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People v. Bautista

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 5, 2012
G044045 (Cal. Ct. App. Jan. 5, 2012)

Opinion

G044045

01-05-2012

THE PEOPLE, Plaintiff and Respondent, v. HECTOR ACOSTA BAUTISTA, Defendant and Appellant.

Nancy L. Tetreault, under appointment by the Court of Appeal, and Paul Tetreault for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 06WF2923)


OPINION

Appeal from a judgment of the Superior Court of Orange County, J. Michael Beecher, Judge (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed as modified.

Nancy L. Tetreault, under appointment by the Court of Appeal, and Paul Tetreault for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant of two counts of assault with a deadly weapon, street terrorism, and conspiracy to commit murder. It found true enhancement allegations for crimes committed for the benefit of the West Trece criminal street gang and the intentional discharge of a gun by a principal to a crime. The trial court sentenced appellant to a total term of 55 years to life.

On appeal, he contends the trial court erred by admitting evidence of his interview with police detectives because the detectives failed to advise him of his Miranda rights. He also challenges the sufficiency of the evidence to support his conviction for conspiracy to commit murder. We find neither contention persuasive and affirm the convictions. However, both parties agree the court imposed an unauthorized sentence that requires a modification of the judgment. We agree. As modified, the judgment is affirmed.

I


FACTS

Around 8:00 p.m. on September 19, 2006, Jesse Niutapuai came out of his family's Westminster residence when he heard some noise coming from their front yard. As he walked outside, Jesse saw seven or eight Hispanic men standing on the sidewalk directly in front of his house. Jesse thought they were gang members because they had shaved heads and wore baggy pants and white shirts. One of the men asked Jesse where he was from, but Jesse did not know this was a common way for gang members to determine gang affiliations and he laughed in response. The man angrily responded that it was no joke and Jesse went back inside his house. One of Jesse's four brothers, Justin, went outside and started to argue with the men. Jesse heard someone yell, "West Trece."

The commotion brought out Jesse's three older brothers. The Hispanic men took off down the street with the five Niutapuai brothers in pursuit. They caught one of the men, Luis Monroy, pummeled him, ripped his shirt and removed his shorts. Monroy ran to his West Trece gang friends, punched them for leaving him, and then they all left the area.

Fifteen or 20 minutes later, 15 to 20 older West Trece gang members appeared in front of the Niutapuai home. The brothers again came outside to confront the men and to "protect" their home. Some of the gang members were yelling "West 13" and asking the brothers where they were from while another gang member pulled out a plastic pipe and threw it at them. Jimmy Niutapuai picked up a barbell and threw it at the gang. Then one gang member, Robert Muriel, emerged from the crowd, drew a gun from his waistband, aimed it at the Niutapuai brothers, and fired two shots before his gun jammed. The brothers dropped to the ground and the gang members fled the scene. Muriel missed his aim and the two shots went into the dirt in front of the Niutapuai brothers.

Muriel was arrested on October 18, 2006. A search of Muriel's home yielded photographs of West Trece gang members, including appellant, gathered at a park near the Niutapuai home, and known to be claimed by the gang taken just 20 minutes before the shooting. Muriel called several West Trece gang members from jail, including appellant, and his calls were recorded. Muriel told appellant the police were looking for the gun and instructed him to get rid of it. Appellant explained to Muriel that he planned to disassemble the gun with a torch. Muriel told appellant it would be better to go to the end of a pier and throw it into the ocean. He complained "everyone is pointing their fingers at me" because the police had confiscated his computer and photo albums which contained photographs of West Trece gang members.

Gang Expert Testimony

Westminster Police Detective Edward Esqueda, a 10-year veteran of the Westminster Police Department and an investigator for the department's Gang Unit, knew appellant from his work in gang suppression. The department's gang unit consisted of Esqueda, Detective Timothy Walker and a supervising sergeant. In his two years in the Gang Unit, Esqueda talked to "countless numbers" of self-admitted gang members and associates, investigated numerous gang-related crimes, testified as a prosecution expert on criminal street gangs, and written over ten search warrant affidavits in gang-related cases.

One of the gangs Esqueda monitors is the West Trece criminal street gang. He testified that the West Trece gang started as a 1960's car club. According to Esqueda, the gang is a Hispanic street gang with more than 40 active members, and it uses the symbols "West 13," "WX," and "WX3." The gang claims a specific geographical area in Westminster that includes Sigler Park, and has smaller subgroups or cliques, one of which, the Tiny Locos or "TLX" was involved in this shooting.

