Opinion
F069881
05-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE RAUL ANGUIANO, et al., Defendants and Appellants.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Jose Raul Anguiano. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Armando Jacobo Gonzalez. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. VCF212472A, VCF212472B)
OPINION
APPEAL from judgments of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Jose Raul Anguiano. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Armando Jacobo Gonzalez. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jose Anguiano and Armando Gonzalez were jointly tried and convicted on charges of murder and attempted murder. Gonzalez was also convicted of discharging a firearm at an inhabited dwelling. On appeal, both defendants challenge the prosecution's evidence of their membership in a criminal street gang. There are additional issues concerning the sufficiency of the evidence supporting the attempted murder convictions, and a claim by Gonzalez regarding his right to self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta). Notwithstanding a technical error that requires vacating one of two multiple-murder special circumstance findings against Gonzalez, there are no grounds for reversal. We vacate the redundant special circumstance finding and otherwise affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Gonzalez was charged by information with offenses arising from two separate incidents. He was accused of murder (Pen. Code, § 187; count 1) and discharging a firearm at an inhabited dwelling (§ 246; count 8) in connection with the shooting death of 13-year-old Martin Leon on September 27, 2008. The victim was a sibling of an alleged rival gang associate. These crimes were alleged to be gang-related within the meaning of section 186.22, subdivision (b)(1) and subject to further enhanced penalties for personal and intentional use/discharge of a handgun (§ 12022.53, subd. (d)). In addition, count 1 was alleged to have occurred under the special circumstances described in section 190.2, subdivision (a)(22), i.e., murder committed by an active participant in a criminal street gang for the purpose of furthering the activities of the gang.
Except where otherwise specified, all further statutory references are to the Penal Code.
The remaining counts pertained to events that occurred on October 3, 2008. Anguiano and Gonzalez were each charged with murder (count 2) in the death of 20-year-old Samuel Guzman, an alleged rival gang associate who died from a gunshot wound to the face. They were additionally charged with premeditated attempted murder (§§ 187, 189, 664, subd. (a)) for shooting at five other people: Marco Mendez (count 3), Omar Rodriguez (count 4), Rogelio Zavala (count 5), Benjamin Romero Martinez (count 6), and Francisco Villatoro (count 7). Counts 2 through 7 included the same gang, firearm, and special circumstance allegations as referenced above. Gonzalez also faced a special circumstance penalty under section 190.2, subdivision (a)(3) for committing multiple murders.
A third individual, Juan Covarrubias, was named as a codefendant in counts 2 through 7. However, Covarrubias agreed to testify for the prosecution in exchange for a plea deal, which reportedly limited his exposure to a maximum prison term of 21 years. The case was tried before a Tulare County jury in May 2014.
Prosecution Case
Murder of Martin Leon
In the early morning hours of September 28, 2008, Deputy Edward Holt of the Tulare County Sheriff's Department was dispatched to an apartment on Guerrero Street in Richgrove, where a homicide had occurred. Martin Leon's mother and stepfather called the police after discovering his body lying inside the entryway to their residence. The victim had sustained gunshot wounds to the right arm and chest. Upon his arrival, Deputy Holt saw three "chest level" bullet holes in the front door of the apartment. Three expended bullets were later recovered from inside the home, but no corresponding shell casings were found.
The victim's older brother, Eduardo Leon, testified that the shooting was precipitated by a gang-related dispute the previous afternoon. Eduardo and his friends, all of whom were "associated" with "Northerners" at the time, had exchanged words with a group of "Southerners" outside the home of his neighbor, Freddy Villegas. Villegas was a member of a Southerner "clique" or subset known as RBT (Richgrove Barrio Trece). The confrontation began with verbal taunts and the flashing of gang signs, but then the Southerners started throwing beer bottles and Villegas tried to force his way into Eduardo's apartment. The Southerners eventually departed and Eduardo went out to a party, leaving his brother home alone with instructions to stay inside and keep the doors locked. At trial, Eduardo and another eyewitness identified defendant Gonzalez as one of the Southerners who had been with Villegas earlier in the day.
The prosecution's star witness, Juan Covarrubias, testified that he and Gonzalez were fellow gang members at the time of the incident. They belonged to a "Southern-affiliated" clique called Campo Loco, so named for being based in the Woodville Labor Camp outside of Porterville. He described the labor camp as "a neighborhood ... like a low income housing sort of thing." Campo Loco consisted of approximately 20 members and 10 non-member associates.
Covarrubias had socialized with Gonzalez and Villegas on the day of their confrontation with Eduardo Leon and was in a car with them that evening when Gonzalez decided to return to Eduardo's apartment. Covarrubias did not participate in the earlier incident, but Gonzalez had informed him that "they had had an issue" with some rival gang members. As they neared their destination, Gonzalez pulled over, exited, and asked Covarrubias to "flip the car around" so it wouldn't be facing a dead end in the road. Covarrubias complied, moving into the driver's seat and repositioning the vehicle as Gonzalez walked off toward one of the apartment buildings. Gonzalez was armed with a .38-caliber revolver, which Covarrubias characterized as being collectively owned by the members of Campo Loco.
