Opinion
C052031
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. VALENTINO CHARLES AMAYA, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury found defendant Valentino Charles Amaya guilty of attempted murder (Pen. Code, §§ 187, 664) and willful discharge of a firearm at an occupied vehicle (§ 246), with true findings that he caused great bodily injury (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)(1)), and committed the offenses to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also found him guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to a determinate term of 15 years, followed by an indeterminate term of 25 years to life.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction of shooting an occupied vehicle and the jurys finding that he committed the shooting to benefit a criminal street gang. We shall affirm the judgment.
FACTUAL BACKGROUND
In 2005, Mario Lopez was a freshman at McClatchy High School. He and his friend Ruben Salas were members of the Surenos, an Hispanic street gang. Lopez knew that defendant was a member of the rival Norteno gang.
One night Lopez encountered defendant while driving alone and stopped at a stop light in Oak Park. Defendant "flipped off" Lopez and the two gang members exchanged "mugging" stares, an aggressive form of behavior connoting disrespect and a willingness to fight.
A week before the shooting, Lopez and Salas were walking on the street when a car drove up, in which defendant was a passenger. The driver of the car threw gang signs at them and defendant pointed at Lopez and "mugged" him again.
On February 21, 2005, Lopez and Salas drove Lopezs Volkswagen Jetta to the home of Salass brother, who lived in an area that was considered Norteno territory.
Lopez parked the car and Salas got out. Salas wanted Lopez to go inside with him, but Lopez said he would wait in the car. While he was sitting there with the engine running, Lopez saw defendant walk toward him.
As defendant approached the Jetta, he pulled out a black semiautomatic pistol. Defendant pointed the gun at Lopez and shot him in the right arm, through an open passenger window. Lopez tried to put the car in gear and escape, but was unable to do so before he was shot.
Hearing shots, Salas emerged from his brothers house and saw defendant put his hand in his belt and walk quickly away. At one point, defendant turned, looked at Salas and said, "Do you want some, too?"
Lopez positively identified defendant as the shooter from a photographic lineup. When defendant was arrested, he was carrying two bindles of methamphetamine.
The bullet that pierced Lopezs arm traveled into his right chest, causing him severe injuries.
Defense
Defendant took the stand in his own defense. He acknowledged that bad blood had developed between himself and Lopez as rival gang members. He testified that on the night of February 21, he was high on marijuana, ecstasy and beer. He claimed as he walked by, Lopez called him a "bitch," which scared him and made him feel unsafe. Seeing Lopez make a motion with his hand and believing that he was reaching for a gun, defendant grabbed his pistol and fired one shot into the sunroof. He did not intend to kill Lopez, but fired the gun only to scare him.
DISCUSSION
I. Sufficiency of the Evidence to Support the Section 246 Conviction
Defendant contends that the evidence was insufficient to support his conviction of willful discharge of a firearm at an occupied vehicle. He argues that the evidence shows that he was shooting only at Lopez, not at the vehicle, and therefore did not act with the requisite intent.
When confronted with a claim that the evidence is insufficient to support the verdict, the reviewing court determines "`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. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573], italics omitted; . . .) We examine the record to determine `whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Further, `the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, [or] occupied motor vehicle . . . is guilty of a felony . . . ." The word "willfully" "implies simply a purpose or willingness to commit the act," and "does not require any intent to violate law, or to injure another, or to acquire any advantage." (§ 7, subd. 1.) "[M]aliciously" means "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (Id., subd. 4.)
"Section 246 is a general intent crime." (People v. Watie (2002) 100 Cal.App.4th 866, 879.) It "does not require a specific intent `"to do a further act or achieve a future consequence" beyond the proscribed act of shooting `at an occupied [vehicle] or other proscribed target. [Citation.] In other words, the statute does not require a specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure)." (People v. Overman (2005) 126 Cal.App.4th 1344, 1357 (Overman).)