Esqueda explained the gang's culture and philosophy to the jury. He testified respect and reputation are "the cornerstones for the creation and the growth of the gang." The way to earn respect and gain a reputation, according to the gang members, is to commit violent, criminal acts. Furthermore, gang members respond to acts against them with an escalation in the violence. "Mad-dogging," or simply looking at a gang member without averting your eyes, is perceived as a challenge and an act of disrespect and for gang members, "no disrespect ever goes unanswered." If an act of disrespect occurs in the gang's territory, it will result in a violent reaction, particularly if it occurred in the gang's claimed turf.

Gang members are supposed to provide backup for each other and if they do not, Esqueda would expect them to be "taxed" or punished. Esqueda also explained that gang members yell out the gang's name during the commission of crimes to instill fear in the victim or witnesses. A "hit up" is a question and a challenge to a perceived rival gang member. Individual gang members hit up people by asking them, "where you from." Payback is a retaliatory act against someone who has insulted the gang. Esqueda further explained that any gang member who spoke to the police would be considered a rat, and that doing so is "[v]ery serious, especially if somebody is arrested as a result of that information being provided."

In 2006, the West Trece gang and the Samoan gangs "USO LUV" and "Royal Samoan Posse" were bitter rivals, and the West Trece gang members considered anyone of Samoan descent to be a rival. Esqueda testified the primary activities of the West Trece gang to be "hanging out at Sigler Park," the park near appellant's home, and committing crimes like assault with a deadly weapon, murder, robbery, and felony vandalism. He also testified to five predicate crimes, a 1999 murder by West Trece member Daniel Pavon, a 2005 attempted murder involving a Samoan gang, a 2005 assault with a deadly weapon on suspected rival gang members, a 2004 robbery, and a 2004 attempted murder.

Esqueda identified appellant as a self-admitted member of the West Trece criminal street gang who uses the moniker "Speedy." Esqueda also knew Muriel, who went by the moniker of "Mono." Muriel is a well-documented member of West Trece, and he has several West Trece tattoos. Muriel is also considered the leader or "shot-caller" of the Tiny Locos clique. Esqueda also testified that Monroy, also known as "Risky," is a hardcore member of Tiny Locos. A hardcore member gains great respect for "using a gun in support of the gang." Esqueda defined a gang gun as a gun the gang members pass around and use to commit violent crimes. In Esqueda's opinion, the instant crimes were committed for the benefit of the West Trece gang because the gang gained respect during an act of retribution, a shot-caller used a gun to commit the crime, and the younger members who failed to backup Monroy had been taxed or beaten in front of other gang members.

Appellant's Interview

On November 10, 2006, Esqueda spoke with appellant outside his home and asked him if he would be willing to come to the police department to talk about "an incident." Esqueda did not explain what "incident" he was talking about, but appellant agreed to come to the station the following week.

On November 14, appellant had a family member drive him to the police station sometime after 4:00 p.m. He waited for about two hours before Esqueda escorted him to an interview room. Appellant started the interview by complaining about the wait. Esqueda thanked appellant for waiting then asked, "So what's new, man?" Appellant said, "Not much." Esqueda and appellant talked about appellant's impending move from his home near the location of the shooting. Esqueda asked if appellant liked the area where he lived and appellant replied, "Not really." And, he complained about all the crime in the area. Esqueda and appellant discussed his job situation and finances before Esqueda told him, "Hey, just so you know, man. You're not in custody. You're not under arrest, anything like that. Okay?" Appellant replied, "Yeah." Esqueda said, "I'm just here to talk to you about something. You know, this is a voluntary decision on your part to talk to me. I appreciate your cooperation on this." Appellant again replied, "Yeah." Esqueda explained, "[t]he door[']s not locked. You're free to leave at any time. Okay?" Appellant said, "Yeah." Esqueda also told appellant that he wanted to talk "about something that . . . could potentially get [appellant] into trouble," and again appellant replied, "Yeah."

Esqueda then asked appellant if he had talked to Muriel after his arrest. Appellant said he had visited Muriel in jail and Muriel looked "freaked out." Appellant denied having a close relationship with Muriel, but admitted they were "friends." Esqueda asked if appellant knew "what happened," and appellant denied knowing anything other than that Muriel was being held on attempted murder charges. He repeatedly denied talking to Muriel by telephone and claimed to know nothing about the gun used in the shooting.