While seated in the car with Villegas, Covarrubias heard Gonzalez knock at someone's apartment and say, "Open up the door, homey, there's a bunch of scraps [i.e., Southerners] out here. Where's your brother at?" Next came the sound of three or four gunshots. Gonzalez returned to the vehicle carrying the .38 revolver and the group drove away together.
Two independent witnesses corroborated portions of Covarrubias's testimony. The victim's then-girlfriend testified to being on the phone with him at approximately 11:00 p.m. the night of the shooting when he informed her that someone was outside of his apartment asking for his brother. A period of persistent knocking and doorbell-ringing was followed by a brief conversation between the victim and one or more unidentified individuals. She then heard screaming and the victim gasping for air. The other witness, Jose Alvarado, was a former Campo Loco gang member to whom Gonzalez had allegedly made a confession about killing a boy in Richgrove. Alvarado testified that Gonzalez's statements of admission included the following details: "[He] went up to somebody's door, knocked on the door, asked for the brother, and [the] brother didn't answer. He shot the one that did answer."
Murder of Samuel Guzman
On October 3, 2008, Samuel Guzman was shot and killed in the front yard of a house located near West Grand Avenue and Douglas Street in Porterville. The incident occurred shortly before midnight. Guzman was ambushed while congregating with a group of friends that included Benjamin Martinez, Marco Mendez, Omar Rodriguez, Francisco Villatoro, and Rogelio Zavala. Multiple witnesses testified that two Hispanic males walked up to the house and shouted "gang slurs" before opening fire on the entire group.
Most of the percipient witnesses recalled hearing four to five gunshots, though one person estimated that "five or six rounds" were fired. There were no shell casings at the crime scene and investigators recovered only two expended bullets. After comparing those bullets to the ones from the Martin Leon murder, the prosecution's criminalist and firearms expert opined that all were "probably" fired from the same gun. The absence of shell casings led police to believe a revolver had been used in both cases.
Three of the attempted murder victims heard the perpetrators make a reference to Campo Loco before shooting at them. Another survivor, Francisco Villatoro, recognized defendant Anguiano when shown his picture in a photographic lineup. At trial, Villatoro identified Anguiano as the shooter.
The surviving victims denied that they or the decedent were gang members. However, Officer Marcial Morales of the Porterville Police Department opined that Samuel Guzman was a "Northern gang related associate or a member." The opinion was based on Guzman's various tattoos, which included a grouping of four dots on his wrist and the number 14 on his arm, among others. Officer Morales had attended the victim's autopsy and was aware, from over a decade of experience as a gang crimes investigator, that the numbers and imagery tattooed on Guzman's body were indicative of "Norteno gang status."
According to Juan Covarrubias, the shooting was an act of retaliation for an attack on Anguiano approximately two weeks earlier. As confirmed by the testimony of Officer Morales, Anguiano had survived a drive-by shooting by unknown assailants who fired a shotgun in the direction of him and his niece. Officer Morales later discovered that Samuel Guzman owned a car matching the description of the suspect vehicle in that shooting, which was found parked outside the home where Guzman was killed.
Gonzalez spearheaded the assault on Guzman and his friends, conceiving of the plan after spotting the victims while on his way to or from a nearby fast food restaurant. Covarrubias was at home visiting with Anguiano and an acquaintance named Jorge Medina when Gonzalez, who was allegedly intoxicated, showed up and demanded that Anguiano seek retribution for the drive-by shooting. Anguiano was reluctant to do so, but Gonzalez threatened him, indicating "it was time for [Anguiano] to make a decision" and saying, "If you don't handle it right now, I'm going to handle you." Covarrubias and Medina provided separate accounts of this incident at trial, both claiming that Gonzalez also said he was carrying a gun. Covarrubias and Anguiano got into Gonzalez's car and the three of them drove off together. Medina, who was not a member of Campo Loco, was told to stay behind because the matter being dealt with was "none of his business."
Covarrubias testified that Gonzalez handed the aforementioned .38-caliber revolver to Anguiano before driving them to the eventual crime scene. When they arrived, Gonzalez waited in the car while his companions got out and approached the targets. Covarrubias announced their presence by saying, "This is big bad sur trece, Campo Loco gang." He then turned to Anguiano and said, "Little homey, let them know." Taking his cue, Anguiano began shooting.
Additional Gang Evidence
Covarrubias explained that the terms "Southerner" and "Sureno" generally refer to any member of a group operating under the organizational umbrella of the Mexican Mafia prison gang, aka, "La Eme." The Mexican Mafia is the central governing body that controls imprisoned members and affiliates, as well as external gangs/cliques, e.g., Campo Loco. In other words, non-incarcerated Southerners are basically street-level operatives for the Mexican Mafia.
The "Sureno" nomenclature technically refers to a hierarchical status that must be earned through actions demonstrating one's service and loyalty to the Mexican Mafia. Lower level gang members and associates are more accurately referred to as Southerners or "Southsiders." The number 13 has significance to Surenos and Southerners because the 13th letter of the alphabet is M, which to them connotes the Mexican Mafia (hence the alternative name, La Eme). In Central California, they also typically identify with the color blue.
