
gunman took the four victims from the house and placed them in the Jeep, which
was still parked in front of the house.
The victims’ hands were tied in front of their bodies with tape, but
their legs were not bound and they were able to walk to the Jeep. Juan was placed in the front passenger seat,
Valencia was in the rear passenger-side seat, Eraclio was in the rear
driver’s-side seat, and Rafael was in the middle of the back seat.
Valencia
testified that Basurto got into the driver’s seat of the Jeep and drove away
from the house with the four victims.
Valencia looked back and thought a black truck was following them.
Valencia
testified that Basurto drove away slowly and then stopped. Juan told Basurto “to take us.†Basurto said “[N]o. Wait.
Because they were coming in the back.â€
Valencia looked behind and saw the black truck. Juan asked Basurto if he had a gun, and
Basurto said yes. Basurto said,
“ ‘[T]he guys behind are coming,’ †and accelerated the Jeep.
Basurto drives the Jeep into the field
Valencia
testified that Basurto drove the Jeep into a construction site in a field. Basurto stopped the Jeep by a big pile of
dirt. Valencia opened the back door and
ran, because he was frightened by defendant’s repeated orders to shoot all the
victims. As he ran from the Jeep,
someone fired multiple gunshots at him.
He looked back and saw flashes from the shots. He fell down, but he was not wounded. He got up and kept running. His hands were still taped together, and he
bit off the tape with his teeth.
Valencia testified he kept running
and continued to hear gunshots fired behind him. He jumped a fence, landed in a residential
area, and started knocking on doors.
Valencia yelled for help and shouted that his friends were in
danger. Someone finally opened their
door, and Valencia asked them to call the police and to help him.
Valencia
testified that he was still scared when the police arrived. He did not know what happened to his
friends. Valencia testified he had never
been involved with drugs or drug transactions.
He did not know if any of his friends were involved with drugs. Valencia never saw any drugs while he was at
Basurto’s house.
The police respond
Around
10:30 p.m., officers from the Clovis Police Department responded to the
dispatch that a Hispanic male arrived at a house and reported a shooting near
the intersection of Shepherd and Willow Avenues.
Officer Cartwright arrived at the
scene and encountered Valencia, who was extremely frightened and agitated. Cartwright testified that in his nine years
as a police officer, he had never seen anyone as frightened as Valencia. Valencia was so scared that he vomited in the
street.
Cartwright testified his initial
attempt to interview Valencia was a struggle because of Valencia’s emotional
condition and poor English. Valencia
told Cartwright that he and three friends were at a house; he waited in the car
with two friends while the third friend went into the house, and the third
friend and an unknown man returned to the car.
Valencia said the man, later identified as Basurto, drove the red car
and a black truck followed them. They
stopped in a field; Basurto started to shoot them; and Valencia ran away as
multiple shots were fired. Valencia did
not mention anything about going into a house or being restrained by duct tape.
Officer Gomez arrived at
Cartwright’s location and interviewed Valencia in Spanish. Valencia was still nervous, upset, and
crying. Gomez repeatedly advised
Valencia to calm down and stop crying so they could get a statement. After awhile, Valencia calmed down, and he
was able to answer questions. Valencia
then explained that he had been inside a house with the other men.
Discovery of the bodies
Officer Kristina Gilpin headed for
the field near Shepherd and Willow. It
was a secluded area surrounded by orchards, an open field, and an uninhabited
subdivision. There were barricades that
blocked street access because it was also a construction area. There were no street lights.
Gilpin drove around the barricades
and found a red Jeep Cherokee parked next to a dirt mound that was taller than
the Jeep.
Gilpin found three bodies in and
around the Jeep, and described it as one of the most dramatic scenes she had
seen in her career. One victim in a blue
shirt was on the ground by the front passenger door. Another victim in a red shirt was on the
ground by the rear passenger door, and the third victim in a white shirt was
inside the Jeep and wedged between the back and front seats.
The parties stipulated to the
identities and fatal wounds
suffered by the victims. Juan died from
one gunshot in the back of his head and two in his lower back. Rafael died from one gunshot in the back of
his head and two in the shoulder.
Eraclio died from one gunshot in the back of his head and one in his
face. All of the gunshots were fired at
close range, and the blood sprays in and around the vehicle indicated the
victims were fatally shot in the positions in which their bodies were found.
There were 8 nine-millimeter shell
casings found at the murder scene, in and around the Jeep and the victims’
bodies. A Macy’s bag was under the Jeep,
and it contained the wallets of Juan, Rafael, and Valencia.
The victims’ hands were duct-taped
together. Basurto’s fingerprint was
found on duct tape that was cut off from one of the victims. There were pieces of used and torn duct tape
found in the field about 400 feet away from the Jeep. Basurto’s cell phone was found in the field
about 20 feet away from the Jeep and between the Jeep and the used duct tape.
Search of the North Chance house
An officer drove Valencia around
the area that night until he was able to find and identify the North Chance
Street house where the incident began.