After giving appellant several ample opportunities to admit he spoke with Muriel by telephone, Esqueda played a tape recording of their conversation for appellant. Appellant then admitting lying about the telephone call, but said he did not want to get caught "snitching" by other West Trece gang members. Esqueda urged appellant to be honest with him because "[b]eing a liar from this point on would make it a lot worse." When appellant continued to express concern about retaliation for talking to police, Esqueda promised he would not "tell anybody that I had this conversation with you." Appellant also expressed concern that Esqueda was trying to "bust" him, but Esqueda replied, "If I wanted to bust you, I would have busted you."

Interspersed throughout this line of questioning, Esqueda asked appellant about the gun. However, while appellant admitted Muriel wanted him to dispose of the gun, he steadfastly denied ever receiving it from anyone. Esqueda offered appellant some water and candy at one point before he asked appellant where he had been on the night of the shooting. Appellant claimed to have been at work the night of the shooting and again asserted he knew nothing about what happened at the park down the street from where he lived.

Detective Walker joined Esqueda after a few minutes. Walker emphasized the seriousness of the charges against Muriel before telling appellant "[t]hat's why it's real important here, when we come into here and talking to you. We just didn't come out there and arrest you. Okay? We're bringing you in here to talk to you about stuff, but we expect one thing. And what do you think that is?" Appellant said he thought it was to say "what [the detectives] want to hear," but Walker quickly responded, "No, no, no, no, no. That's just not it -- not what we want to hear okay? I want the truth." After this admonition, appellant admitted he knew Muriel wanted him to dispose of the gun used in the shooting. He also admitted the shooting was an act of retaliation after the Niutapuai brothers beat up Monroy.

After a few minutes with Walker, appellant threatened to "walk out" because he did not like the way Walker talked to him. He also chided Walker for his strong approach, but he did not leave and said he understood the seriousness of his situation. Walker later explained that they were still investigating the crime and he just wanted to know if Muriel could claim self defense. Appellant said Muriel told him "they came at him with machetes and bats."

Walker left the room a short time later and appellant said to Esqueda, "I thought you - you told me it was just going to be me and you." Esqueda explained that he and Walker work together. Walker rejoined them and continued to question appellant about Muriel's statements. Appellant said Muriel admitted shooting the gun but told appellant he only intended to scare the Niutapuai brothers. Appellant then said he understood that shooting and missing was like "trying to kill somebody."

Walker asked appellant if he had any questions and appellant said, "Uh, am I being arrested?" Walker said the interview was not over and they were going to discuss "this issue." Appellant asked for how long and Walker said "we won't be much longer at all." He also explained that they were waiting for a photograph of Muriel to confirm they were talking about the same person. While they waited, Walker and appellant talked about why the West Trece criminal street gang had "such [a] problem with the Samoans . . . ." Appellant explained that two years before the shooting there had been a fight between a group of 14 Samoans and four or five West Trece gang members at the park claimed by the West Trece gang.

Appellant positively identified Muriel from a photograph, and confirmed that Muriel was the person who shot at the Niutapuai brothers. Walker and Esqueda left the interview room to "discuss some things" and said they would not take long. Appellant complained that he had plans for the day, but Walker assured him the interview would not last much longer. When the detectives returned to the interview room, Walker told appellant he had one last opportunity to tell them the whereabouts of the gun Muriel used. Appellant told them the gun was gone, but did not elaborate. Esqueda reminded appellant that he had already told them someone was supposed to meet him at a park and give him the gun, but that the person had never come. When appellant denied knowing the identity of the person, Esqueda said, "[b]ut we know that you know." Appellant replied, "Yeah." Esqueda asked for the person's name and appellant told them it was another West Trece gang member named Luis Monroy.

Walker asked appellant what Monroy had said about the reasons for getting rid of the gun. Appellant could not or would not give the detective specific statements, but he did assume Monroy needed to dump the gun because "[w]ithout the gun . . . there's no evidence on that crime." Walker then asked questions about appellant's cell phone and informed him they could use the phone to determine his location at the time of the shooting. This series of questions prompted appellant to admit he had been at home at the time of the shooting and not at work. However, appellant claimed he heard about the shooting from someone else. Walker again emphasized the importance of appellant telling him the truth by saying he did not know if appellant was a witness to a crime, a victim of a crime, or a suspect.