Covarrubias had spent time in prison and achieved the status of Sureno prior to the events at issue in the case. He testified to having personal knowledge that Anguiano and Gonzalez were Campo Loco gang members during the relevant time period. Campo Loco did not have a designated leader or "shot caller," but Covarrubias and Gonzalez were its most feared and respected members. Whereas Covarrubias had earned his respect through service to the Mexican Mafia while incarcerated, Gonzalez's influence was more attributable to his reputation for being a "crazy dude." Covarrubias thought of him as a "bully" and a "hothead." Anguiano did not have the same clout; he was what is known as a "little homey," loosely translating to "youngster" or "new recruit," i.e., a junior member.
Officer Morales had known Gonzalez for several years and had seen various gang-related tattoos on his body. His testimony, which was confirmed by photographic evidence, established that Gonzalez had tattoos of his gang moniker, "Snapper"; the letters "CL," which indicated his Campo Loco membership; and a grouping of three dots on his wrist, signifying a Sureno/Southerner affiliation.
Officer Morales had also known Anguiano for several years and personally executed a search warrant at his residence following the murder of Samuel Guzman. The search yielded a pair of brass knuckles, blue-colored clothing and accessories indicative of "Southern gang association or membership" (e.g., a blue bandana and a blue belt with an S-shaped buckle), a letter referring to his gang moniker, "Skittles," and an album by a "Sureno rap artist." Officer Morales also testified that Anguiano had admitted to being a "Sureno gang member" during a September 2008 interview, which was conducted as part of a police investigation into the earlier drive-by shooting.
Despite the wealth of information provided by Coverrubias and Officer Morales, the prosecution designated Deputy Vincent Buck of the Tulare County Sheriff's Department to testify as its gang expert. Deputy Buck's testimony covered most of the information discussed above, including the connection between Southerners and the Mexican Mafia, and delved further into the activities of Campo Loco and other local cliques. The expert opined that the defendants were active gang members at the time of the charged offenses. In response to hypotheticals intended to mirror the underlying facts, he further opined that the offenses were committed for the benefit of a criminal street gang. A significant portion of Deputy Buck's testimony relied on hearsay evidence, which is an issue that we address in the Discussion, post.
Defense Case
Gonzalez
Gonzalez testified on his own behalf. He admitted his membership in Campo Loco during the relevant time period and generally acknowledged the connection between Southerners and the Mexican Mafia, describing himself as "just a Southsider." He was known as "Snapper" because he "like[ed] to fight a lot," especially with Northerners, which was his primary method of "putting in work" for the gang.
Gonzalez testified to witnessing the murder of Martin Leon but denied complicity in the crime. He accused Covarrubias of being the shooter. Covarrubias had allegedly acted alone and without providing any advance warning of his intentions. To corroborate this story, Gonzalez elicited testimony from Jose Astorga, a Campo Loco gang member who claimed to have once heard Covarrubias brag about murdering someone in Richgrove.
Gonzalez also denied responsibility for the Samuel Guzman murder and related shootings. In his version of events, he drove Anguiano and Covarrubias to the eventual crime scene for the purpose of buying marijuana from a friend who happened to live in that neighborhood. Gonzalez parked and waited inside the car, assuming his companions would to go up to the dealer's house and conduct the transaction. Anguiano and Covarrubias exited the vehicle, but unexpectedly walked off in the opposite direction. Gonzalez soon heard four or five gunshots and realized Covarrubias had "burned" him for the second time in a week. A short while later, Anguiano and Covarrubias returned to the car and got back inside. Gonzalez was angry about his unwitting inclusion in this incident and made his feelings known to Covarrubias on their drive back to the Woodville Labor Camp.
An ex-Northerner named Daniel Longoria testified as Gonzalez's gang expert. Mr. Longoria had abandoned the gang lifestyle in the 1990s and developed a career in anti-gang outreach work, counseling, and public speaking. When presented with hypothetical scenarios in which a gang member drove perpetrators to and from certain crime scenes but never formed the required mens rea for the crimes, the expert opined that the driver had not acted to benefit his gang.
Anguiano
Anguiano did not testify. His defense witnesses included an ex-girlfriend and her mother, both of whom attested that he was with them on the night of October 3, 2008 and could not have participated in the Guzman murder. On rebuttal, the prosecution introduced evidence that the ex-girlfriend was recorded on a jail call with Anguiano proposing the details of a false alibi.
Verdicts and Sentencing
Gonzalez was convicted as charged on all counts. The enhancements and special circumstance allegations were found to be true. He was sentenced to life in prison without the possibility of parole, plus an aggregate indeterminate term of 175 years to life.
The jury viewed Anguiano as slightly less culpable than Gonzalez, convicting him of second degree murder for the death of Samuel Guzman but finding him guilty as charged on counts 3 through 7. All related enhancement allegations were found to be true. Anguiano was sentenced to an aggregate indeterminate prison term of 165 years to life.
DISCUSSION
Faretta Claim
Background
In approximately September 2013, Gonzalez made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 for the replacement of his appointed defense counsel. The motion was heard and denied on September 13, 2013, at which time Gonzalez made the following statements to the trial court: "I really don't want him to represent me. I'm firing [my attorney] and if I can't get a fair trial and a fair judge, I'm firing you, too, because I really don't want to be in this courtroom. I'm getting cheated. My life is on the line." The court advised Gonzalez that if he truly desired to "fire" his attorney the issue could be explored at the next hearing, which was four days away.