The house was about three to five miles away from the location where the
bodies were found. The house was a
rental unit, and the owner did not know anything about the crime.
On the
morning of May 23, 2005, the day after the homicide, the police searched the
North Chance residence. There were
documents and letters in the rental house which belonged to Basurto, Diana
Teran (Basurto’s girlfriend), and Teran’s sister, Anabell Sanchez.
A knife was on the living room
coffee table. A shoebox was hidden in
the living room’s vaulted ceiling. It
contained $44,000, with the cash stacked by denominations.
The police found an empty Glock
gunbox in a bedroom dresser drawer. They
also found $14,000 cash in the same dresser with the cash separated into
thousand-dollar stacks. A box of
.45-caliber Winchester ammunition was found on the top shelf of the bedroom
closet, and a magazine with .45-caliber rounds was in a dresser drawer. A scale with methamphetamine residue was also
in the bedroom.
A silver
Honda was in the garage. The Honda was
registered to a person who lived in Santa Ana, but that person had no knowledge
of the vehicle, and the actual owner of the Honda was never located.
A piece of a cut zip-tie was found
on the Honda’s rear passenger floorboard.
Another piece of a cut zip-tie and a piece of used gray/silver duct tape
were on the garage floor. The duct tape
found in the garage was similar in color and size to the duct tape that was
found in the orchard.
A
Volkswagon Passat with a Minnesota license plate was parked in front of the
house. It was registered to defendant,
and the registration papers were found in the bedroom.
The Honda
and Volkswagon were X-rayed to look for hidden drug compartments but nothing
was found.
The
officers continued to interview Valencia in the hours after the discovery of
the bodies. He was still terrified, but
he had calmed down. Valencia made it
clear that defendant was in charge of the entire incident at the house. The police department later determined
Valencia was not involved in any illegal drug activity.
Basurto’s arrest
On the
morning of May 23, 2005, the day after the homicide, police officers found a
black pickup truck at a Reedley motel.
The truck matched Valencia’s description of the suspect’s vehicle that
had followed the Jeep into the field.
Basurto was arrested as he got into the truck. Teran was also present.
was found under the truck’s passenger seat.
It was stipulated that the Glock was the weapon used to fatally shot
Juan, Rafael, and Eraclio.
The officers escorted Valencia to
the motel and asked him to look at Basurto.
Valencia began to cry and shake when he saw Basurto. He immediately identified Basurto as the
gunman and exclaimed, “[T]hat is the bastard that killed my friends.â€
Defendant’s telephone call
On August
9, 2006, Clovis Police Detective Joe Alvarado received a telephone call at his
desk. The caller identified himself as
defendant. Defendant said he was present
when the three victims were killed, but he did not pull the trigger. Defendant said Basurto killed the
victims. Defendant also said Basurto was
at the house with a suspect named “Juan†and another person known as “El
Grande.â€
Defendant
said that on the day of the murders, he arrived at the North Chance house, and
the other two suspects were already there.
Defendant admitted the Volkswagon belonged to him, but said that he had
sold it to “Diane.†The victims arrived
after 4:00 p.m. Defendant said he held a
black .22-caliber gun on the victims, but he did not tie up anyone.
Defendant said
he knew that Basurto was going to kill the victims. Defendant refused to turn himself in because
there was no one to care for his children.
Defendant said he was leaving for Mexico to start a new life.
Defendant’s postarrest statements
On April
17, 2008, defendant was arrested in Visalia by a SWAT team. Detective Alvarado advised him of the
and he agreed to answer questions.
Defendant acknowledged that he had called Alvarado in 2006. Defendant said the person known as “El Grandeâ€
was his uncle, Francisco Diaz.
At trial, Detective Alvarado
testified about defendant’s extensive statements regarding the kidnappings and
murders. Defendant said he had been
living in Minnesota before the murders.
He arrived in Fresno and was looking for money. Defendant was invited to a party at Basurto’s
house for Teran’s daughter. He had heard
that Teran and Basurto were involved in robberies and would kill people. Defendant said Teran was a “dope riper,â€
someone who made deals with and then robbed drug dealers.
Defendant told Alvarado that on the
night before the murders, he met Basurto, Teran, and Francisco at a Fresno
nightclub. Defendant said a “contractâ€
was made with Basurto, that they were going to rob, steal drugs, and kill a
drug dealer named “Juan.†Alvarado
testified to defendant’s statement about the contract:
“Basically, that it was going to be a dope rip the
following day. That [defendant] was
going to be assisting … Basurto, the doper.
And that they were going to pay [defendant] $6,000. And they talked about the details and the
fact that they were going to tie up one of the drug dealers by the name of
Juan. And they were going to take him
out and kill him.â€
Defendant
told Alvarado that he agreed to assist in the contract for the robbery. He also knew “they were going to end up
killing Juan, but that his part was to, basically, hold a gun and point it at
the victims,†and he would be paid $6,000.
Francisco would also receive $6,000.
