Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 74439
Marchiano, P.J
D.V. appeals from the dispositional order committing him to the Division of Juvenile Facilities after he was found to have committed murder (Pen. Code, § 187), with use of a firearm (Pen. Code, § 122022.53, subd. (e)(1)), for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). D.V. contends that the murder finding was not supported by substantial evidence. We conclude that his argument lacks merit and affirm the dispositional order.
I. BACKGROUND
A. General
Aide Romero slept in an apartment on Poplar in Redwood City on the morning of July 12, 2005, after using methamphetamine all day the day before. Romero was a Sureño gang associate, and the Poplar apartment was a Sureño gang hangout. She went there with her boyfriend, 20-year-old Faustino Ayala, a Sureño. She was at the apartment around 1:00 p.m. on July 12 when E.A. drove up in a car with D.V., J.O., and J.O.’s brother, who was nicknamed Ojitos. E.A, J.O., and Ojitos were 14 years old; it is unclear from the record whether D.V. was 14 or 15 years old. The car was blue, the Sureño color, and Romero testified that the four youths were Sureño “wannabes” who were trying to get into the gang. E.A. told her that he had just bought the car from a friend for $200, and that it did not work in reverse. The car had to be pushed backward out of the driveway when Ayala drove off in it with the four youths around 2:00 p.m.
Romero testified that before the blue car left someone told her, “we got into it with some Norteños.” She first said that she did not remember who made the statement “because they were talking all at the same time.” She later attributed the statement to E.A., and later said they were “all talking” about having gotten into it with “some chepetes,” a derogatory term for Norteños. Romero testified that she asked E.A., D.V., and J.O. for a ride home, but they said they had to take care of some business, what they called “jale.” E.A. said they wanted to go back to Fairoaks, a Norteño neighborhood two or three miles from Poplar, to take care of some business other people had started. Romero testified that E.A., D.V., J.O., and Ojitos asked Ayala to come with them on this business and said to him, “don’t let us down.” She later said that J.O. was at the car, 15 feet away from the conversation when the “don’t let us down” statement was made, and later said that D.V. might also have been at the car, and later said that she could not remember who had made the statement. Ayala agreed to come along and volunteered to drive.
Elizabeth Casillas was also at the Poplar apartment on July 12, 2005, and saw E.A., D.V., J.O., and Ojitos ride off in a big blue car after it was pushed backward out of the driveway. She heard E.A. and Ojitos talk before they left about going to “kick it,” which meant just hanging out some place.
A neighbor on Poplar was outside his home around 1:30 or 2:00 p.m. on July 12, and noticed a blue car pass by three times in the span of five minutes. There appeared to be only one person in the car when it first passed by. The car was going only 10 miles per hour and the driver was looking on both sides of the street. The car passed by again about a minute later going in the opposite direction, and again three or four minutes later going in the original direction. When the car passed by the third time, the neighbor saw five people inside, one of whom was wearing “a white rag or something on their head.” Seconds later, he heard a shot and screaming from up the street where the car had been headed. He walked out to the front of his yard and saw the tail end of the blue car “swooping around.” He later saw a body in a driveway across the street.
The body was that of 21-year-old Francisco Rodriquez, who resided with his wife Maria and three children in an apartment complex next to Poplar. Rodriquez’s brother-in-law, Richard Padilla, testified that he and Rodriquez were talking with Rodriquez’s coworker Jose Navarette at a carport on Poplar when a car “crept by” on the street. Padilla said that when Rodriquez saw the car pass by he expected trouble. Rodriquez referred to the people in the car as fools and “scraps,” a derogatory term for Sureños, and assumed that “a fight or something” was going to happen. Navarette testified that the car came by again and stopped, and a passenger in the back seat got out with his face and head covered and reached for something by his waist. Rodriquez, Navarette, and Padilla turned and ran, and Rodriguez was killed by a gunshot to the back of the head. A few seconds after the shot was fired, Navarette heard a car door slam and saw the car speed away.
A knife from Rodriquez’s kitchen was found near his body. Maria Rodriguez testified that Rodriguez went into their kitchen a few minutes before the shooting, but she and Padilla denied seeing him with a knife before he was killed. Navarette could not remember Rodriguez doing anything to provoke the occupants of the vehicle, and Padilla denied that any such provocation occurred.