On September 17, 2013, the following exchange took place on the record:
Trial Court: "Mr. Gonzalez, when we were last in court, you indicated that you wished to fire your attorney.... To the extent that may be construed as a Faretta motion, that is, a motion that you wish to represent yourself, I'm going to give you paperwork that you must fill out. If you wish to represent yourself, fill the paperwork out. I will review it with you. And then [at the next hearing], if that's what you wish to do, that is, be your own attorney, I will consider that matter. If you wish not to be your own attorney, you must advise me. At this point I'm going to have you fill out that paperwork and then I'll consider the matter.
Please understand, sir, that if you represent yourself, you will be - you will have to represent yourself as any other person would under the circumstances here. You would face a District Attorney that is skilled, that is a lawyer, and has substantial experience in trying cases like this. ...
Gonzalez: If I don't represent myself, who's going to represent me besides him?
Trial Court: No, sir -
Gonzalez: I represent myself, then?
Trial Court: Then you fill out that paperwork and we can discuss it [at the next hearing]. Please understand that I'm not required to grant your Faretta motion either because I have to be satisfied, in fact, that you're able to represent yourself effectively. Fill out the paperwork
and we'll have a further discussion [when you return to court]. All right?
Gonzalez: All right."
On September 25, 2013, the trial court made a record of Gonzalez's failure to complete its waiver of counsel form: "You've not completed the form in its entirety, and I will not consider it unless you fill it out and acknowledge each of these matters." The court went on to highlight several examples of Gonzalez's failure to acknowledge certain risks and consequences of self-representation. Gonzalez admitted that in one of those examples, which had to do with the potentially irrevocable nature of his decision to forgo counsel, he had left the form blank because he disagreed with what it said. He also acknowledged confusion regarding other aspects of the form, and indicated that his desire to represent himself might be contingent upon how the court ruled on a then-pending motion to continue the trial, which was set to begin the following week.
The trial court grew impatient with Gonzalez: "We're not going to negotiate over your representation. You either elect to represent yourself or not. I'll have you fill out this form and complete it because I need to make sure, sir, that we have a record where you indicate that you understand each and every one of these things because - I want them initialed because we're not going to play any games. We're not going to play a game because you didn't initial something, later on you're going to claim that the Court did not explain it to you. I'm going to make a record of each and every one of these things, and I'm requiring that you initial indicating that you understand them and you understand the consequences of what you are doing. No leeway here, sir. ... Sir, today is Wednesday. I'm going to have you come back very promptly here because we need to know what you're going to do."
The matter was continued until September 27, 2013. When the motion came on for hearing that morning, Gonzalez was asked if he had completed the waiver of counsel form. He replied, "Well, I haven't. Why? The matter - no matter which way I pick, whether I sign or not, I won't get a fair trial, fair lawyer, or judge. What's the point in me signing it if you don't give me [more than] two days to be ready for trial?" Following another brief exchange, the judge said, "Sir, you have a choice: You complete the papers, and I'll consider your request to represent yourself, or [your appointed lawyer] will continue to be the attorney of record. Because until you complete that form and assure me that you know exactly what you're doing when it comes to representing yourself, until you do that, I can't simply remove [him]."
Gonzalez complained about not having enough time to educate himself on the law, but finally said that he would fill out the form. The court asked when, and Gonzalez replied, "Next court date because I didn't brought the papers with me. What I just said, I thought that's how I was going to go. But if you're going to give me time to study it, I will sign it." There were further discussions about the trial date, and the proceedings concluded with Gonzalez being reminded to bring the waiver form to the upcoming hearing on September 30, 2013. The judge added, "Be prepared also to select trial dates in the event that the Court grants your motion to represent yourself."
On September 30, 2013, when asked if he had completed the form, Gonzalez replied, "Yes, but I choose today not to do it. I ripped it up. I talked to him right now, and I kind of went over it a little bit over the weekend. It's too confusing. I understand that the time you guys will give me [-] I won't have enough time. Why waste my time with it?" The court inquired, "Do you wish to represent yourself or not?" He answered, "No."
On appeal, Gonzalez claims the trial court interfered with his constitutional right to self-representation. He summarizes his position thusly: "Although Mr. Gonzalez ultimately withdrew his request to represent himself, he did so because the trial court placed unreasonable conditions on granting the request and refused to agree to give [him] a reasonable amount of time to prepare. As such, the trial court's actions led [him] to believe he should withdraw the motion[,] [which] constituted reversible error."
Analysis
"[T]he United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself." (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall), citing Faretta, supra, 422 U.S. at p. 819.) In order to exercise that right, the defendant must affirmatively waive the right to counsel. (People v. Miranda (2015) 236 Cal.App.4th 978, 984.) "A trial court must grant a defendant's request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently." (People v. Lynch (2010) 50 Cal.4th 693, 721.) However, trial courts are also required to "indulge every reasonable inference against waiver of the right to counsel." (Marshall, supra, 15 Cal.4th at p. 20.)
