Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Los Angeles County Super. Ct. No. PA050187.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
John Anthony Diaz was convicted of two counts of first degree murder with gang, personal firearm use and special circumstance allegations found true. The trial court sentenced him to state prison for terms of life without the possibility of parole on both counts plus consecutive terms of 25 years to life for the firearm enhancements as to each count. Diaz appeals, claiming the trial court erred in admitting gang expert testimony, the evidence was insufficient to support his first degree murder convictions and the abstract of judgment must be corrected to strike a parole revocation fine. We agree that the abstract of judgment should be corrected but otherwise affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
On May 8, 2004, Sylmar High School student Christopher Lara hosted a birthday party at his home. Flyers had been distributed to announce the party—open to anyone who wanted to attend. Lara arranged for a friend (Bruno Vargas) to help him with security at the party, searching guests as they entered.
Lara asked his friend Johnny Ray Medrano “to deejay” (play the music at the party). Medrano brought his friends Anthony Reynozo, Edgar Esqueda and Tony Vasquez to work the party with him. The sound equipment was set up in a room in front of some French doors leading to the backyard where most of the 70 to 80 partygoers congregated.
Medrano, Reynozo and Esqueda regularly worked together playing music at parties. Medrano’s friend Vasquez came along just for the night. Neither Reynozo nor Esqueda carried a weapon and neither saw Medrano or Vasquez with one.
That night, several Bad Ones gang members—Diaz, Tim Martinez, Mark Galeano, Ivan Aguilar, Juan Camarena and Juan Diego Ursua—were hanging out along with two girls (Joanna Anguiano and Yoana Cazares). They drove around in Martinez’s truck and ended up at Lara’s party at about 8:30 or 9:00 p.m.
Diaz, Camarena, Cazares and Anguiano had all attended Sylmar High School.
The Bad Ones group left briefly to go to Aguilar’s house where they met up with about 10 more people. Joined by two more carloads of people, the group returned to the party.
Diaz’s friend Ursua (another Sylmar High School student) had played football with Esqueda (one of the “deejays”). Medrano noticed Ursua “dogging” Esqueda, giving him dirty looks. When Esqueda took a break, Ursua and others with him confronted Esqueda and were talking “smack.” They told Esqueda they were going to fight “no matter what.” Esqueda said he was just there to do his job and have fun.
During the party some of the guys yelled “Bad Ones, San Fer” at the group playing the music when they walked by. Ursua and others with him walked back and forth in front of the music booth, making hand signals. Esqueda recognized them as San Fer gang signs.
At one point, Diaz was hanging out with his fellow gang members and told them the “deejay was mad dogging” him.
Toward the end of the party, a group of about 15 to 20 people, including Ursua, Galeano and a “whole bunch of [their] friends,” rushed inside the deejay booth and were “talking trash” to Esqueda who was alone in the booth. Ursua accused Esqueda of calling his house and “talking shit.” Esqueda had no idea what he was talking about. When Esqueda said he hadn’t done as Ursua claimed, Ursua said “Fuck you, Bad Ones,” and punched him in the face. Esqueda punched Ursua and knocked him out.
Galeano jumped in to continue the fight with Esqueda. Many others attacked Esqueda and beat him up. Esqueda tried to fight back but was outnumbered. Reynozo tried to get inside to help Esqueda but was blocked by the crowd. Medrano went to get Vasquez and the two picked up Esqueda who was on the ground.
Diaz, who had been standing outside the room watching the fight, pulled out a gun, aimed it toward the fight and fired at least two shots before running away. (Esqueda heard about five shots.) Someone yelled out “Bad Ones, Crew” and “San Fer.” Then people were yelling, screaming and running away. Reynozo made it into the room and saw Vazquez and another person (Hector Villareal) on the floor, soaked with blood. Neither Vasquez nor Villareal had a gun.
Reynozo, Martinez, Cazares and several others saw Diaz draw a gun and fire it in the direction of the fight.
When Anguiano (who had come to the party with Diaz) heard the first gunshots, she ran toward Martinez’s truck. As she ran, she heard more gunshots and saw Camarena (another Bad One) fire his gun in the air, yelling “San Fer,” as he and Cazares also ran toward Martinez’s truck. Diaz, carrying his gun, got into the truck with others from the group and put his gun in the glove compartment. When Martinez got to Aguilar’s house, Diaz and Camarena gave Aguilar their guns.