Rodriguez had Norteño gang tattoos, and had been identified by the police as a Norteño gang member when he was arrested in 2001 at a place associated with Norteños. Maria Rodriguez testified that Rodriquez had been a gang member, but that he had promised her before they were married, three and one-half years before he was killed, that he would stop all gang activity. She said that he had kept that promise as far as she knew. She said that Rodriguez rarely wore red, the color identified with Norteños, but when police searched their apartment after the shooting they found that most of his clothes were red. They also found a photo of Rodriguez on the refrigerator wearing a red shirt with a big letter “N” in the middle. Redwood City Police Officer Russell Felker, who investigated the shooting and testified as an expert on gang aspects of the case, opined that Rodriguez was an inactive member of the Norteño gang when he was shot. Felker opined that the small amount of red color in the shoes Rodriguez wore when he was killed would have been sufficient to provoke a violent response from rival Sureño gang members.
Juan Ortega testified that D.V. phoned him at home on the evening of July 12 and asked him to hide something as a favor. Ortega testified that he was a member of the CXLS Sureño gang, and that he had been present when D.V. was jumped in as a member of that gang. Ortega and D.V. arranged to meet near Ortega’s house, and D.V. rode up in the blue car with E.A., Ojitos, and Ayala. When Ortega got in the car, D.V. told him that Ojitos had killed a Norteño, and gave him two guns and some bullets. Several weeks earlier, D.V. had shown the guns to Ortega at D.V.’s home, said that the guns belonged to a friend, and explained that he had the guns for protection from Norteños. Ortega hid the guns in his home, and the guns were recovered by the police in a search the next day. Based on a bullet casing found at the scene of the shooting, one of the guns was determined to be the murder weapon.
On the night of July 12, the police contacted J.O. and D.V. at their homes, they agreed to give statements, and were interviewed at the Redwood City Police Department. Around 2:00 a.m. on the morning of July 13, 2005, E.A., Ojitos, and Ayala were pulled over in the blue car and detained by a Half Moon Bay police officer. Redwood City officers arrived and arrested E.A., Ojitos, and Ayala based on the statements given by J.O., D.V., and others. They were taken to Redwood City Police Department, where E.A. was interviewed.
The statements given by J.O., D.V., and E.A. were admitted into evidence against them in their respective cases.
In a search of the blue car on July 13, police found a blue baseball bat with the letters “SUR” carved into it in the backseat, and a “carpenter’s hull,” [sic] described in the testimony as a metal “stabbing instrument,” on the front passenger door armrest.
Ojitos was charged with murder as an adult. His murder trial and that of Ayala were pending when the case at bench was tried.
Officer Felker had spent the last two and one-half years of his six years on the Redwood City police force on the street crime suppression team, which worked on gang-related matters. He had daily contact with gang members, and had been involved in a few hundred gang-related investigations. He knew about 35 members of the Sureño gang in Redwood City, which is broken down into cliques or subsets called the Carnales Locos Sureños (CXLS), the Barrio Locos Sureños (BLS), the Pine Street Familia Sur (PFS), and the Coastside Locos. He said that the names of the subsets changed over time, but “it’s all the same group.”
Felker called members of the subsets “Redwood City Sureños,” an “umbrella” term for Sureño gang members based in the city, all of whom, according to Felker, “interact with one another freely” and are “loyal to one another within the Sureño framework.” While the terms “RWC Sureños” appeared in gang graffiti, members do not typically claim to be “Redwood City Sureños” or members of particular subsets; they generally identify themselves simply as “Sureño or Sur.” Sureños subsets “ebb and flow,” particularly in a place like Redwood City, where Sureños are greatly outnumbered by rival Norteños and have “no set boundaries.” To increase their numbers and strength, Sureños in Redwood City enlist each other and Sureños from other cities to commit crimes and band against the Norteños.