Gonzalez's arguments focus on the unequivocal nature of his request and alleged misstatements of the law by the trial court regarding the competency requirements for self-representation. Some of these contentions are valid. (See People v. Silfa (2001) 88 Cal.App.4th 1311, 1321-1322 [standardized Faretta forms are "not designed as a test that a defendant seeking self-representation must pass."].) Nevertheless, we do not believe the trial court violated Gonzalez's Sixth Amendment rights by insisting upon his completion of its waiver form.
" 'In order to deem a defendant's Faretta waiver knowing and intelligent,' the trial court 'must [e]nsure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the "dangers and disadvantages of self-representation." [Citation.]' [Citation.] ... The defendant 'should at least be advised that: self-representation is almost always unwise and that the defense he conducts might be to his detriment; he will have to follow the same rules that govern attorneys; the prosecution will be represented by experienced, professional counsel who will have a significant advantage over him in terms of skill, training, education, experience, and ability; the court may terminate his right to represent himself if he engages in disruptive conduct; and he will lose the right to appeal his case on the grounds of ineffective assistance of counsel. [Citation.] In addition, he should also be told he will receive no help or special treatment from the court and that he does not have a right to standby, advisory, or cocounsel.' " (People v. Sullivan (2007) 151 Cal.App.4th 524, 545-546.) The use of standardized forms to ensure fulfillment these requirements is a common practice. (People v. Weber (2013) 217 Cal.App.4th 1041, 1058.)
The paramount consideration here is that the motion was never denied; the trial court merely deferred its ruling for a couple of days. Gonzalez ultimately withdrew his request. The proceedings in question occurred nearly eight months before trial and the issue was never revisited. Gonzalez's abandonment of the Faretta request is fatal to his claim. (People v. Stanley (2006) 39 Cal.4th 913, 933; People v. Dunkle (2005) 36 Cal.4th 861, 908-909; People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8 and fn. 12 ["unlike the right to counsel, the right to self-representation can be waived or abandoned by conduct."].)
Sufficiency of the Evidence
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The jury's factual findings are reviewed under the same standard. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) "Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Attempted Murder Convictions
1. Mens Rea
Gonzalez was convicted of attempted murder on counts 3 through 7 based on a theory of aiding and abetting. He argues that the prosecution failed to prove the necessary mental state for these crimes. We are not persuaded.
Attempted murder requires express malice, i.e., the intent to kill. (People v. Booker (2011) 51 Cal.4th 141, 177-178.) To be found guilty of attempted murder as an aider and abettor, a defendant must have acted with at least the same mental state as that of the direct perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) "A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (Marshall, supra, 15 Cal.4th at p. 40.)
"Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially." (People v. Thomas (2011) 52 Cal.4th 336, 355.) In the context of aiding and abetting, probative factors include presence at the crime scene, companionship with the direct perpetrator, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) Gonzalez shot and killed a 13-year-old boy on September 27, 2008 for no apparent reason other than his animosity toward Northerners. A week later, he sought out a fellow gang member, Anguiano, to inform him that a group of supposed Northerners, i.e., Samuel Guzman and his friends, were gathered at a particular location. Gonzalez furnished Anguiano with a loaded revolver and demanded that he "handle" the situation. Gonzalez used his own car to drive Anguiano to where the alleged Northerners were located and waited for him to complete the "mission." Even after hearing multiple gunshots, he remained parked until Anguiano came back to the car and then helped him to flee the scene.
The jury could have reasonably inferred that Gonzalez intended for Anguiano to shoot at Guzman and his companions. "The act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill. [Citation.] Moreover, attempted murder does not necessarily require a specific target. ... [A]n indiscriminate would-be killer who fires into a crowd is just as culpable as one who targets a specific victim." (People v. Houston (2012) 54 Cal.4th 1186, 1218.) Viewed in the light most favorable to the judgment, the evidence is sufficient to support the attempted murder verdicts. 2. Actus Reus
By charging five counts of attempted murder, the People assumed the burden of proving Anguiano fired six total shots-one for Samuel Guzman and five for the victims named in counts 3 through 7. As previously discussed, there were no shell casings at the crime scene and investigators recovered only two bullets. One of the victims testified that he was much further away from Guzman than the others were when the shooting began. Given these facts, and since all but one of the percipient witnesses testified to hearing no more than five gunshots, Anguiano and Gonzalez submit that one of the attempted murder convictions must be reversed.
A prosecution witness testified that "five or six rounds" were fired. A defense witness who claimed to have seen Juan Covarrubias dispose of the gun afterwards described it as a "six-shooter." "We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. [Citation.] The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1507-1508.) Thus, there is sufficient evidence to support the jury's finding that six shots were fired in an attempt to kill six different people.
Gang Findings
Section 186.22, subdivision (b) provides for enhanced penalties whenever a crime is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Anguiano contends that the People failed to prove his membership in, or association with, an actual "criminal street gang." Gonzalez summarily joins in his arguments. 1. Additional Background
Deputy Buck, the designated gang expert, had several years of experience investigating gang crimes while employed by the Porterville Police Department and Tulare County Sheriff's Department. He had received specialized training and was part of the Tulare County Gang Task Force. Deputy Buck estimated that there were 150-200 "Southern gang members" in the Porterville area during 2008, and claimed to have personally spoken to around 70 of those individuals.