Defendant told Alvarado that he and
Francisco were offered an additional $1,000 if they killed the drug
dealer. Defendant said they both
“accepted it and eventually received it.â€
Defendant
said he received directions to the North Chance house. Defendant and Francisco met Basurto at the
house. Shortly afterward, the four
victims arrived at the house. Defendant
said Basurto pulled his gun, and defendant and Francisco followed him. Defendant held the victims at gunpoint while
Basurto tied their hands and wrists with zip-ties. Defendant said none of the victims were
armed, and he never saw any drugs.
However, defendant also said one of the victims arrived in a gray car,
and there was a suitcase of cocaine that had been removed from that car.
Defendant
admitted that he told Basurto to kill all the men. However, defendant said he was just acting so
the victims would not try anything.
Defendant said that Teran was the
“author†of the crime. The contract was
only to kill one person, but three other people showed up. Defendant said that after the incident began,
he talked to Basurto about the other victims and asked for more money “because
there was an additional three bodies.â€
Basurto offered defendant another $1,000 if he helped him kill all the
victims. Defendant claimed he did not
accept the offer. However, he remained
in the house and continued to assist Basurto.
Defendant said that he told Basurto
and Teran not to kill anyone. Defendant
insisted he was only offered money to tie someone up so they could steal drugs.
Defendant
said he helped Basurto move the four victims into the Jeep. Defendant and Francisco got into a black
pickup truck, which belonged to Basurto and Teran. Defendant drove the truck and followed Basurto
as he drove the Jeep. Defendant said he
knew Basurto was going to kill the victims.
Basurto drove in the field and killed three men.
Defendant said he stayed in the
truck, and he did not hear anything because the windows were closed. He saw Basurto running with a handgun. Basurto got into another black pickup truck
which was driven by Teran, and which was also in the field.
Defendant
said that after the murders, he met Basurto and the others in Dinuba and they
exchanged vehicles. Defendant was not
paid that night, and he returned to Minnesota.
Defendant said he was eventually paid when the money was wired to him in
Mexico. Francisco was also paid.
Defendant
testified at trial and admitted he called Detective Alvarado and talked about
the incident. However, his trial
testimony was different compared to his pre and postarrest statements to
Detective Alvarado. Defendant testified
that Basurto was like an older brother to him.
Defendant had heard that Basurto and his girlfriend, Diana Teran, were
involved in drug trafficking.
Defendant
testified that Basurto called him in Minnesota and asked him to help with a
drug deal at the North Chance house.
Basurto said he was going to be involved in a cocaine deal which
involved almost $250,000 and asked defendant to provide protection for
him. Defendant’s uncle, Francisco Diaz,
was also asked to provide security.
Basurto promised to pay $6,000 to both defendant and Francisco. Defendant realized this was going to be a
dangerous situation.
Defendant testified that when he
initially arrived at the house, Basurto offered him another $1,000 to kill
someone. Defendant testified that he was
surprised, he refused, and he told Basurto not to kill anyone. Basurto gave defendant a .22-caliber
gun. Defendant and Francisco waited in
another room for the person to arrive, and they were only supposed to come out
if there were problems.
Defendant
testified that only one person, “Juan,†was supposed to be there for the drug
transaction, but Juan arrived with three other people. Juan and the other three men arrived in two
cars: a red Jeep, parked in front of the
house, and a gray car which a victim parked in the garage. Defendant believed Valencia was in the gray
car that pulled into the garage.
Basurto told defendant and Francisco
to help him because four men arrived.
Defendant admitted he pointed the gun at the victims but claimed he
followed Basurto’s orders, and that Basurto was on the telephone with Teran,
who was giving the instructions. Basurto
took the victims’ wallets to check their identifications.
Defendant testified that Basurto
became angry when the other three people arrived. He asked Juan why they were there. Juan said he talked to Teran, and she said it
was okay for the others to be there.
Basurto threatened to kill all the
men. Defendant pleaded with Basurto not
to kill the men. Basurto replied that
Teran said to kill them because Juan knew personal information about her. However, Basurto promised defendant that he
would just take the victims and “throw them out.â€
Defendant testified he took the
telephone from Basurto, spoke directly to Teran, and told her not to have the
men killed. Teran insisted that they had
to be killed.
Defendant
testified the problem became “bigger,†and he sat on the sofa and did not want
anything more to do with “those people.â€
However, defendant remained in the house and did not intervene or help
the victims. Basurto tied up the four
victims with duct tape, put them in the Jeep, and got into the driver’s seat.
Defendant testified that at some
point, a suitcase was removed from the gray car, and it contained drugs. Defendant testified he gave the suitcase to
Teran, who had apparently arrived at the house.
Teran opened the suitcase, and defendant saw packages, which he believed
contained cocaine.
Defendant got into a black truck
while Teran and Francisco were in another black truck. Defendant asked Teran for directions to the
freeway because defendant intended to drive to his sister’s house in Dinuba. Teran told defendant to follow her car. Defendant drove the black truck, followed
Teran’s truck, and they arrived in a field.