At this point, appellant explained what triggered the shooting. He said, "what it all started with was [Monroy] getting beat up by the Samoans . . . ." When Monroy complained to Muriel about what happened, Muriel told him to get the gun. Walker said, "I'm asking you one last time to tell me the truth about what you saw at the actual crime scene. Okay?" Appellant responded, "You think I was there?" Walker replied, "Hector." Then appellant said, "All right. Look I know he shot twice. I know he shot twice and missed twice. And after that, the gun - the - the gun jammed on him for some reason. I know that. I know it jammed on him, you know." Walker asked what Muriel did when the gun jammed and appellant replied, "Oh, I don't know. He like, 'Oh, get this shit rid of,' you know. Like he - he told - he said, 'Get this shit out of here,' you know." Walker asked appellant where he had been when he heard Muriel's exclamation, but appellant again denied being at the scene and claimed someone told him about it. Walker expressed his disbelief and started asking appellant for details about where he was before, during, and after the shooting.

At first, appellant claimed he had been inside his house at the time of the shooting and only heard about it. Then he claimed he heard the shots, but did not go outside his house. Finally, he claimed he heard the shots from inside his house, but left the house afterward. Esqueda again admonished appellant to "tell the truth." Appellant said, "You know, I don't want anything - anything to happen to my family that - you know." Walker presented appellant a map of the area and asked where he had been. Appellant pointed to an intersection close by the park and said, "I live right here." Although he also placed Muriel and Monroy in the area, he claimed they were down the street and away from him. Appellant again explained the reason for the shooting, but added that Monroy had thrown a bat at the Niutapuai brothers. Walker asked appellant if he knew someone could have gotten killed and appellant replied, "that's true."

At this point, appellant started talking about his current job situation and desire to be a chef and business owner. Appellant also said he had only been with the West Trece gang for a year. Appellant identified a few other West Trece gang members who were at the shooting, and said Muriel and Monroy were fellow gang members and best friends. He admitted that Monroy came to his home after the shooting with the gun in pieces, and later admitted he watched Monroy disassemble it and offered suggestions about getting rid of it. Although appellant initially denied knowing what type of gun was used, at this point in the interview, he admitted it was a Smith & Wesson revolver.

Appellant asked if he could go the restroom. Walker continued to question appellant for a few minutes and then took a break so that appellant could use the restroom. When appellant left the interview room, Walker said to Esqueda, "We got him good now for conspiracy . . . ." Appellant returned to the interview room and said he needed to leave to meet his girlfriend. The detectives asked if he could answer a couple more questions and appellant said he would "cooperate." Appellant said he did not want to get in trouble, but he understood that he "did wrong." Walker acknowledged appellant's cooperation, but also said appellant had not told them the whole truth. Walker accused appellant of being closer to the shooting than he had previously claimed. Appellant replied, "All right. I was a little further down the street." Later, he admitted he was 10 or 15 feet away from Muriel and close enough to back up his fellow gang members. He told the detectives he thought he could be "busted right now," and admitted he knew Muriel had a gun before the shooting and that there was the possibility Muriel could kill someone. He named several other gang members who were present and talked to Esqueda about paying his bills and being in debt.

Walker asked if he and Esqueda could leave the interview room and discuss something. Appellant said he wanted to leave and then asked if he was "going to be arrested[,]" and the interview was over.

II


DISCUSSION

Miranda

Appellant contends the trial court erred in admitting his police statements into evidence because the officers took his statement without giving the standard Miranda advisement. As appellant concedes, the issue was waived because counsel failed to object. (People v. Farnam (2002) 28 Cal.4th 107, 153.) Alternatively, appellant claims his attorney was ineffective for failing to seek exclusion of his police statements. However, this claim is also meritless.

The burden of proving a claim of ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) As a threshold matter, the defendant must show his attorney's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) The failure to make futile motions does not constitute deficient performance in this regard. (People v. Thompson (2010) 49 Cal.4th 79, 122.)

Under Miranda, "a person questioned by law enforcement officers after being 'taken into custody or otherwise deprived of his freedom of action in any significant way' must first 'be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' [Citation.] Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial. [Citations.] An officer's obligation to administer Miranda warnings attaches, however, 'only where there has been such a restriction on a person's freedom as to render him "in custody."' [Citations.] In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citations.]" (Stansbury v. California (1994) 511 U.S. 318, 322.)

Appellant claims, "[o]nce the police obtained enough evidence for a single arrest, appellant was no longer free to leave. At that point, his interrogation became custodial." Assuming this "point" occurred when appellant left the interview room to use the restroom and in his absence the detectives agreed, "[w]e got him good now for conspiracy and attempt to conspire," these facts do not necessarily change a voluntary interview into a custodial interview. The fact of overriding importance here is that the officers never communicated to appellant their conclusion they "had him" for conspiracy. He did not know the tenor of the interview had changed.