The prosecutor asked if there was any type of hierarchy "within the Southern gang," then clarified, "in our local Southern gang." Deputy Buck responded affirmatively and explained: "Well, you have basically the individuals, or the foot soldiers, the ones out on the street. They're regulated by the person that's in charge of that particular clique or that particular area. And they are, in turn, regulated by somebody that's inside prison, normally [a] La Eme member, or a soldier for La Eme." The next question was, "Based on your expertise, what is the primary activity of the Southern gang here locally? The expert replied, "There's a whole list of them. I believe they call it - there's, like, 33 that's been identified by the State as crimes that gang members are primarily involved in. They range from homicide, attempt homicides, shootings, robbings, identity theft, witness intimidation, kidnapping, assaults." Anguiano's first argument with respect to the jury's gang findings is based on the italicized response. He claims the People failed to establish the so-called "primary activities" element of section 186.22 because Deputy Buck did not specify which activities were primarily engaged in by local Southerners and/or Campo Loco members. (See Analysis, post.)
Deputy Buck testified about the Southerner cliques that were active in Tulare County: "A clique - first of all, you have La Eme, which is the overall control. You can look at it kind of like an umbrella. Underneath that, the Sureno, the Sureno is basically in the teaching process that's moving on up the chain of command. Then you'll have the Southerners. The Southerners are mostly the younger ones that are out trying to put in work to work their way up the ladder. ... Some of the common cliques in ... Tulare County [are] ... Campo Loco is going to be the primary. You're going to have Brown Pride Surenos, Sureno Lifestyles, SLS, you're going to have ... Richgrove Trece down in [the] Delano area, ... and they all align with each other. Some individuals from one particular clique will combine together to go form what they call a 'car to go' and commit crimes." The expert further explained that the local cliques identify with the color blue and the number 13, and view Northerners as their common enemy.
To satisfy the so-called "predicate offenses" element of section 186.22, the prosecution elicited testimony about three crimes which had no transactional relationship to the case. Based on his review of police reports and court documents, Deputy Buck related information about an attempted murder conviction of an alleged local Southerner from an unspecified clique; an assault with a deadly weapon conviction of an alleged member of the Sureno Lifestyle clique; and a voluntary manslaughter conviction of another alleged Southerner from an unspecified clique. Purporting to rely on the California Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty), Anguiano claims this evidence fell short of establishing the required predicate offenses. (See Analysis, post.) 2. Analysis A. Primary Activities
As used in section 186.22, a "criminal street gang" refers to "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [in subdivision (e) of the statute] ..." (§ 186.22, subd. (f).) There are 33 different crimes listed in section 186.22, subdivision (e), which is what Deputy Buck was alluding to in his response to the prosecutor's "primary activities" question. (Id., subd. (e)(1)-(33).) The enumerated offenses include assault with a deadly weapon and all forms of unlawful homicide. (Id., subd. (e)(1), (3).)
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. ... Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith).)
In most cases, the primary activities element is established with relative ease. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing that the gang's primary activities include the commission of one or more offenses listed in section 186.22, subdivision (e). (See Nguyen, supra, 61 Cal.4th at p. 1068; Sengpadychith, supra, 26 Cal.4th at p. 324.) Given the deferential standard of review, appellate courts tend to accept minimalistic testimony on this issue. (See, e.g., Prunty, supra, 62 Cal.4th at p. 82 [gang expert's testimony "that 'the Nortenos' in the area engage in various criminal practices including homicide, assault, and firearms offenses" was "likely sufficient" to establish primary activities element].) Even liberally construed, Deputy Buck's response to the primary activities question was not alone sufficient to satisfy the People's burden. However, there was additional testimony for the jury to consider.
"Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (Sengpadychith, supra, 26 Cal.4th at p. 323.) Juan Covarrubias testified to having personal knowledge of Southerners/Campo Loco gang members committing three different homicides, those of Martin Leon and Samuel Guzman, and a November 2008 killing for which Covarrubias pleaded guilty to a reduced charge of voluntary manslaughter. Defense witness Jose Astorga was an admitted Southerner and Campo Loco member who acknowledged his own prior conviction for voluntary manslaughter. In addition, Officer Morales testified to his personal knowledge that approximately 13-15 gang-related homicides occurred in the Porterville area between 2006 and 2008, all involving "north on south or south on north" killings. Deputy Buck referenced these killings during his own testimony, explaining that law enforcement officials "had to do a wiretap investigation" because the homicides were "getting out of hand."
Jurors are presumed to be intelligent people who are capable of understanding and correlating different pieces of information. (People v. Adams (2009) 176 Cal.App.4th 946, 954.) Again, we must indulge every reasonable inference the jury could have drawn from the evidence. Viewing the record as a whole, there is sufficient evidence that members of the defendants' gang consistently and repeatedly committed an offense enumerated in the gang statute, i.e., "unlawful homicide or manslaughter" (§ 186.22, subd. (e)(3)). (See People v. Vy (2004) 122 Cal.App.4th 1209, 1212, 1225 [commission of three violent assaults by members of defendant's gang within a 12-week period, including the charged offense, constituted sufficient evidence of the gang's primary activities].) B. Predicate Offenses
In addition to the primary activities element, section 186.22 requires evidence that members of the gang "individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' (Id., subd. (e).)" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) Prosecutors may rely on evidence of the defendant's commission of a currently charged offense to satisfy this requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10.)