Felker identified three active members of the Sureños in Redwood City who had been convicted of criminal street gang activity under Penal Code section 186.22, and outlined the circumstances of two of those offenses. On April 20, 2004, three Sureño gang members, Juan Ortiz, Pedro Gonzalez, and Marco Rodriguez exchanged gang insults (“scrap,” “chapete”) with a Norteño in Redwood City, the Norteño attempted to flee, his path was blocked by Gonzalez and Rodriguez, and Ortiz hit him in the leg and back with a baseball bat. Ortiz was convicted of assault (Pen. Code, § 245, subd. (a)(1)) and participation in a gang (Pen. Code, § 186.22, subd. (a)). On July 24, 2004, Juan Romero “approached the victim asking him what he claim[ed], . . . a term of a challenge before [an] assault. The victim said that he didn’t claim and was then . . . chased by Romero, who was brandishing a firearm.” Romero was convicted of making a criminal threat (Pen. Code, § 422) and gang participation (Pen. Code, § 186.22, subd. (a)).
Based on his personal investigations and on police reports, Felker identified the following crimes as primary activities of Sureños in Redwood City: murder (Pen. Code, § 187); attempted murder (Pen. Code, §§ 187, 664); assault with a deadly weapon (Pen. Code, § 245); burglary (Pen. Code, § 460); robbery (Pen. Code, § 211); vehicle theft (Veh. Code, § 10851); terrorist threats (Pen. Code, § 422); witness intimidation (Pen. Code, § 136.1); drug sales (Health & Saf. Code, §§ 11351, 11355, 11378); and vandalism (Pen. Code, § 594). Felker did not have statistics showing the number of times these crimes had been prosecuted. Felker had, however, investigated “hundreds” of incidents of violence between Norteños and Sureños in his six years as a Redwood City police officer, and knew of five or six such incidents when people were killed.
Felker opined that Ayala, Ojitos, E.A., D.V., and J.O. were all active Sureño gang members. He regarded gang associates and wannabes as gang members. “Either you . . . hang around, associate, participate, or you don’t,” he explained, “It’s that simple.” In his experience, people were not allowed to hang out with gang members unless they were members themselves.
In support of his opinion as to E.A., Felker cited incidents in June 2004, March 2005, and April 2005 when E.A. was attacked by, or fought with, Norteños, and a May 2005 letter from the assistant principal at the school where two of the incidents occurred documenting E.A.’s identification with “the blue gang” and “constant” gang-related behavior. Felker’s opinion as to D.V. was based, among other things, on D.V.’s “admitted association” with the Sureño gang, and Ortega’s testimony. As for J.O., he had, in May 2005, been caught writing Sureño graffiti, fought with Norteños, and admitted to police that he was an active Sureño.
Felker testified that, in gang culture, respect is synonymous with fear, and that gang members commit crimes to increase their stature in the gang. “Taking care of business” in the gang context means doing a violent act. Violent crimes committed by gang members benefit the gang by instilling fear within the neighborhood where the gang is active, and showing rival gang members who controls the area. Gang members taking care of business will tell each other if they are carrying a gun.
Felker described the killing of a rival gang member as the “ultimate” means of benefitting the gang. He opined that Rodriguez’s killing was “clearly nothing other than [a] gang-related” crime: an attack on a perceived Norteño rival that was done for the benefit of the Sureños. The calculated nature of the crime was evidenced by the car’s multiple approaches to the scene and the covering Ojitos put on his head.
Felker further opined that the Sureño gang was benefited by the actions of E.A., D.V., and J.O. in connection with the shooting. E.A., D.V., and J.O. provided a show of force that enabled the killing to occur. Gang members initiate confrontations only “when they outnumber somebody.” They have sufficient backup “99 percent of the time,” and would not let one of their own confront multiple perceived gang rivals without sufficient backup or weapons present.
Felker was asked to explain what transpires in a “generic gang-related drive-by shooting.” He said that there would be a designated driver and shooter, and that others in the vehicle would have the role of lookout or backup. Those providing backup would typically carry weapons such as firearms, knives, and baseball bats, and everyone in the car would know of the planned shooting.
B. Additional Background For D.V.
In his statement to the police, D.V. eventually admitted being in the car when the shooting occurred. He said there were four or five Norteños on Poplar with knives and bats following them and calling them scraps. E.A. got upset, someone in the car said, “Let’s do something,” and the driver turned the car around and parked it. Ojitos put something over his face, got out of the car, and fired a shot with what D.V. called a BB gun. He fired the shot because they had been disrespected. Ojitos got back into the car and they drove to a park. Ojitos said, “I think I hit him.”