Defendant testified he never heard any shots in the field, but he saw
Basurto run and get into Teran’s truck.
Defendant claimed he did not know anyone had been killed until they
arrived at his sister’s house in Dinuba, and Basurto told him.
Defendant testified that he went to
the North Chance house without knowing that Basurto was going to kill the
men. Defendant never threatened to kill
Valencia or hurt anyone. None of the
victims had any weapons, and he did not know them. He further testified that Teran ordered
Basurto to kill the victims. Defendant
admitted that he knew Basurto would buy and steal drugs from people. Defendant never called anyone for help that
night because he was sure that Basurto was not going to kill the victims. Defendant claimed he would have called the
police if he had known that Basurto was going to kill the men. However, defendant admitted that he was
present when Basurto threatened to kill the men.
The charges, convictions, and sentence
In 2006,
Basurto was separately tried and convicted of three counts of first degree
murder, with a multiple murder special circumstance (Pen. Code,
attempted murder. Basurto was sentenced
to 75 years plus 20 years to life without parole, followed by three consecutive
terms of 25 years to life, and three consecutive life terms without the
possibility of parole. On October 31,
2007, this court affirmed Basurto’s convictions in an unpublished opinion. (People
v. Basurto, supra, F051594.)
In 2008,
defendant was charged with three counts of first degree murder (§ 187,
subd. (a)), with a multiple murder special circumstance (§ 190.2, subd.
(a)(3)), and the special allegation that defendant personally used a firearm
(§ 12022.53, subd. (b)); one count of attempted first degree murder with
the special allegation that defendant personally used a firearm
(§ 12022.53, subd. (b)); four counts of kidnapping (§ 207, subd.
(a)); and three counts of second degree robbery (§ 211).
In 2009, after a lengthy jury
trial, defendant was convicted of three counts of the lesser included offenses
of second degree murder (counts I-III), with the firearm enhancement found
true, and the multiple murder special circumstance found not true; the lesser
included offense of attempted second degree murder (count IV), with the firearm
enhancement found true; and four counts of kidnapping (counts V-VIII). He was found not guilty of three counts of
second degree burglary (counts IX-XI).
Defendant was sentenced to an
aggregate term of 45 years to life plus 47 years.
DISCUSSION
I. Defendant’s convictions are supported by
substantial evidence
Defendant
was convicted as an aider and abettor on three counts of second degree murder
and one count of attempted second degree murder, based on the evidence that
Basurto fired the fatal shots.
On appeal, defendant contends his
convictions as an aider and abettor for murder and attempted murder are not supported
by substantial evidence. In making this
argument, defendant exclusively relies on his pretrial statements and trial
testimony that he only agreed to help Basurto with the drug robbery; he never
intended to kill anyone; he did not think Basurto was going to kill the
victims; he told Teran and Basurto not to kill them; and he withdrew from his
participation in the crimes before Basurto drove the victims into the field.
evidence
In
reviewing defendant’s substantial evidence contentions,
well-settled principles on appeal. 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; People v. Bolin (1998) 18 Cal.4th 297, 331.) 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.)
“In making this determination, we do
not reweigh the evidence, resolve conflicts in the evidence, draw inferences
contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]
Moreover, because it is the jury, not the reviewing court, that must be
convinced of the defendant’s guilt beyond a reasonable doubt, we are bound to
sustain a conviction that is supported by only
evidence is also reasonably susceptible of an interpretation that suggests
innocence. [Citation.]†(People v. Little (2004) 115
Cal.App.4th 766, 771; People v. Young (2005) 34 Cal.4th 1149, 1181.)
do not justify the reversal of a judgment, for it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends. [Citation.]
We resolve neither credibility issues nor evidentiary conflicts; we look
for substantial
evidence. [Citation.]†(People v. Maury (2003) 30 Cal.4th
342, 403.)
hypothesis whatever is there sufficient substantial
(People v. Bolin, supra,
18 Cal.4th at p. 331.)
B. Second degree murder
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd.
(a).) “Attempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.
[Citations.]†(
623.)
“Second degree
murder is the unlawful killing of a human being with malice, but without the
additional elements (i.e., willfulness, premeditation, and deliberation) that
would support a conviction of first degree murder. [Citations.]
[¶]
It is express ‘when there is manifested a deliberate intention
unlawfully to take away the life of a
creature.’ [Citation.] It is implied ‘when no considerable
provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart.’
[Citation.] We have held that
implied malice has both a physical and a mental component, the physical
component being the performance of ‘ “an act, the natural consequences of
which are dangerous to life,†’ and the mental component being the
requirement that the defendant ‘ “knows that his conduct endangers the
life of another and ... acts with a conscious disregard for life.†’ [Citations.]â€
(People v. Hansen (1994) 9
Cal.4th 300, 307-308, overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201, fn. 8.)
