Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB053198 Bryan Foster, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Alfred Ray Rodriguez.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant Benjamin Hernandez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendants Alfred Ray Rodriguez (Rodriguez) and Benjamin Hernandez (Benjamin) appeal from their convictions of second degree murder (Pen. Code, § 187, subd. (a)). Both defendants contend the evidence was insufficient to show they aided and abetted a codefendant in killing the victim.
To avoid confusion because of shared last names, we will refer to defendant Benjamin Hernandez, the victim Jerry Ramirez, and some witnesses by their first names. Because codefendants Edward Vincent Hernandez and Edward Hernandez, Sr., share both first and last names, we will refer to them as Vinny and Edward, respectively.
All further statutory references are to the Penal Code.
Rodriguez, Benjamin, and codefendants Vinny and Edward were all charged with first degree murder and conspiracy to commit murder with various weapon use allegations. Vinny’s trial was severed from that of the others. The jury was unable to reach a verdict on the murder charge as to Edward and a mistrial was declared as to him.
The jury also found true the allegation that Benjamin used a deadly weapon, a shovel, in the commission of the murder (§ 12022, subd. (b)(1)). Benjamin contends that finding was not supported by substantial evidence, and the one-year sentence enhancement for weapon use must therefore be stricken.
We find no error, and we affirm the judgments.
II. FACTS AND PROCEDURAL BACKGROUND
Tina Lopez testified that she had spent the night of November 17, 2005, with Jerry Ramirez (Jerry), her boyfriend, at a motel. Tina telephoned her father, Benjamin, and asked for a ride. Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked her and Jerry up. No one seemed tense or angry.
The group went to the home of Tina’s aunt, where Jerry’s brother, Eric Ramirez, lived. Eric testified he had been keeping a.22-caliber semiautomatic and a.22-caliber revolver, as well as a.25-caliber clip, for Jerry. Eric retrieved the guns and gave them to Jerry; Jerry unloaded the guns and gave them and the clip to Vinny, who owned one of the guns. Tina’s aunt testified that about a year earlier, there had been problems between Vinny and Jerry.
The group then proceeded to a house on East Pumalo Street (the Pumalo house) where other extended family members lived. Tina’s mother, Stella Lopez; Tina’s aunt and uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the Pumalo house. Tina bickered with Benjamin while Rodriguez, Vinny, and Jerry were outside. Tina heard “loudness” in the backyard, and Benjamin went outside. Benjamin told Tina to stay in the house and told Stella to keep her there.
Curtis Hawkins, who lived behind the Pumalo house, heard a commotion. Through his bathroom window, he saw several men, including all four defendants, surrounding Jerry on the ground near the carport. Jerry was trying to escape but the others were blocking him. Hawkins heard Benjamin say, “You been fucking with my family. I’m going to kill you.” Benjamin hit Jerry with a pointed edge shovel about 20 times in the head and torso while Jerry cried and pleaded for him to stop. Hawkins saw a pool of blood form around Jerry’s head, and he heard Benjamin say, “Hurry up. Get my gun.” Hawkins also heard someone say to get blankets. Vinny and Rodriguez rolled Jerry’s motionless body up in blankets. Vinny backed a car up the driveway into the carport, and Vinny and Rodriguez loaded Jerry into the trunk and drove off. Hawkins then saw Edward put some dirt over the blood and hose down the driveway and a car in the carport. A few minutes later, Hawkins heard Benjamin say to his daughter and another woman, “The same thing may happen to you.” Hawkins did not contact the police because he feared for his own safety.
Another next-door neighbor, Vivian Jackson, heard screams. Jackson looked through the chain-link fence to see Vinny beat a man on the ground with a shovel at least five times, while three or four other men beat, stomped, and kicked the victim. She could see blood on the ground. She heard the man she identified as Vinny say, “I told you not to play with me, ” and she heard the victim screaming “no.” Jackson then walked away. Fifteen or 20 minutes later, she saw Edward hosing down what looked like blood from the carport area.
Although Jackson testified that the man with the shovel was Vinny, she had identified a photograph of Benjamin as the man who had used the shovel.
Alberta Hechtl, a security guard at a credit union adjacent to the Pumalo house, heard yelling, and although her view was partially obstructed, she saw an object like a shovel being driven up and down while a man screamed. She heard a woman yelling “leave him alone, ” and a man reply, “Get in the house.”
Tina told a detective and testified at the preliminary hearing that Benjamin came back inside and yelled to Vinny and Rodriguez to “[g]et him out of here” or to “[g]et rid of him.” She then saw Vinny and Rodriguez push Jerry into the car, and she saw Vinny driving the car away.
Deputy Mark Addy of the San Bernardino County Sheriff’s Department responded to a report of a domestic disturbance at the Pumalo house. He observed that Benjamin had what appeared to be fresh blood on his T-shirt and a fresh laceration above his eye. The deputy also saw someone washing a car in the carport.