Defendants argument collapses under the weight of its false premise that the statute requires that the shooter harbor a specific intent to hit the vehicle. That is not the law. (People v. Cruz (1995) 38 Cal.App.4th 427, 431-432.) As long as the defendant willfully discharges a firearm "at" or in the general direction of an occupied building or vehicle, the statute is violated. (See People v. Chavira (1970) 3 Cal.App.3d 988, 993 [the defendants conviction of violating section 246 affirmed, despite claim he intended to hit only persons congregating in front of the building].)
Defendants argument also runs counter to the legislative purpose behind the statute. Section 246 was enacted to protect persons from death and injury caused by gunshots fired at occupied vehicles, not to protect motor vehicles from sustaining body damage.
Defendant claims that the jury verdict finding him guilty of the specific intent crime of attempted murder "necessarily excludes" a finding that he had the requisite intent for a section 246 conviction. Not so.
As stated in Overman, "the act of shooting `at a proscribed target is also committed when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it." (Overman, supra, 126 Cal.App.4th at p. 1356.) Thus, the jurys finding that defendant intended to kill Lopez is not incompatible with an additional finding that he shot at an occupied vehicle within the meaning of section 246. The two crimes are not inconsistent and may be violated by the same act.
Because the evidence showed that defendant committed the voluntary and malicious act of shooting "at" an occupied vehicle, he violated section 246, regardless of whether he harbored the additional intent to strike the vehicle itself.
II. Sufficiency of the Evidence to Support the Gang Enhancement
Defendant contends that the evidence was insufficient to support the jurys finding the shooting of Lopez was committed to further criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). According to this argument, the shooting was committed not to promote any further criminal conduct by the Norteno gang, but only in furtherance of a personal feud, i.e., "bad blood," between two individuals — defendant and Lopez. This argument is as frivolous as the previous one.
Section 186.22, subdivision (b)(1) provides an enhancement punishment for any crime that has been committed "for the benefit of, at the direction of, or in association with [a] criminal street gang," and with specific intent "to promote, further, or assist . . . criminal conduct by gang members."
There was a plethora of evidence that this crime had its genesis in and was the direct result of open warfare between the Norteno gang, to which defendant belonged, and the Sureno gang, with which Lopez was affiliated. Any personal animosity between the perpetrator and the victim was purely incidental to the ongoing turf battle between the two rival gangs.
"The use of expert testimony in the area of gang sociology and psychology is well established." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 (Olguin).) In this case, Lopez and his friend had traveled to a Norteno neighborhood when they were spotted by defendant. As the Peoples gang expert, Detective Christopher Mouzis explained that, by shooting Lopez and then bragging about it, defendant increased his stature within the Norteno gang. Furthermore, the shooting of Lopez sent a powerful message to the Sureno gang: "dont come into our area and disrespect us by being in our area, this is what is going to happen to Surenos or anyone else who doesnt belong in our area . . . ." Mouzis thus concluded that the shooting was "definitely" committed with the intent to benefit the Norteno gang.
Since the record reflects no prior relationship between the perpetrator and the victim, and no reason for their animosity other than gang-related insults, the jury was well within its province in finding the crime was committed for the benefit of a street gang. (Olguin, supra, 31 Cal.App.4th at pp. 1382-1383.)
In a footnote to his opening brief, defendant asserts that Olguin "and similar cases" were wrongly decided and suggests we not follow them. We decline the invitation.
Defendant nevertheless maintains, however, that the crime was not "committed with the specific intent to promote, further or assist any future criminal conduct, as required by section 186.22, subdivision (b)(1)." (Italics added.) While, it is true that "`[s]ection 186.22 requires evidence of a gangs past criminal conduct and ongoing criminal nature" (Olguin, supra, 31 Cal.App.4th at p. 1383, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 965, disapproved on a different ground in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10), Detective Mouzis supplied such evidence by testifying that the Norteno gang was fully immersed in criminal activity. "[T]hey engage in sales of narcotics. They go out and steal cars. They commit burglaries. They do drive-by shootings and commit homicides."
Furthermore, when defendant was arrested, he was carrying two bindles of methamphetamine, giving rise to the inference that he personally participated in illicit drug dealing as an incident of his gang membership. We find substantial evidence from which the jury could find the shooting of Lopez was committed to "promote" or "assist" criminal conduct by gang members.
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, Acting P. J.
ROBIE, J.