“ ‘All persons concerned in the commission of a crime, ... whether
they directly commit the act constituting
offense, or aid and abet in its commission, ... are principals in any crime so
committed.’ [Citations.] Thus, a person who aids and abets a crime is
guilty of that crime even if someone else committed some or all of the criminal
acts. [Citation.] Because aiders and abettors may be criminally
liable for acts not their own, cases have described their liability as
‘vicarious.’ [Citation.] This description is accurate as far as it
goes. But … the aider and abettor’s
guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination
of the direct perpetrator’s acts and the aider and abettor’s own acts
and own mental state.†(
1116-1117, italics in original.)
A person aids and abets the commission of a crime
when he, acting (1) with knowledge of the perpetrator’s unlawful purpose, and
(2) with 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. (People v. Croy (1985) 41 Cal.3d 1,
11-12; People v. Beeman (1984) 35
Cal.3d 547, 561.) Direct evidence of the
mental state is rarely available and may be shown with circumstantial
evidence. (People v. Beeman, supra, at pp. 558-559.)
“ ‘To prove that a defendant is an accomplice ... the prosecution
must show that the defendant acted “with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of committing, or
of encouraging or facilitating commission of, the offense.†[Citation.]
When the offense charged is a specific intent crime, the accomplice must
“share the specific intent of the perpetratorâ€; this occurs when the accomplice
“knows the full extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the perpetrator’s
commission of the crime.†[Citation.]’ [Citation.]
What this means here, when the charged offense and the
intended offense--murder or attempted murder--are the same, i.e., when guilt
does not depend on the natural and probable consequences doctrine, is that the
aider and abettor must know and share the murderous intent of the actual
perpetrator.†(People v. McCoy, supra, 25 Cal.4th at p. 1118, fn. omitted.)
Thus, to be guilty of murder and 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… as an aider and abettor must intend to
kill. [Citation.]†(People
v. Lee, supra, 31 Cal.4th 613, 624.)
“[P]roof of an attempt by a direct perpetrator is sufficient for
purposes of aiding and abetting liability.
If a direct perpetrator is thwarted and guilty only of an attempt, an
aider and abettor may still be guilty of aiding and abetting the attempt. [Citations.]â€
(People v. Perez (2005) 35
Cal.4th 1219, 1226, italics in original.)
Finally, in
order to withdraw as an aider and abettor, a party must notify his
prevent commission of the crime.
[Citation.]†(People v.
Belmontes (1988) 45 Cal.3d 744, 793; People
v. Jackson (1996) 13 Cal.4th 1164, 1221.)
D. CALCRIM No. 401
The jury in this case was instructed
with CALCRIM No. 401, aiding and abetting and intended crimes:
“To
prove the defendant is guilty of a crime based on aiding and abetting that
crime the People must prove that one, the perpetrator committed the crime; two,
the defendant knew that the perpetrator intended to commit that crime; three,
before or during the commission of the crime the defendant intended to aid and
abet the perpetrator in committing that crime; and four, the defendant’s words
or conduct did in fact aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he knows of
the perpetrator’s unlawful purpose and he specifically intends to and does in
fact aid, facilitate, promote, encourage or instigate the perpetrator’s
commission of that crime. If all of
these requirements are proved then the defendant does not need to have been actually
present when the crime was committed to be guilty as an aider and abettor.
“If you conclude that the
defendant was present at the scene of the crime or failed to prevent the crime
you may consider that fact in determining whether the defendant was an aider
and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime does
not by itself make him an aider and abettor.
“A person who aids and abets a
crime is not guilty of that crime if he withdraws before the crime is
committed. To withdraw a person must do
two things; one, he must notify everyone else he knows is involved in the
commission of the crime that he is no longer participating. That notification must be made early enough
to prevent the commission of the crime; and two, he must do everything
reasonably within his power to prevent the crime from being committed. He does not have to actually prevent the
crime.
“The People have the burden of
proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden then
you may not find the defendant guilty under an aiding and abetting theory.â€
CALCRIM No. 401 correctly states law on aiding and abetting. (People
v. Stallworth (2008) 164 Cal.App.4th 1079, 1103.)
E. Analysis
Defendant contends the prosecution
failed to prove all the elements of aiding and abetting beyond a reasonable
doubt, as set forth in CALCRIM No. 401.
Defendant argues there is insufficient evidence that he knew Basurto
intended to murder the victims, that he intended to aid and abet Basurto in
murdering the victims, before or during the commission of the crimes, and that
he did in fact aid and abet Basurto’s commission of the crimes by his words or
conduct. Defendant further argues that
he withdrew from his prior agreement with Basurto, prior to the moment when the
four men were loaded into the Jeep and driven into the field.
Defendant’s convictions as an aider
and abettor for three counts of second degree murder, and one count of
attempted second degree murder, are supported by overwhelming evidence, based
on the trial testimony of Valencia, the lone survivor. Valencia repeatedly testified that defendant
was in control of the entire situation.
He entered the living room with a gun, pointed the weapon at the four
men, and ordered them to get on the floor.