Jerry’s body was discovered in a ravine in Waterman Canyon on November 20, 2005. He had suffered numerous blunt and sharp force injuries, including defensive wounds on his arms, but the cause of death was seven close-range gunshot wounds to the head. Some of the blunt-force injuries on his back and buttocks area were consistent with kicking. The seven bullets were all.25-caliber and could only have been fired from a.25-caliber weapon.
Neither a gun nor the shovel was ever found.
The jury found Benjamin and Rodriguez guilty of second degree murder. (§ 187, subd. (a).) The jury also found that Benjamin had used a deadly weapon, a shovel, in the commission of the crime. (§ 12022, subd. (b)(1).) The trial court sentenced Benjamin to 15 years to life in prison and imposed a consecutive one-year enhancement for the weapon use. The trial court sentenced Rodriguez to 15 years to life in prison.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
Sufficiency of Evidence of Murder
Both Benjamin and Rodriguez challenge the sufficiency of the evidence to support their convictions of second degree murder.
Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, this court determines whether, after examining the entire record in the light most favorable to the judgment below, and presuming in support of the judgment the existence of every fact that can reasonably be deduced from the evidence, there is substantial evidence from which the trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576.)
Analysis
A person who is not the actual perpetrator of a crime may be liable for the crime as an aider and abettor. (§ 31; People v. Beeman (1984) 35 Cal.3d 547, 560.) Section 31 defines principals to include, “All persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, ...” Some factors relevant to a determination whether a defendant is guilty as an aider and abettor include the defendant’s “‘presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Benjamin’s liability
Benjamin contends it was “fairly obvious” from the evidence that Vinny, either alone or with Rodriguez, took Jerry to the Waterman Canyon area, shot him at or near that area, and then dumped the body there. Benjamin did not go with Vinny when Jerry was taken away. The medical evidence showed Jerry died shortly before his body was dumped, and he was alive when placed in the trunk of the car and just before being shot. Thus, Benjamin argues, the evidence was insufficient to establish his liability as an aider and abettor.
Even though no evidence showed Benjamin was present when the shooting took place, liability as an aider and abettor does not require the defendant’s actual physical presence. (See People v. Pelayo (1999) 69 Cal.App.4th 115, 121; People v. Lopez (1981) 116 Cal.App.3d 882, 885-886.) For example, in People v. Bohmer (1975) 46 Cal.App.3d 185, the defendant was convicted as an aider and abettor of the crime of obstructing a railroad track based on inflammatory speeches he had made at a gathering of war protestors immediately before a train arrived, even though he did not physically participate in the obstruction. (Id. at p. 199-200.) The court explained, “It was necessary to present substantial evidence that Bohmer shared the criminal intent of those who, by physical acts placed obstacles on the railroad tracks. [Citation.] There is abundant and substantial evidence that Bohmer shared that intent, and by his speech intended to and did encourage the placing of such obstacles by those who did place them.” (Id. at p. 199.)
Here, Tina told a detective she heard Benjamin yell something like, “Get rid of him, ” after she heard the commotion in the backyard. Hawkins, a neighbor, heard Benjamin say, “You been fucking with my family. I’m going to kill you, ” during the commotion. Benjamin struck Jerry up to 20 times in the head and torso with a metal “pointed edge” shovel. When Jerry was lying motionless on the ground with a pool of blood around his head, Hawkins heard Benjamin say, “Get my gun.” Someone then yelled for blankets, and Vinny and Rodriguez wrapped Jerry, including his head, in blankets and tossed him into the trunk of a car, which Vinny then drove away.
Considering all the circumstances, the jury could reasonably have determined that Benjamin’s statements were verbal encouragements of or instigations to the murder. We conclude the evidence overwhelmingly established Benjamin’s liability as an aider and abettor of the murder. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 7-12).
Rodriguez’s liability
Rodriguez also contends the evidence was insufficient to establish that he aided and abetted in the murder of Jerry.
As Rodriguez concedes, the evidence was uncontested that he was present at the backyard of the Pumalo house during the assault on Jerry. Rodriguez asserts that Hawkins testified that only Benjamin was assaulting Jerry. However, Hawkins testified that Benjamin was striking Jerry with a shovel while the others surrounded Jerry and blocked him from escaping. Moreover, Jackson testified that all the men surrounding Jerry were beating, stomping, and kicking him. Some of the wounds on Jerry’s body were consistent with kicking.
The evidence showed, moreover, that Rodriguez helped load the motionless and bleeding Jerry, wrapped in blankets, into the trunk of Vinny’s car and then rode away with Vinny. Jerry’s body was found in a remote area, and the evidence showed that two people had carried the body along a path and had thrown it down a hill.