Throughout the interview, appellant's familiarity with Esqueda and Walker is readily apparent. The video recording of the interview shows him relaxed, sometimes joking with the officers, and quite cooperative. He did not appear tense or fearful at any time, and the officers took no steps to prevent him from leaving other than asking him to stay. Consequently, from our review of the video recording and the transcript, we conclude the interview started as a voluntary encounter and nothing morphed it into a custodial interrogation. As the officers told appellant, they were investigating the crime. One legitimate way to conduct an investigation is to question people the officers believe have information. Appellant, as an admitted West Trece gang member who lived near the scene of the shooting was an obvious choice. "Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.' [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 402.) Even though the detectives falsely told appellant they knew more about the shooting than he did, it is neither uncommon nor unconstitutional for the police to confront a suspect with false information. (Bobby v. Dixon (2011) ____ U.S. ____; People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) The fact the police use a ruse to elicit information has nothing to do with whether appellant was in custody for purposes of the Miranda rule. (California v. Beheler (1983) 463 U.S. 1121, 1123-1125; Oregon v. Mathiason (1977) 429 U.S. 492, 495.)

Appellant primarily relies on Missouri v. Seibert (2004) 542 U.S. 600 (Seibert) to argue his position. However, his reliance on Seibert is misplaced. In Seibert, Patrice Seibert's 12-year old son Jonathan died in his sleep. In an attempt to avoid problems, she and her two teenage sons decided to burn the family's mobile home and incinerate Jonathan's body in the process. They also planned to leave, Donald, a mentally ill teenager who lived with the family in the mobile home with Jonathan to avoid any appearance that Jonathan had been unattended. One of Seibert's sons set the fire and Donald died. (Seibert, supra, 542 U.S. at p. 604.)

Five days later, the police arrived at 3:00 a.m. at the hospital where Seibert's son was being treated for burns and arrested her. They took Siebert to the police station, interrogated her for about 40 minutes, and accused her of planning to kill Donald in the process of burning her home, all without giving her Miranda warnings. (Seibert, supra, 542 U.S. at pp. 604-605.) When Seibert admitted intending for Donald to die in the fire, the police gave her a 20-minute coffee and cigarette break, administered Miranda warnings, and got her to repeat the admission that she knew Donald was supposed to die in his sleep during the fire. (Seibert, supra, 542 U.S. at p. 605.) Plus, the interrogation officer said he "made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.'" (Id. at pp. 605-606.)

The Seibert court addressed "police protocol for custodial interrogation." (Seibert, supra, 542 U.S. at p. 604, italics added.) And, the court condemned what it called a two-step interrogation technique. (Ibid.) On this issue, the court concluded, "this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement," and it held "a statement repeated after a warning in such circumstances is inadmissible." (Ibid.) The reason is simple. As the court noted, custodial interrogations of this nature "reveal a police strategy adapted to undermine the Miranda warnings." (Seibert, supra, 542 U.S. at p. 616, fn. omitted].)

Despite appellant's thorough discussion of Seibert, a detailed analysis is not required because the facts here raise none of the same concerns. Appellant provides no evidence Esqueda and Walker questioned him in an effort to circumvent Miranda warnings. In fact, appellant was not arrested and transported to the police station. Rather, he voluntarily came to station with full knowledge the officers intended to question him about the shooting. The officers advised appellant that he was not obligated to talk to them and he was free to leave at any time. The officers did not accuse appellant of involvement in a crime. Rather, they told appellant they were conducting an investigation, and so advised, appellant agreed to speak to the officers. Because appellant voluntarily agreed to come to the station and voluntarily agreed to be interviewed, he was not in custody for Miranda purposes when the interview commenced. (People v. Stansbury (1995) 9 Cal.4th 824, 828, 831-832; Green v. Superior Court (1985) 40 Cal.3d 126.) Therefore, the detectives were not required to read him his Miranda rights. In sum, in this case the police did not, as in Seibert, employ a two-step interrogation strategy intended "to undermine the Miranda warnings." (Seibert, supra, 542 U.S. at p. 616 [plurality opn.].)