Valencia apparently made a move to escape, and defendant specifically
threatened to kill Valencia if he tried to run.
Defendant ordered Basurto to tie them up, and told Basurto to take
everything from them. Basurto restrained
the men with zip-ties while they were laying face-down on the floor.
Defendant ordered Basurto to tape Valencia’s mouth and kill him. Basurto again followed defendant’s orders,
produced another plastic zip-tie, and Valencia believed he was about to be strangled. The record strongly implies that the only
reason Valencia was not killed at that moment was because the other three men
yelled and pleaded for his life.
However, defendant remained in control of the situation. Basurto did not withdraw from the act until
defendant told him to remove the tape from Valencia’s mouth. Defendant then told the men that he would
kill all of them unless they calmed down.
Defendant’s control over the
situation continued as he told Basurto and Francisco to move the four victims
into the garage, two at a time. Basurto
and Francisco carried two of the victims into the garage. The only reason the men were removed from
that car, however, was because the vehicle would not start.
Valencia testified they were taken
back into the house. Defendant was still
there and armed when Basurto cut off the plastic zip-ties from the victims’
hands and feet, and immediately restrained the men’s hands with duct tape. At that point, defendant told Basurto to kill
everyone, or defendant would kill Basurto and his family.
Defendant then told the victims they would be dropped off someplace for
their families to pick them up.
Defendant again threatened Valencia that he would kill him if he tried
to run. Defendant, Basurto and Francisco
took the four men from the house into the Jeep.
Basurto drove the Jeep into the field, while defendant followed in the
pickup truck. Basurto murdered the three
victims while Valencia ran for his life, and defendant waited in the field in
the other truck.
Valencia’s testimony thus
establishes that defendant knew Basurto was going to kill the men, that
defendant intended to aid and abet Basurto by his conduct before the murders,
and defendant’s words and conduct in fact aided and abetted the murders. Defendant continually exercised control over
the entire situation, and repeatedly ordered Basurto to kill all the men. While defendant may have told the men that
they would be dropped off and released somewhere, the record strongly implies
that he made that statement to avoid the same type of hysteria demonstrated by
the men when he ordered Basurto to kill Valencia in the living room.
In his appellate brief, defendant
virtually ignores Valencia’s testimony about the kidnappings and murders, and
instead relies on his own trial testimony in support of his argument that his
convictions are not supported by substantial evidence, particularly that he did
not know Basurto intended to kill the victims, that he never intended to aid
and abet murder, that he tried to convince Basurto and Teran not to kill the
victims, that Basurto later assured him he would drop off the victims someplace
and not kill them, and that he had no idea that Basurto was going to kill the
men when he drove the Jeep into the field.
Defendant further asserts that he withdrew from his prior “contractâ€
with Basurto before the victims were placed in the Jeep and driven into the
field, again based on his trial testimony that he did not want anything more to
do with Basurto’s drug transaction, that he wanted to leave and had asked Teran
for directions to the freeway so he could drive to his sister’s house, and she
told him to follow her truck, and he did so with the belief that she was taking
him to the freeway.
Defendant further argues that
Valencia was not credible because he never satisfactorily explained his
presence in the North Chance house during a purported drug deal. Defendant asserts that Valencia was not as
“forthright†about the purported drug deal as defendant was during his own
trial testimony, and Valencia’s failure to address this issue undermined his
credibility as to whether defendant or Basurto was the person in charge during
the kidnappings and murders.
As we have explained, however, in
reviewing convictions for substantial evidence, we do not reweigh the evidence,
resolve evidentiary conflicts, or reevaluate the credibility of the witnesses,
which are all matters within the jury’s exclusive province. (People v. Little, supra, 115
Cal.App.4th 766, 771; People v. Young, supra, 34 Cal.4th 1149, 1181; People
v. Maury, supra, 30 Cal.4th 342, 403.)
The jury in this case heard the trial testimony of both Valencia and
defendant. The jury also heard the
prosecution’s evidence about defendant’s pretrial statements. The jury obviously made its own credibility
determinations and discounted defendant’s claims that he was not in charge of
the situation, and he did not know the men were going to be murdered.
Moreover, defendant’s own statements supported many details of
Valencia’s testimony. During
defendant’s telephone conversation with Detective Alvarado, he said he was
present when the three victims were killed, but that Basurto killed them. Defendant also said he knew that Basurto was
going to kill the victims.
In his postarrest statement,
defendant admitted that he knew Basurto and Teran were involved in robberies
and murders and he made a contract with Basurto to rob, steal drugs, and kill a
drug dealer named “Juan.†Defendant said
that he knew “they were going to end up killing Juan, but that his part was to,
basically, hold a gun and point it at the victims,†and he would be paid
$6,000. Defendant further said that he
and Francisco were offered an additional $1,000 if they killed the drug dealer,
and they both “accepted it and eventually received it.†Defendant admitted that he told Basurto to
kill the men but claimed he was just acting.