Reynozo and others called 9-1-1, but when no ambulance had arrived, he helped empty the van Medrano had used to bring the music equipment so the van could be used to take Vasquez and Villareal to the hospital. Both died from their gunshot wounds in the early hours of May 9.
Vasquez had been hit with two bullets, including one to his abdomen, and died as a result. Villareal died from a single gunshot wound to the left lumbar region of his back that struck arteries and caused internal bleeding.
A detective with the Los Angeles Police Department (Detective David Peteque) executed a search warrant at Tim Martinez’s home in Bakersfield and recovered some ammunition and several firearms, including a .357-caliber revolver and some rifles. He also found some apparently gang-related items, including a baseball cap with the letter “B” and another with the letters “SF.” Martinez was arrested as he pulled into the driveway, and Detective Peteque found a .380 semiautomatic handgun in the glove compartment.
Similar baseball caps with the letter “B” were recovered from searches at Galeano’s and Aguilar’s homes.
As part of the police investigation, Reynozo identified Galeano and Ursua as the two who had started the fight at the party and identified Diaz as the shooter. Martinez and several others also identified Diaz as the shooter.
Diaz gave a statement to police in which he admitted belonging to a “familia crew” and Mexican gang known as “Brown and Down Familia,” also called the Bad Ones. He identified Martinez, Ursua, Galeano, Villareal (one of the victims) and others as members. On the night of the party, he told Detective Peteque, he was only with his girlfriend (Darlene Acedo) and Martinez (his best friend). He denied being in a fight and denied carrying, shooting or seeing a gun that night. Detective Peteque advised Diaz (16 at the time of the shooting) that he had been charged as an adult with double murder. Diaz again stated: “I never had a gun.” If anyone said he did, he said his response would be: “Bullshit lies.”
Diaz was charged with two counts of first degree murder, with special allegations he had personally used a firearm, that he had committed his crimes for the benefit of a gang and that he had committed multiple murders.
At trial, the People presented evidence of the facts summarized above. Diaz’s “best friend” Tim Martinez testified that he and Diaz were “like brothers.” At the time of the fight, Diaz drew a gun from his waistband but dropped it on the floor. He bent over, picked up the gun, grabbed it with two hands, held it at chest level with his arms outstretched, pointed it toward the “aggressor” in the fight and fired two shots.
After maintaining that Diaz had been the only one with a gun in earlier statements to police and his own admission in juvenile court that he had been an accomplice after the fact, Martinez said for the first time that the “aggressor” was “pointing a gun right back at us.” Martinez “just blurted it out” that there had been another gun. After speaking with his mother, Martinez said he had been “lying, that there was no other weapon.” Diaz himself later testified that Martinez was “incorrect”—no weapon was ever pointed at Diaz.
Cazares did not want to testify at trial and “fear[ed] for [her] life” because she had been threatened by Bad Ones gang member Byron Gonzalez. She had moved out of Los Angeles County for a period of months and although she returned, she remained afraid.
She acknowledged that earlier statements to police and at the preliminary hearing had been truthful.
Officer Efren Gutierrez and Detective Mario Santano testified as gang experts. The Bad Ones started with a group of about 15 during the 2003-2004 school year. The name derived from the BAD acronym signifying “Brown and Down.” They wore Boston Red Sox baseball caps with the letter “B.” The Bad Ones were trying to “clique up” with San Fer. To join a gang like San Fer, one could “put in work” to prove himself and establish a reputation by committing crimes for the gang. The San Fer gang often wore San Francisco 49ers apparel with the “SF” logo. It was common for prospective San Fer members to start as tagging or party crews that committed crimes individually or as groups and then be jumped in.
At the time of trial, Diaz had two San Fer tattoos on the right and left sides of his head. A person who was not a member of the San Fer gang would be jeopardizing his own safety in territory claimed by rivals if he had such tattoo. Presented with hypotheticals based on the facts of this case, both testified these crimes were committed for the benefit of the San Fer gang.
Diaz testified in his own defense as follows: He joined the Bad Ones when he was 14. He had good friends in the gang and thought it was where he belonged. He dropped out of school in 10th grade but had some additional schooling in juvenile hall. After joining the gang, he drank beer and smoked marijuana and methamphetamine. He did so on the night of the party.
That night, he decided to join the fight to help his friends. Then he tried to leave but saw that his gun had fallen out of his waistband. He bent down to pick it up and bumped heads with Martinez as he picked up the gun. He saw his friend Villareal fighting with Vasquez. He said he saw Vasquez “going for his waistband.” Vasquez lifted his shirt “just a little bit, but . . . enough to where I seen him reach for the butt of a gun.” He aimed his gun at Vasquez and fired twice because, he said, he thought his friend Villareal “was going to be shot.”