Anguiano argues that in light of the California Supreme Court's analysis in Prunty, supra, the People's evidence of three crimes committed by alleged Southerners who belonged to cliques other than Campo Loco did not satisfy the predicate offenses requirement. We decline to reach the merits of that argument because the jury could have found the necessary pattern of criminal gang activity without considering the challenged testimony. The People correctly point out that since currently charged crimes may be relied upon to establish the predicate offenses, the jury needed look no further than the murders of Martin Leon and Samuel Guzman, at least with regard to counts 2 through 7.
The Prunty opinion holds, in relevant part:
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). But it is not enough, as the Court of Appeal in this case held, that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at pp. 71-72, fns. omitted.)
A different analysis may apply to counts 1 and 8 given the rule that "[c]rimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) Since the Leon murder happened first, the second predicate offense arguably needed to occur contemporaneously or at an earlier point in time. Juan Covarrubias provided the necessary evidence when he testified to witnessing a drive-by shooting committed by Freddy Villegas just a few hours prior to Leon's death.
Several witnesses, including defendant Gonzalez, testified that Villegas was a Southerner who belonged to the RBT clique. Covarrubias and Gonzalez each testified to being with Villegas on the afternoon of September 27, 2008 when he discharged a firearm from Gonzalez's vehicle. Covarrubias specified that Villegas shot at a group of people. Gonzalez testified that Villegas only fired at the ground, not in the direction of the group. The jury was free to disbelieve Gonzalez and accept Covarrubias's version of events.
Villegas's actions could be viewed as assault with a deadly weapon or even attempted murder, both of which qualify as predicate offenses under the gang statute. (§ 186.22, subd. (e)(1), (3).) Discharging a firearm from a motor vehicle is also a predicate offense (id., subd. (e)(6)), but the jury was not instructed on that point. The instructions only discussed murder, attempted murder, and assault with a deadly weapon.
Predicate offenses need not be gang-related, and proof of a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524; People v. Augborne (2002) 104 Cal.App.4th 362, 375.) The connection between the Campo Loco clique and Villegas's RBT clique was established to the degree required by Prunty, supra. Deputy Buck testified that members of the local Southern cliques all identified with the same colors and numbers, shared a common enemy in the Northerners, were controlled by La Eme, and sometimes joined forces to commit crimes. (See Prunty, supra, 62 Cal.4th at pp. 72, 77-78.) As explained in Prunty, "proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture. ... In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.) Such evidence was presented in this case. We therefore reject appellants' claim.
Erroneous Admission of Hearsay Evidence
During the pendency of this appeal, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which holds that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. We granted Gonzalez's request to provide supplemental briefing on this issue, and have considered his allegations of reversible error. Anguiano joins in Gonzalez's arguments. For the following reasons, there are no grounds for reversal.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at p. 59.)
Prior to Sanchez, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620 (Gardeley); People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert witness's "basis" testimony to be compliant with the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
In Sanchez, supra, our state Supreme Court held that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the Sixth Amendment right of confrontation. (63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
It suffices to say that nearly all of Deputy Buck's opinions relied on inadmissible hearsay. His belief that Anguiano and Gonzalez were Campo Loco gang members was based on information contained in police reports, which were summarized in front of the jury. The People argue that the Sanchez claims are forfeited because defense counsel did not make certain objections below. We reject this argument given the state of the law at the time of trial. (See People v. Welch (1993) 5 Cal.4th 228, 237 ["Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence."].)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18. (Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Ibid.) " 'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.)
A main point of contention in the parties' briefing is whether Deputy Buck related testimonial hearsay when he claimed to be aware of Campo Loco having a "golden rule" that its members must always retaliate if shot at by a Northerner. We need not resolve that debate because Juan Covarrubias provided substantially similar testimony. He explained, "[In] gang life, you got to retaliate, especially if you were the target."
The gang enhancements in section 186.22, subdivision (b) require that a crime be committed "for the benefit of, at the direction of, or in association with any criminal street gang." (Italics added.) Jurors can infer that a crime was committed "in association" with a criminal street gang if the defendant committed the offense in concert with gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Gonzalez admitted he was a Campo Loco gang member, as did Covarrubias. The gang-related nature of the offenses was an inevitable conclusion. There is no merit in any argument that the jury might have rejected the section 186.22 allegations against Anguiano or Gonzalez had it not been exposed to the inadmissible hearsay in Deputy Buck's testimony.
As to Gonzalez, the convictions on counts 1 and 2 were accompanied by special circumstance findings under section 190.2, subdivision (a)(22). Those findings required proof that (1) he was an active participant in a criminal street gang and (2) the murders were carried out to further the activities of his gang. The admissible evidence summarized in the Factual and Procedural Background, supra, eliminates any doubt that the outcome would have been the same had the improper hearsay been excluded.
