Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB804072 Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All statutory references are to the Penal Code unless stated otherwise.
When he was 17 years old, defendant Joshua Zamora Gonzales participated in a gang-related shooting, involving three victims. After defendant was charged as an adult, a jury convicted him of three counts of attempted murder and one count of shooting from a motor vehicle. (§§ 664/187, 12034, subd. (c).) The jury also found true the allegations defendant personally and intentionally discharged a hand gun, causing great bodily injury on all four counts (§ 12022.53, subds. (b), (c), & (d)), and that he committed the crimes within the meaning of the gang enhancement statute. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced defendant to an aggregate prison term of 86 years eight months to life, consisting of an indeterminate term of 75 years to life and a determinate term of 11 years eight months.
At trial, defendant argued that he was not involved in the shooting. On appeal, defendant argues that he was not identified as the shooter or, in the alternative, that he acted in the heat of passion or in self-defense. In particular, defendant charges the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted voluntary manslaughter based on a theory of provocation or imperfect self-defense. Defendant also challenges the sufficiency of the evidence to support his convictions and the gang gun-use enhancements. After due consideration, we reject defendant’s contentions and affirm the judgment.
II
FACTUAL BACKGROUND
Defendant was a member of the Playboyz criminal street gang. On October 4, 2008, defendant and some other Playboyz gang members attended a party in Colton. Defendant wore a black shirt and a Pirates “P” baseball cap. The initial “P” also signifies the Playboyz gang. At the party, defendant introduced himself as “Knuckles.”
Anthony Santoscoy and Michael Santoscoy (Anthony and Michael) also attended the party in Colton with their brother, Richard, their cousin, and some friends, including two other brothers, Bryan Padilla and John Padilla (Bryan and John), Jose Arreola (Arreola), and Omar Vargas (Vargas).
At one point in the evening, there was some conflict with the Playboyz gang members which eventually subsided after Noberto Razo, a security guard, intervened. Anthony and Michael did not remember any problems at the party.
When the party ended shortly after midnight on October 5, 2008, the attendees left. Anthony was waiting on a street corner with Michael, Bryan, John, Arreola, and Vargas. As a black car drove by, a passenger in the back seat, wearing a baseball cap, nodded and stared in an unfriendly manner. Then the car stopped and reversed. The rear passenger asked the men on the corner, “Where are you from, ” referring to their gang affiliation. None of the men on the street had threatened the car occupants or committed any type of provocation.
A car occupant pulled out a gun and began shooting. When Anthony first saw the gun, he said, “[O]h, it’s going to be like that?” Anthony thought there could have been two or three guns. In particular, Anthony saw the backseat passenger point a gun from behind the driver. John told a police detective he saw the front passenger get out of the black car and fire a silver.22-caliber handgun over the car’s hood while another man fired from the rear driver’s side window. No one could identify the car occupants.
Anthony and Michael and their companions ran away, trying to escape as the gunshots continued. Vargas, Arreola, and Bryan were injured and Anthony helped drive them to the hospital.
Vargas was shot in the abdomen, the right thigh, and the right ankle. Vargas was hospitalized for 10 days and had surgery to remove part of his colon. Vargas suffered nerve damage and chronic pain and continued to experience trouble eating. Bryan was shot twice in the leg and once in the hip. Arreola was hospitalized overnight for injuries to his lower back, thigh, and knee.
The record does not establish how the police identified defendant as being involved in the shooting. The police apparently located defendant from a photograph on MySpace. On the morning of October 5, 2008, the police contacted defendant at his residence and, with the consent of defendant and his mother, defendant accompanied a detective to the police station. The police interviewed defendant beginning at 12:35 p.m., which was about 12 hours after the shooting.
Defendant claimed he left the party as a backseat passenger in a red Cadillac. He saw some men on the street “saying stuff, ” “talking shit, ” and “mad[-dogging] some other fool” when a car backed up toward them. Defendant exchanged some words with the men on the street, who began to approach the car he was in. Defendant heard shooting as the car he occupied drove away. Defendant thought the men on the street had guns and were firing at his car. Defendant denied that any shots were fired from his car.