By the time
of trial, defendant still admitted that he agreed to provide security for
Basurto’s drug transaction, and that he was offered additional money to
kill. He also admitted that he was
present when Basurto said he was going to kill the four men. However, he changed his story and claimed he
refused the additional money, he repeatedly begged Basurto and Teran not to
kill the victims, and he believed Basurto was going to let the victims go. He also claimed that Teran gave the orders to
Basurto over the telephone, and Basurto and defendant followed Teran’s orders.
As for his insistence that he
withdrew from his prior “contract,†he merely claimed that he sat on the sofa
and did not want anything more to do with the deal, but he never intervened to
release the men despite Teran’s repeated orders to kill them and her alleged
refusal to heed defendant’s pleas to let them go. He also admitted accepting the promised fee
of $6,000 for his assistance. Even if
his testimony on this point is given any credence, it still failed to show that
he withdrew from his involvement in the crimes.
As explained
aider and abettor, a party must notify his accomplices and have “done
everything in his power to prevent commission of the crime. [Citation.]â€
(People v. Belmontes, supra, 45 Cal.3d 744, 793;
1164, 1221.) Valencia testified that
defendant remained in control of the situation during the entire incident. At the very most, he sat on the sofa and
watched the rest of the events unfold.
He allegedly took the telephone away from Basurto and told Teran not to
kill the men, but he admitted that Teran insisted that the four men had to be
killed. He further claimed that he
followed Teran’s truck because he thought she was taking him to the freeway so
he could leave. However, he never told
Basurto, Francisco, or even Teran that he was withdrawing from his prior
agreement with Basurto. He did not take
any steps to protect the men, even though he knew that Teran refused to back
down from her orders to Basurto to kill the four men. The jury obviously rejected defendant’s
credibility and his trial claims on all these matters. We find that defendant’s convictions for
attempted murder and murder are supported by overwhelming evidence.
II. Substantial evidence of kidnapping
Defendant
was convicted of four counts of kidnapping.
On appeal, he contends that two of these counts are not supported by
substantial evidence.
“To prove a defendant guilty of kidnapping, the prosecution must
establish that (1) the defendant took, held, or detained another person by
using force or by instilling reasonable fear; (2) using that force or fear, the
defendant moved the other person, or made the other person move a substantial
distance; and (3) the other person
did not consent to the
movement. (§ 207, subd. (a).)†(People
v. Burney (2009) 47 Cal.4th 203, 232.)
“[T]he word ‘substantial’ means a ‘significant amount’ as contrasted
with a distance that is ‘trivial .…’ †(People v. Morgan (2007) 42 Cal.4th
593, 606-607.)
There is overwhelming evidence to
support defendant’s convictions for four counts of kidnapping. As explained in section I,
was in charge of the entire situation, and Basurto and Francisco followed his
orders. Defendant ordered the two gunmen
to move the men into the garage, two at a time.
Valencia and Rafael were carried into the garage because their legs were
bound. They were eventually removed from
the car because the vehicle wouldn’t start.
Defendant, Basurto, and Francisco later moved all four men into the
Jeep. Basurto drove the Jeep into the
field while defendant followed in the black truck. The entirety of the record thus supports the
jury’s convictions for the kidnapping of all four men.
As in issue I, ante, defendant’s challenges to his kidnapping convictions are
primarily based on his own trial testimony.
Defendant concedes that he was still assisting Basurto when he carried
Valencia and Rafael into the garage, and that he was properly convicted of two
counts of kidnapping based on the movement of those two victims. However, defendant again asserts that he
withdrew from his prior “contract†with Basurto before the four men were moved
into the Jeep, and before Basurto drove the men into the field. Defendant thus argues that he was improperly
convicted of kidnapping Juan and Eraclio, because those two men were moved into
the Jeep after he had withdrawn from his contract with Basurto.
As explained in section I,
establish that he met the legal standard to have withdrawn as an aider and
abettor. Moreover, the jury heard and
rejected defendant’s version of events, and his convictions for four counts of
kidnapping are supported by overwhelming evidence.
III. The flight instruction
was supported by the evidence
Defendant contends the court
erroneously instructed the jury with CALCRIM No. 372, flight, because the
instruction was not supported by the evidence.
A. CALCRIM No. 372
As given to the jury in this case, CALCRIM No. 372 states:
“If the defendant fled immediately
after the crime was committed, that conduct may show that he was aware of his
guilt. If you conclude that the
defendant fled, it’s up to you to decide the meaning and importance of that
conduct. However, evidence that the
defendant fled cannot prove guilt by itself.â€
The trial court has a sua sponte duty to give
the flight instruction pursuant to section 1127c,
which “requires that whenever evidence of flight is
relied on to show guilt, the court must instruct the jury that while
which, if proved, the jury may consider.
This statute was enacted to abolish the common law rule that the jury
could not be instructed on flight unless there was
evidence defendant knew he had been accused.
[Citations.]†(People v.