Gonzalez takes the prejudice argument a step further, claiming Deputy Buck's recital of hearsay concerning his prior contacts with police portrayed him "as a violent, reckless person who associated with violent, reckless people." Some of the hearsay also indicated that he was "frequently under the influence." The crux of his position is that inadmissible evidence of bad character traits so inflamed the passions of the jury that it became unfairly prejudiced against him, which affected the verdicts on all counts.
Deputy's Buck's hearsay statements included information about the following incidents. In September 2002, when Gonzalez was still in high school, he and another alleged Southerner threatened someone with a knife. In March 2004, he was involved in a gang-related fight at school. According to a police report, Gonzalez told an investigating officer that he had been a gang member since the sixth grade. In August 2004, he was one of multiple individuals questioned during an investigation into a report of gunshots fired in the Woodville Labor Camp. A police report allegedly described Gonzalez as being uncooperative and under the influence of alcohol. Additional police reports from June 2005, August 2005, March 2006, and May 2006 all referenced his consumption of alcohol and/or self-admitted gang membership. In May 2008, Gonzalez was investigated for brandishing a firearm. He was also arrested for "DUI" in November 2008. Additional hearsay evidence alleged multiple admissions of gang membership during jail classification interviews and the commission of violence against other inmates while incarcerated.
It is true that "admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams (1997) 16 Cal.4th 153, 193.) However, when evidence of gang activity or membership is important to the issues of motive and intent, it can be introduced despite its prejudicial nature. (People v. Martinez (2003) 113 Cal.App.4th 400, 413; see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."].) Here, there was an overwhelming amount of admissible evidence regarding Gonzalez's gang membership, association with other violent gang members, and his commission of the charged offenses.
As for the additional bad character evidence, Gonzalez's own testimony undoubtedly left jurors with the same impressions. He portrayed himself as an alcoholic who had enjoyed getting into fights with rival gang members. He acknowledged being a Campo Loco gang member since the age of 10 and serving time in prison on three separate occasions: once for unlawful possession of a firearm and twice for parole violations involving driving under the influence of alcohol. Although Gonzalez denied committing the charged offenses, he had continued to fraternize with Covarrubias after supposedly witnessing Covarrubias murder a 13-year-old boy, thus confirming he "associated with violent, reckless people." For all of the reasons discussed, we conclude the erroneous admission of hearsay during Deputy Buck's testimony was harmless beyond a reasonable doubt.
We reach the same conclusion with respect to Anguiano. Deputy's Buck's hearsay statements included allegations of Anguiano committing vandalism in May 2006 by spray painting gang graffiti in or around the Woodville Labor Camp. In September 2006, he was allegedly contacted by police with another Southerner during a traffic stop. A search of the car yielded a package of methamphetamine. A February 2007 police report allegedly described his suspected involvement in a gang-related brawl and possible stabbing. Deputy Buck's testimony alleged a handful of additional police contacts involving fighting and minor offenses, a DUI charge, and multiple instances of Anguiano admitting his gang membership to law enforcement personnel.
Several people testified to having personal knowledge that Anguiano was a gang member. Officer Morales testified that Anguiano admitted his gang membership to him during an interview. The jury saw photographs of gang-related tattoos on his body. Two eyewitnesses identified him as the shooter in the Samuel Guzman murder. His defense rested on an alibi that was discredited by the People's rebuttal evidence and flatly contradicted by multiple witnesses, including Gonzalez, whose testimony placed him at the crime scene. The jury was also aware that Anguiano fled to Mexico after the shooting. Given the totality of the circumstances, the jury's verdicts were surely not attributable to the Sanchez error.
Special Circumstance Findings
Instructional Error
Gonzalez alleges "the jury instructions given failed to tell jurors that before they could apply the multiple murder special circumstance to a non-killer, they had to find that he intended to kill." His claim is based on People v. Hardy (1992) 2 Cal.4th 86, wherein the California Supreme Court held that such an omission of the intent to kill requirement from a section 190.2, subdivision (a)(3) instruction is improper, but subject to a harmless error analysis. (Id., at p. 192.) We find no prejudice here.
The jury was correctly told that the special circumstances are established if a defendant "has been convicted of more than one offense of murder in the first or second degree." (§ 190.2, subd. (a)(3).) Other instructions explained the mens rea for both degrees of murder and all relevant principles of aiding and abetting liability. In addition, the jury was instructed with regard to the gang-related special circumstance allegations as follows: "If a defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with intent to kill for the special circumstance of [section] 190.2(a)(22) to be true." The jury's verdict of first degree murder and true findings on both the gang-related and multiple-murder special circumstance allegations leave no doubt as to its finding of an intent to kill.
Superfluous Finding
Gonzalez has a legitimate complaint regarding the duplicative pleading of section 190.2, subdivision (a)(3) allegations and inclusion of same on the verdict forms for counts 1 and 2, both of which were found to be true. "When a defendant kills more than one person, the prosecution should allege only one multiple-murder special circumstance; to charge more than one such special circumstance would improperly inflate the seriousness of the defendant's conduct." (People v. Diaz (1992) 3 Cal.4th 495, 565.) The appropriate remedy is to strike/vacate the superfluous finding. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.)
DISPOSITION
As to Jose Anguiano, the judgment is affirmed. As to Armando Gonzalez, we vacate one multiple-murder special-circumstance finding and otherwise affirm the judgment.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.