II. DISCUSSION
D.V. argues that there was insufficient evidence to support the murder finding. When sufficiency of the evidence is questioned, we “review the whole record . . . 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.) We “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576.) The judgment must be affirmed unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [it].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Circumstantial evidence may suffice to provide proof of guilt beyond a reasonable doubt (People v. Bean (1988) 46 Cal.3d 919, 932), and the standards of substantial evidence review are the same in cases in which the People rely mainly on circumstantial evidence (People v. Stanley (1995) 10 Cal.4th 764, 792). The foregoing standards apply in juvenile proceedings (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605), and to gang enhancements (People v. Augborne (2002) 104 Cal.App.4th 362, 371).
It is not disputed that there was sufficient evidence to convict Ojitos of first degree murder. At issue is D.V.’s liability for the murder as an aider and abettor. “[A]n aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) “[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she 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.” (People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) Second, an aider and abettor is guilty not only of the intended crime, but also of “ ‘any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ ” (McCoy, supra, at p. 1117.)
Under the natural and probable consequences doctrine “an aider and abettor is liable vicariously for any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated by the perpetrator and the aider and abettor.” (People v. Woods (1992) 8 Cal.App.4th 1570, 1577.) To hold a defendant liable under the doctrine, the trier of fact must find that the defendant acted with “knowledge of the unlawful purpose of the perpetrator” and with “the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense,” and that the defendant “by act or advice aided, promoted, encouraged or instigated the commission of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 262 (Prettyman).) The trier of fact must also find that “the defendant’s confederate committed an offense other than the target crime,” and that “the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (Ibid., italics & fn. omitted.)
It is not disputed that murder is a natural and probable consequence of an assault with a deadly weapon. (Prettyman, supra, 14 Cal.4th at p. 262 [application of natural and probable consequences doctrine had “most commonly involved situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim”]; see, e.g., People v. Hoang (2006) 145 Cal.App.4th 264, 266-267 [aider and abettor of an assault with a deadly weapon by a gang member was liable for attempted premeditated murder]; People v. Laster (1997) 52 Cal.App.4th 1450, 1464.) Thus, D.V. could be found to have committed first degree murder if he shared Ojitos’s intent to commit that crime (Beeman, supra, 35 Cal.3d at p. 560), or if he merely intended to facilitate an assault with a firearm by Ojitos (Prettyman, supra, at p. 262). The prosecution proceeded under both theories in this case, but we need only address the assault theory to uphold the jurisdictional finding.
The evidence was sufficient here to support findings that D.V. knew of Ojitos’s intention to assault Rodriguez with a firearm, and intended to facilitate the commission of that assault. Viewed in the light most favorable to respondent, the evidence showed:
Shortly before the shooting occurred, D.V. and four other Sureños set out in a blue car E.A. supplied to take care of some unfinished business with Norteños, following an incident with members of that gang. Although it appeared from Romero’s testimony that E.A. was the primary instigator, she indicated at points in her testimony that Ojitos, D.V., and J.O., as well as E.A., talked about the confrontation and recruited Ayala to help them with their business. There were four weapons in the car, two guns supplied by D.V., a baseball bat, and a stabbing instrument. Thus, E.A., D.V., and J.O. were quite possibly armed with a weapon when the shooting occurred. Witnesses with Rodriguez denied that he did anything to provoke the shooting, but it was possible to find otherwise in view of the evidence that Rodriguez had called the occupants of the car “scraps,” assumed a fight was brewing, and armed himself with a knife, before he was killed. D.V. confirmed in his statement that the occupants of the car were threatened by armed Norteños. The car did not stop next to Rodriguez on the spur of the moment; it made one or two prior passes, and one of the occupants had his head covered during the final approach. Fourteen-year-old Ojitos got out of the car alone to approach three young adults, one of whom, an apparent rival gang member, was holding a knife.
While it might have been possible to find from the foregoing evidence that D.V. had no idea that Ojitos was armed, and no intention to encourage or promote the shooting, the circumstances suggested otherwise. D.V. and the others were armed and spoiling for a confrontation and Rodriguez provided a suitable target. Ojitos disguised himself before the shooting, and would have faced superior force had he gotten out of the car without a gun. It thus appears unlikely that those in the car would not have realized that Ojitos had the gun, or that the shooting was a spontaneous act on the part of Ojitos, unplanned and unanticipated by the others. Those inferences are especially strong as to D.V., who supplied the gun used in the shooting. As the prosecutor pointed out below, the People had a strong case against D.V. for aiding and abetting a murder entirely apart from Felker’s testimony.