Pensinger (1991) 52 Cal.3d 1210, 1243; People v. Henderson (2003)
110 Cal.App.4th 737, 742.)
proper where the evidence shows that the defendant departed the crime scene
under circumstances suggesting that his movement was motivated by a
consciousness of guilt.†’
[Citations.] Evidence that a
defendant left the scene is not alone sufficient; instead, the circumstances of
departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.]
To obtain the instruction, the prosecution need not prove the defendant
in fact fled, i.e., departed the scene to avoid arrest, only that a jury could
find the defendant fled and permissibly infer a consciousness of guilt from the
evidence. [Citation.]†(People v. Bonilla (2007) 41 Cal.4th
313, 328, italics in original.)
“[F]light requires
neither the physical act of running nor the reaching of a far-away haven. [Citation.]
Flight manifestly does require, however, a
purpose to avoid being observed or arrested.â€
(People v. Crandell (1988) 46 Cal.3d 833, 869, disapproved on
another ground in People v. Crayton (2002) 28 Cal.4th 346,
364-365.) Moreover, the instruction
assumes neither the guilt nor the flight of the
defendant. (People v. Campos
(1982) 131 Cal.App.3d 894, 900; People v. Escobar (1996) 48 Cal.App.4th
999, 1029, overruled on other grounds in People v. Mendoza (2000) 23
Cal.4th 896, 911, 914, 923-925.)
“Alternative explanations for flight conduct go
to the weight of the evidence, which is a matter for the jury, not the court,
to decide. [Citations.]†(People v. Rhodes (1989) 209
Cal.App.3d 1471, 1477.)
“The focus of the instruction is on the
defendant and the question of whether there was flight
and whether it is reasonable to infer consciousness of guilt from such
instruction goes on to limit the jury’s use of the evidence in that it advises
the jury that flight alone cannot support a finding of
guilt. Thus [the instruction] serves the
dual purpose of permitting an inference of guilt, but at the same time provides
the defendant with some protection against misuse of such evidence. [Citations.]â€
(People v. Henderson, supra, 110 Cal.App.4th at p. 742.)
The flight instruction was supported by
Valencia’s testimony, and defendant’s pretrial statements and his own
Valencia testified that defendant was in control of events, and that he
repeatedly ordered Basurto to kill Valencia and the other three men. Defendant threatened to kill Basurto’s family
if he failed to kill the four men.
Defendant ordered Basurto to place the four men in the Jeep, while
defendant got into a black pickup truck that was also parked in front of the
house.
Valencia testified that Basurto pulled away
from the house, but he stopped the Jeep and had a brief conversation with
Juan. Basurto looked back, realized the
other truck was following him, and then started to drive the Jeep again. Valencia’s testimony on this point strongly
implied that Basurto might have been willing to let the men go, but that he
felt compelled to continue and comply with defendant’s orders when he saw the
other vehicle, which contained defendant.
Based on Valencia’s testimony, the jury could
have reasonably concluded that defendant knew Basurto was going to kill the
four men when they reached the orchard.
There is undisputed evidence that Basurto fired at least nine shots at
the four men, killing three of them in and around the Jeep and leaving their bodies
where they fell, but missing the frantic Valencia as he ran from the field.
Defendant’s own statements provided the
additional evidence in support of the flight instruction. Defendant said that immediately after the
murders, Basurto ran back to Teran’s truck and they immediately left the
area. They did not return to the North
Chance Street house, but instead everyone met at the house of defendant’s
sister in Dinuba, where they exchanged vehicles. The next morning, Basurto and Teran were
found at a Reedley motel, instead at the North Chance house where they had been
living. In the meantime, defendant went
back to Minnesota and then left for Mexico, where the previously agreed-upon
contract price of $6,000 was wired to him.
Based on this evidence, there was substantial evidence to support the
flight instruction because the jury could have found defendant, who was in
control of the situation and repeatedly ordered Basurto to kill the men, fled
immediately after the murders, and permissibly infer a consciousness of guilt
from the evidence. (People v.
Bonilla, supra, 41 Cal.4th 313, 328.)
DISPOSITION
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Wiseman, Acting P.J.
_____________________
Franson, J.
the parties by their first names; no disrespect is intended. There is no evidence that the lone survivor,
Cuahutemoc Valencia, was related to Juan Zepeda Valencia, also known as Carlos
Albert Figueroa.
three counts of first degree murder, with a multiple murder special
circumstance, and one count of attempted first degree murder. This court affirmed his convictions on
appeal. In doing so, this court’s
unpublished opinion referred to some of the parties by different aliases, based
on the testimony that was introduced in that case. For example, “Juan†was identified only as
Carlos Albert Figueroa. Defendant’s
second accomplice was identified as “Poncho,†whereas the evidence in this case
identified that individual as Francisco Diaz (Francisco), also known as “El
Grande.†(See People v. Basurto (Oct. 31, 2007, F051594) [nonpub. opn.].) In this opinion, we will identify the parties
based on the evidence introduced at defendant’s trial.