The police detective pressed defendant, saying “even if somebody was shooting in the car–even if you had to defend yourself, we need to know.” Defendant responded, “I can’t snitch on no one.” Defendant elaborated: “[I]f I tell you like oh, it [the shooting] did come from the car. And then it’s going to be on me. And then if I like go back out there like I’m–I’m gonna get hit. You know what I’m saying? Like they’re going to kill me for telling you, oh, yeah, it came from our car.” The detective repeated his advice to defendant, “All you have to do is be honest and tell us what happened. If it was self-defense or anything like that, fine. That stuff happens.” Even after speaking on the telephone with his mother, defendant continued to deny that he participated in the shooting while simultaneously expressing his fear of retaliation.
During the interview, the detective performed a gunshot residue test on defendant. Defendant said that the last time he washed his hands since leaving the party was when he used the restroom before the interview. Defendant’s hands tested positive for gunshot residue. A police expert testified it was “unexpected, but not completely unreasonable” to have a positive test under those circumstances.
The police found blood spatter and two different types of shell casings–.32-caliber and.40-caliber–at the scene of the shooting. The police did not locate a gun matching the shell casings.
The prosecution presented an expert witness on gang evidence, as discussed more fully below.
III
VOLUNTARY MANSLAUGHTER INSTRUCTION
Defendant maintains the trial court erred by not giving an instruction sua sponte on attempted voluntary manslaughter, as a lesser included offense of attempted murder, based on the theory of heat of passion (CALCRIM No. 570) or imperfect self-defense (CALCRIM No. 571).
At the outset, we observe that defendant’s argument is based on mischaracterizing the evidence slightly. At several points in defendant’s brief, he describes his version of the facts as follows, “the victims were standing on a street corner shouting taunts at the passing cars. When [defendant’s] car passed by them, they shouted something about being from Los Angeles and lifted their shirts to reveal guns. The men rushed [defendant’s] car prompting the driver of [defendant’s] car to speed away.” This version of the facts was derived entirely from the recorded interview defendant gave to a police detective. But the pages cited in defendant’s brief do not include any statement indicating that the victims threatened defendant with guns. Instead, defendant told the detective that “those guys... [t]hey started saying stuff, ” “talking shit, ” “mad dawging, ” “banging on each other, ” and “[p]eople started shooting.” Defendant mentioned that “there was a couple holding their pants.” But it was the detective interviewing defendant who suggested, “them guys ran up to you and they were lifting their shirts and you thought they had guns.” Defendant did not say that the victims lifted their shirts and threatened him with guns although he did agree with the detective’s statement the victims had rushed his car and defendant believed they had guns. Defendant repeatedly and emphatically denied that either he or anyone in his car had fired a gun.
At trial, defendant based his defense on his contention that he did not commit any crime because he was not involved in shooting at the victims. For that reason, he expressly declined instruction on any lesser included offenses and the defense attorney argued to the jury that defendant had not been involved. On appeal, defendant changes his theory of defense and now argues that “[b]ased on the jury’s conclusion that the shots were fired from [defendant’s] car, the jury should have been instructed that the ensuing crime was attempted voluntary manslaughter if it believed the occupants of [defendant’s] car were acting in the heat of passion or perceived need for self-defense from threats of homicidal violence by rival gang members.”
We find there was insufficient evidence to justify the trial court giving the proposed instructions sua sponte: “‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The appellate court applies an independent standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Barton (1995) 12 Cal.4th 186, 199.) A defendant may lack malice and be guilty of voluntary manslaughter when the defendant acts in the heat of passion (§ 192, subd. (a)) or when defendant acts in imperfect self-defense, meaning the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. (People v. Blakeley (2000) 23 Cal.4th 82, 85, 87-88.)
For heat of passion to operate as a defense, “‘“[t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.’” ([People v. Manriquez (2005) 37 Cal.4th 547, ] 583.)” (People v. Butler (2009) 46 Cal.4th 847, 868-869.) Additionally, “‘[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” [Citation.]’” (Manriquez, at p. 584.)