Taking all the circumstances into consideration, including the fact appellant voluntarily went to the police station, voluntarily agreed to be interviewed, and was never told he had become a suspect, we believe that up until the point where appellant was formally arrested at the conclusion of the interview, he was not restrained to the degree associated with a formal arrest. Therefore, he was not in custody for Miranda purposes, and his statements were properly admitted into evidence. (See People v. Moore, supra, 51 Cal.4th at pp. 398-404 [defendant not in custody during stationhouse interview that turned highly accusatory, lasted an hour and 45 minutes, and culminated in defendant's arrest].) Under these circumstances, it is axiomatic that defense counsel was not ineffective for failing to challenge their admission under Miranda.

Sufficiency of the Evidence

Appellant claims there is "no evidence of any agreement between appellant and the other members of West Trece, to kill the Niutapuai brothers." Consequently, he contends insufficient evidence supports the conviction for conspiracy to commit murder. In deciding such claims, an appellate court reviews the entire record in the light most favorable to the judgment 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. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Kipp (2001) 26 Cal.4th 1100, 1128.) "The jury, not the appellate court, must be convinced of guilt beyond a reasonable doubt; for us, '[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citation.]" (People v. Vu (2006) 143 Cal.App.4th 1009, 1024 (Vu).)

"A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. [Citations.]" (Vu, supra, 143 Cal.App.4th at p. 1024.) "The elements of conspiracy may be proven with circumstantial evidence, 'particularly when those circumstances are the defendant's carrying out the agreed-upon crime.' [Citations.]" (Id. at pp. 1024-1025.) "To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, 'a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.' [Citation.]" (Id. at p. 1025.)

To convict of conspiracy to commit murder, the prosecution must prove the intent to kill, which may be established by circumstantial evidence. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Here, the evidence of a conspiracy to commit murder, although not overwhelming, is sufficient to support the judgment.

Esqueda provided a backdrop for this particular shooting that involves gang rivalries, culture, and common modes of operation. West Trece gang members are rivals to members of Samoan gangs and Samoans in general. On this day, Monroy was beaten and humiliated by the Niutapuai brothers in an area claimed by the West Trece gang. Some younger West Trece members failed to backup Monroy, which left him vulnerable and outnumbered. Monroy complained to Muriel, the leader or shot-caller of the Tiny Locos clique of West Trece, and Muriel ordered the youngsters to be taxed and Monroy to get a gun. Twenty minutes later a group of around 15 West Trece gang members surrounded the Niutapuai home. Muriel had a gun, Monroy had a bat, and the rest of the gang members were backup for the other two. As appellant admitted during his interview, he knew something would happen and that Muriel's possession of a gun meant someone could be killed. Of course, Muriel is either a bad shot or he only wanted to scare the Niutapuai brothers, but the jury was free to accept the former and reject the later. (People v. Williams (1992) 4 Cal.4th 354, 364.)

Moreover, appellant readily admitted helping a fellow gang member break up and dispose of the gun, lied about his involvement in this act, and initially lied about knowing what Muriel planned to do at the Niutapuai brother's home. "'[T]here can be no question that evidence of such falsehoods is admissible as indicating a consciousness of guilt.' [Citation.]" (Vu, supra, 143 Cal.App.4th at p. 1029.) Appellant told Esqueda and Walker he had been at work, and then admitted being at home, and eventually admitted participating in the shooting with full knowledge Muriel intended to kill. The evidence is sufficient to sustain a conviction for conspiracy to commit murder.

Sentencing

The jury convicted appellant of two counts of assault with a deadly weapon (counts 1 & 2). Both counts had enhancements for crimes committed for the benefit of a criminal street gang. The court imposed concurrent terms on counts 1 and 2, but consecutive terms for their related enhancements. The parties agree this constitutes an unauthorized sentence. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) A gang enhancement is not a separate crime and may not be sentenced as such. (Id. at p. 1310.) Consequently, we modify the judgment to reflect the imposition of concurrent terms for the gang enhancements attached to counts 1 and 2.

III


DISPOSITION

The clerk of the court is directed to modify the abstract of judgment to reflect the imposition of concurrent terms for each of the gang enhancements attached to counts 1 and 2. As modified, the judgment is affirmed.

BEDSWORTH, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.

(Miranda v. Arizona (1966) 384 U.S. 436.)


Summaries of

People v. Bautista

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 5, 2012
G044045 (Cal. Ct. App. Jan. 5, 2012)
Case details for

People v. Bautista

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HECTOR ACOSTA BAUTISTA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 5, 2012

Citations

G044045 (Cal. Ct. App. Jan. 5, 2012)

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