Rodriguez notes that at trial, Hawkins could not remember who had wrapped Jerry and put him in the trunk. However, at the preliminary hearing, Hawkins testified that Vinny and Rodriguez had done so, and the two of them had driven away. After his memory was refreshed with the preliminary hearing transcript, Hawkins testified to the same effect at trial.
Rodriguez contends that even if he had helped place Jerry in the vehicle, there was no evidence he knew Jerry was to be killed or that he participated in killing Jerry. The evidence that Rodriguez and Vinny wrapped Jerry, who was motionless and bleeding, in blankets and threw him into the trunk supports a reasonable-even compelling-inference that Rodriguez both knew and intended that Jerry would not be returning alive.
Rodriguez argues that the jury rejected first degree murder and therefore rejected the notion that Benjamin’s statements about killing Jerry constituted premeditation and deliberation. Rodriguez also argues that the jury’s rejection of conspiracy made it unlikely the jury considered Benjamin’s statements as evidence of Rodriguez’s guilt. Rodriguez also makes much of the fact that the jury found not true the allegation that Rodriguez knew a principal was armed with a firearm and found him not guilty of conspiracy However, a defendant “‘may aid or abet in the commission of a crime without having previously entered into a conspiracy to commit it.’” (People v. Durham (1969) 70 Cal.2d 171, 181 & fn. 8.) Moreover, even if the verdict is apparently inconsistent with verdicts or findings as to other counts or enhancements, we uphold the verdict if substantial evidence supports it. (People v. Lewis (2001) 25 Cal.4th 610, 655-656 [verdict that was arguably inconsistent with other verdicts was sustained because it was supported by substantial evidence]; People v. Lopez (1982) 131 Cal.App.3d 565, 569-571 [seeming inconsistency in not true finding on personal firearm use enhancement did not justify reversal when evidence was sufficient to establish the defendant’s guilt of assault with a deadly weapon].)
Rodriguez further argues that no evidence supported the prosecutor’s argument that disposing of the body in the canyon must have required more than one person. Rodriguez fails to set forth all of the relevant evidence. Based on his objective findings and his experience and training, Detective Gary Schuelke stated his opinion that the body had been carried by two people and had then been thrown down into a boulder area. Detective Gary Schuelke testified there were no drag marks on the dirt path, blood droplets were spread out evenly along the path, and it did not appear Jerry had been shot at the site where the body was found. He testified that “the way that the body was lying indicated that two individuals stood facing each other and threw the body down the hill lengthwise, and he landed in the position that he was in.” The jury apparently accepted Detective Schuelke’s opinion, and it is not our function to reweigh that testimony on appeal. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We conclude that the evidence overwhelmingly supports the jury’s reasonable determination that Rodriguez was guilty of second degree murder. (See People v. Avila (2006) 38 Cal.4th 491, 564.)
Sufficiency of Evidence of Weapon Use
The jury found true the allegation that Benjamin personally used a deadly weapon, a shovel, in the murder, and the trial court imposed a one-year enhancement for the weapon use. Benjamin now contends the evidence was insufficient to show that the shovel was used in the commission of the murder.
To find true the allegation of use of a deadly or dangerous weapon under section 12022, subdivision (b)(1), the “fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]” (People v. Wims (1995) 10 Cal.4th 293, 302, impliedly overruled on another ground by People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) It is not necessary, however, for the People to prove that the deadly or dangerous weapon was the actual instrumentality that caused the victim’s death. In People v. Lerma (1996) 42 Cal.App.4th 1221, the defendant stabbed and kicked the victim, who died as a result of blunt trauma to the head. Although the coroner testified that the knife wounds were not life threatening (id. at p. 1224), the court upheld the finding that the defendant had used a knife during the murder, reasoning that the knife had been instrumental to the murder and had been “used to advantage.” (Id. at p. 1226.)
Here, likewise, the shovel was “used to advantage” in committing the murder. By the time Jerry was loaded into the trunk of a car, rolled up completely in blankets, he was bleeding and motionless. The jury could reasonably find the shovel had been used to render him helpless so he could be transported to a less public location before being killed. We therefore conclude substantial evidence supports the true finding on the weapon use allegation.
IV. DISPOSITION
The judgments are affirmed.
We concur: MCKINSTER J. MILLER J.
Vinny and Edward were subsequently tried together. Vinny was found guilty of first degree murder and conspiracy to commit murder (§§ 187, subd. (a), 182, subd. (a)(1)), and the jury found true firearm use allegations as to him under section 12022.53, subdivisions (b), (c), and (d). The jury was again unable to reach a verdict as to the murder charge against Edward, and another mistrial was declared. Edward thereafter entered a plea of guilty to acting as an accessory to a felony (§ 32), and the murder charge against him was dismissed. Edward and Vinny have separately appealed in case No. 47603.
On our own motion, we previously consolidated case Nos. 46636 and 47603 for purposes of filing one respondent’s brief, oral argument, and decision. Subsequently, we severed the appeals.