Based on the foregoing circumstances, the court did not err by not giving a sua sponte instruction on heat of passion or imperfect self-defense: “[T]he obligation to instruct on lesser included offenses arises only if the evidence would justify a conviction of such offenses or if the theory the defendant presents to the jury involves such lesser offenses. [Citation.] [¶]... [¶] In summary, a trial court should instruct sua sponte that an honest but unreasonable belief rule in the need for self-defense negates the malice required for a conviction... in cases where there is more than minimal and insubstantial evidence of self-defense; the defendant is relying upon such a defense or the defense is not inconsistent with the defendant’s theory of the case; there is evidence to support a conviction of lesser included offenses;...” (People v. McKelvy (1987) 194 Cal.App.3d 694, 704.) There is no error when defendant completely denies complicity in a crime as he did in the present case. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)
Not only does defendant seek to assert an inconsistent defense on appeal but it is not reasonably probable the jury would have rendered a lesser verdict than attempted murder. (People v. Moye (2009) 47 Cal.4th 537, 557-558.) “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) In summary, defendant’s theory on appeal contradicts his theory at trial and the evidence of heat of passion or imperfect self-defense was “minimal and insubstantial, ” making it too slight to be considered sufficient. Therefore, we reject defendant’s claim of error based on the trial court not giving instructions based on CALCRIM Nos. 570 and 571.
IV
SUFFICIENCY OF EVIDENCE FOR DEFENDANT’S CONVICTIONS
Defendant challenges the sufficiency of the evidence against him for all four convictions because none of the witnesses who testified identified him as the shooter. He contends he was convicted based primarily on his admissions that he was a Playboyz gang member who attended the Colton party and he occupied a car which was driving by when the shooting occurred. We reject his challenge.
“On review of a claim of insufficient evidence, we ask ‘whether “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citation.]’ (People v. Maury (2003) 30 Cal.4th 342, 403, italics omitted.) The evidence upon which the judgment relies must be ‘reasonable, credible, and of solid value.’ (People v. Jones (1990) 51 Cal.3d 294, 314.) It is not our role to reweigh evidence or evaluate the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) When a verdict is supported by substantial evidence, we defer to the trial court’s findings.” (People v. King (2010) 183 Cal.App.4th 1281, 1320.)
Defendant attempts to evoke the corpus delicti rule in his favor. The corpus delicti of any crime is defined as the combination of (a) the fact of the injury, loss, or harm, and (b) the existence of a criminal agency as its cause. “In essence, ‘[t]he corpus delicti... consists of at least slight evidence that somebody committed a crime.’ (People v. Ochoa (1998) 19 Cal.4th 353, 450.)” (People v. Malfavon (2002) 102 Cal.App.4th 727, 734.) In a criminal prosecution, the corpus delicti of a crime “must be established independently of the extrajudicial statements, confessions or admissions of the defendant.” (People v. Towler (1982) 31 Cal.3d 105, 115.) Because a defendant’s identity is not an element of a crime, the corpus delicti rule does not preclude identity being established by a defendant’s statements alone. (Malfavon, at p. 734.) Therefore, the corpus delicti rule does not operate here in favor of defendant’s arguments. Instead, we conclude the record contains sufficient evidence to show the corpus delicti of defendant’s four crimes and to establish his identity as the shooter.
As to the fact of the injury and the existence of a criminal agency as its cause, it is undisputed that someone committed a crime by firing a gun from a car at the three wounded victims. The witnesses testified that the rear passenger in a moving car shot at them. Furthermore, although the victims could not identify defendant as the shooter, another witness, Yesenia, identified defendant as the person who introduced himself to her as “Knuckles” at the Colton party and who was dressed like a Playboyz gang member and associating with other gang members. In conjunction with Yesenia’s testimony are defendant’s admissions to the police that he attended the party, dressed as she described him, and that he was in a car, passing by a group of men on the street at the time of the shooting. The foregoing evidence, combined with defendant’s positive gunshot residue test, is sufficient to establish the corpus delicti of defendant’s four crimes and defendant’s identity as the shooter. Similarly, substantial evidence supports the jury’s finding that defendant was an occupant of the car from which the shots were fired. Sufficient evidence supports defendant’s three convictions for attempted murder and one conviction for shooting from a motor vehicle.