Felker’s expert opinions strengthened the inferences of guilty knowledge and intent by putting the evidence in a gang context. Felker confirmed that “business” for a gang means violence. Wannabes like D.V. are motivated to commit crimes to gain stature in the gang, and the ultimate crime is the killing of a rival gang member. In a typical gang-related drive-by shooting passengers in the car would not just be along for the ride, they would serve as backups or lookouts. Gang members do not perpetrate assaults unless they possess superior force. E.A., D.V., and J.O. furnished a show of force that enabled the assault here. Felker’s testimony, as the prosecutor put it, “tie[d] everything together.”
D.V. likens his situation to that of the minor in In re Frank S. (2006) 141 Cal.App.4th 1192, 1195 (Frank S.), who was stopped while riding a bicycle and found in possession of a concealed knife, which he said he needed “for protection against ‘the Southerners’ because they fe[lt] he support[ed] northern street gangs.” The gang enhancement attached to the minor’s weapon offense was reversed, despite expert testimony that the knife “benefit[ed] Norteños since ‘it help[ed] provide them protection should they be assaulted by rival gang members.’ ” (Id. at p. 1199.) Because there was no evidence “that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense” (ibid.), the enhancement finding was tantamount to guilt by association (Id. at p. 1195). Apart from the testimony that D.V. once claimed to possess the murder weapon for protection against Norteños, the facts here are entirely unlike those in Frank S. D.V. had gang members with him when Rodriguez was killed, and had reason to expect that his gun would be used in the shooting.
D.V. cites People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez), where the defendant was convicted of possessing cocaine base for sale for the benefit of a gang, and the court in dictum observed that the gang expert’s testimony alone would have been insufficient to support a finding that the drug offense was gang related. Ferraez, like Frank S., is inapposite. The prosecution case here, like that in Ferraez, did not rest solely on expert testimony, and, as we have explained, there was considerable incriminating evidence against D.V. in addition to Felker’s opinions.
D.V. submits that the result here should be the same as that reached in Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (Mitchell). Defendant Mitchell was a passenger with fellow gang members in a car that ran over and killed Jerry “Judabean” Knox, a rival gang member. Judabean had been shot three times on two separate occasions by members of Mitchell’s gang, but the evidence showed that he was killed by the car and not by the gunshots. The second shooting left Judabean lying in the street, and the car was speeding away from the scene when it made a U-turn and drove over him. The issue was whether Mitchell could be found to have “instigated, encouraged or assisted the driver in crushing Judabean,” and thereby aided and abetted a murder. (Id. at p. 1342.) The court found “no such evidence,” noting: “There is no proof that the vehicle that killed Judabean was owned or provided by Mitchell for the purpose of doing the running over; there is no proof that Mitchell said anything to the driver of the vehicle in the minutes between the shooting and the fatal U-turn; in short, there is nothing at all to suggest that Mitchell helped bring about Judabean’s death, except perhaps by adding weight to the car that ran over Judabean’s body.” (Ibid.) The state’s argument to the contrary “smack[ed] of guilt by association.” (Ibid.)
Mitchell was overruled on another ground in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1248.
The decision in Mitchell is questionable and the case is distinguishable. As the dissent pointed out, the evidence supported an inference that Mitchell wanted to kill Judabean. (Mitchell, supra, 107 F.3d at p. 1343 (dis. opn. of Pregerson, J.).) That evidence included a fistfight between the two men, and Mitchell’s involvement in the shootings of Judabean, in the hours before the killing. “A rational jury could infer from th[e] evidence of Mitchell’s presence in the car and his animus toward [Judabean] that Mitchell encouraged the driver of the car to make a sudden U-turn and run over [Judabean].” (Ibid.) In any event, D.V. was not a passenger in a car that was speeding away from a crime scene; he was riding in one that was cruising slowly on the lookout for a confrontation. Moreover, D.V. provided the gun that killed Rodriguez.
The trial court had substantial evidence from which to find that D.V. committed murder.
III. CONCLUSION
The dispositional order is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.