He said he had concealed his gun behind his belt buckle, and the person searching people at the party missed it. According to other witnesses’ testimony, the group of 10 to 15 guys that included several wearing baseball hats with the letter “B” on them pushed around the front and refused to be searched, claiming they had already been searched earlier.
Villareal’s sister-in-law (Eunice Silva) had testified previously that the “larger man” (Vasquez) lifted his shirt to expose a tattoo which she interpreted as “representing” membership in a gang.
He had a “Brown and Down” tattoo on his head at the time of the shooting; he said he got his San Fer tattoo in jail before trial because there had been riots there and he felt the tattoo would earn him respect and protection inside the jail. He said he had lied to police because he was “scared for what was going to happen to me” and felt “stupid” for shooting his own friend.
The jury found Diaz guilty as charged. The trial court sentenced Diaz to consecutive terms of life without the possibility of parole on the two first degree murder counts, plus consecutive terms of 25 years to life for the personal firearm use findings as to both counts. The court struck the imposition of sentence for the gang allegations.
Diaz appeals.
DISCUSSION
I. Diaz Has Failed to Demonstrate Error in the Trial Court’s Admission of Gang Expert Testimony.
According to Diaz, the trial court erred in allowing the prosecutor to present the gang experts with a hypothetical based on the facts of the case and then ask their opinion whether the two victims “were shot at for the benefit of, at the promotion of, or in association with the San Fer gang?” We disagree.
It is well established that such testimony is admissible even though it encompasses an ultimate issue in the case. (See People v. Killibrew (2002) 103 Cal.App.4th 644, 657.) Our Supreme Court has expressly held that a gang expert’s opinion is properly premised on the “basis of facts given ‘in a hypothetical question that asks the expert to assume their truth,’” so long as the question is “rooted in facts shown by the evidence.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Moreover, Diaz’s argument that there was ample evidence from other witnesses from which the jury could have reached the same conclusion on its own establishes that even if it had been error to allow the expert testimony (which it was not), he could not have been prejudiced.
II. Substantial Evidence Supports Diaz’s First Degree Murder Convictions.
Diaz’s argument that he should have been found guilty of second degree murder and not first degree murder ignores the evidence. “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
Diaz admitted he brought a loaded gun to the party and hid it from the security at the party. He and his friends initially left and came back with two additional carloads of Bad Ones. He and his friends took offense when they believed one of the “deejays” had been “maddogging” them and one of his fellow gang members started the fight that preceded the shooting. Multiple witnesses described how Diaz and his friends made it known they were with the Bad Ones and also called out “San Fer” during the party and again after the shooting. The evidence was that the Bad Ones aspired to join up with San Fer and, after killing two people, Diaz in fact got San Fer tattoos.
Further, multiple witnesses including his own best friend detailed how Diaz drew a gun from his waist, dropped the gun to the ground, picked it back up, held it with two hands, raised it to chest level with his arms outstretched in front of his body, pointed it toward the music booth (by his own admission, directly at Vasquez) and fired at least two shots. On this evidence, a rational trier of fact could conclude that before shooting, Diaz had made a cold and calculated decision to take Vasquez’s life (and, as a result, Villareal’s as well). The jury plainly rejected Diaz’s contrary version(s) and concluded that the murders were willful, deliberate and premeditated killings. On this record, Diaz’s first degree murder convictions were supported by substantial evidence, and his argument that his crimes amounted to second degree murder is an improper request that we reweigh the evidence. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
III. As the People Concede, the Abstract of Judgment Should Be Corrected to Strike the Parole Revocation Fine.
At sentencing, the trial court recognized that imposition of a parole revocation fine was inappropriate as Diaz’s sentence did not allow for a period of parole. (See People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687.) Nevertheless the abstract of judgment reflects such a fine. Diaz argues, the People concede and we agree that the abstract of judgment must be corrected to strike this Penal Code section 1202.45 fine.
DISPOSITION
The judgment is modified to strike the parole revocation fine. As modified, the judgment is affirmed. The matter is remanded to the trial court with instructions to the clerk to prepare a corrected abstract of judgment deleting the parole revocation fine and to forward the corrected abstract of judgment to the Department of Corrections.
We concur:PERLUSS, P.J. ZELON, J.