V
SUFFICIENCY OF EVIDENCE FOR GANG-RELATED GUN-USE ENHANCEMENTS
Defendant also challenges the sufficiency of the evidence to support the jury’s true findings as to the gang and firearm allegations (i.e., the § 186.22, subd. (b)(4) gang allegation and the § 12022.53, subd. (e)(1) gang and firearm allegations). Defendant acknowledges that the Playboyz gang is a criminal street gang with whom he associates. But he contends that, because the witnesses did not identify him, the evidence did not show he participated in the shooting for the benefit of, at the direction of, or in association with the gang, “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) We conclude sufficient evidence was presented to support the jury’s true findings on the gang gun-use enhancements.
The testimony of an expert may supply sufficient evidence that a crime was committed for the benefit of a criminal street gang with the requisite specific intent. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048, citing People v. Gardeley (1996) 14 Cal.4th 605, 617-620.) As the high court observed in Hernandez, at page 1049, “Evidence of the defendant’s gang affiliation–including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like–can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” Under Hernandez, gang evidence is therefore relevant to show intent for a defendant’s offenses, specifically to aid the jury in understanding the unique sociology and psychology that may lead members to commit crimes to support the gang and enhance their own status within the gang.
In the present case, defendant admitted being an active member of the Playboyz criminal street gang and being a passenger in the car as it drove by the victims. Officer Michael Collins (Collins), the prosecution’s gang expert, testified, based on a hypothetical, that defendant’s crimes were committed to benefit the Playboyz gang because a gang member must respond to a challenge by retaliating or risk losing respect for himself and the gang. The fear and respect that a gang engenders in a community allows it to operate more effectively in conducting its criminal enterprises. An individual who is willing to commit crimes openly for the gang increases the gang’s status, as well as his own stature and level of respect within the gang.
Defendant relies on the federal cases of Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, recognizing they are not binding but urging “[th]is Court to adopt the conclusions of these well-reasoned cases.” Recently, in People v. Albillar (2010) 51 Cal.4th 47, 64-65, our Supreme Court rejected Briceno and Garcia, citing People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354 and People v. Romero (2006) 140 Cal.App.4th 15, 19.) We must follow Albillar. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also relies on People v. Ramon (2009) 175 Cal.App.4th 843, 850. In Ramon, the appellate court found there was insufficient evidence to support a conclusion that the defendant was acting on behalf of his gang in possessing a stolen vehicle or a handgun, or that he committed the crimes with the specific intent to promote, further, or assist criminal conduct by gang members. (Id. at p. 851.) The appellate court characterized the gang expert’s testimony as mere speculation. Although the expert opined the defendant’s motive might have been to use the stolen vehicle and firearm in furtherance of gang crimes, there was no evidence to support that opinion. The expert did not testify that possessing stolen vehicles or handguns was one of the gang’s primary activities. The Ramon court noted its “analysis might be different if the expert’s opinion had included ‘possessing stolen vehicles’ as one of the activities of the gang.” (Id. at p. 853.)
In contrast, in this case, in addition to defendant’s acknowledgement that he was a gang member, the testimony of Collins, the gang expert, was corroborated by evidence of other crimes committed by the Playboyz gang and by defendant’s gang-related contacts with the police. Collins also testified that drive-by shooting was a primary crime of the Playboyz gang. (People v. Miranda (2011) 192 Cal.App.4th 398, 413.) In spite of the inability of the victims to identify defendant as the shooter, the testimony by Collins that defendant committed the crimes with the specific intent to promote, further, or assist criminal conduct by the gang was not speculation. Ramon does not mandate a reversal of the gang gun-use enhancement findings in this case.
Based on all the evidence, there was sufficient evidence to support the gang gun-use allegations, including sufficient evidence of the previously quoted statutorily required intent. (People v. Romero, supra, 140 Cal.App.4th at pp. 19-20; People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.)
VI
DISPOSITION
The trial court properly did not instruct the jury with CALCRIM Nos. 570 and 571. Sufficient evidence supports defendant’s convictions and the related enhancements. We affirm the judgment of the jury, convicting defendant of three counts of attempted murder and one count of shooting from a motor vehicle, including gang and gun-use enhancements.
We concur: Richli Acting P.J., Miller J.