Opinion
E038223
12-4-2006
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN L. FERNANDEZ, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Joaquin L. Fernandez appeals his conviction for second degree murder in violation of Penal Code section 187, subdivision (a). Defendant argues his conviction should be reversed because there is insufficient evidence to support the jurys verdict. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
The victim in this case was murdered on January 29, 1994. Defendant was originally tried and convicted in 1995 of second degree murder and conspiracy to commit murder. On appeal, the conviction for conspiracy to commit murder was reversed due to insufficient evidence of the requisite intent. Thereafter, defendant filed a writ of habeas corpus in federal court, and the Ninth Circuit reversed the murder conviction on constitutional grounds pursuant to the Supreme Courts decision in Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]. Defendant was then retried beginning April 19, 2005.
At the second trial, there was inconsistent testimony, but the evidence was consistent enough to garner the following facts: Defendant, who is also known as Silent, was a member of a gang called Los Asesinos (Assassins). On the night of the murder, defendant drove fellow gang members to the La Sierra area of Riverside in his two-door, gray "`primered" Buick Regal. Other gang members in the car included Mario Reya (aka Mugsy), Rudy Cardenas (aka Chico), Juan Botella (aka Aztec), and Robert Arce (aka Negro). During the drive, they also picked up two girls, S.M., an 11- or 12-year-old runaway, and A.N., who was also a runaway. Other members of the Assassins were cruising in the same area in a different car.
During their drive, defendant and his friends encountered members of a rival gang known as La Sierra Riva Brown Knights (Brown Knights), including Tony Salazar, the victim, Ralph Magana, Phillip Martinez, and Rene Romero. The Brown Knights were all traveling on foot. The groups yelled at each other, exchanged threats and insults, and called out their respective gang names. The Brown Knights ran, and the Buick Regal followed. The Buick Regal stopped in the middle of the street, and some or all of the Assassins got out and chased the Brown Knights. The two girls stayed in the car. The Brown Knights ran, and all except Salazar found a place to hide. Salazar kept running, and at least three of the Assassins chased him on foot. After a short time, the Assassins who chased Salazar returned together and got back into the car.
Because of their connection to issues of knowledge, intent, and culpability, the most notable inconsistencies in the testimony relate to the conversations among the Assassins and the girls in the Buick Regal just prior to and just after the attack on Salazar. There was also inconsistent testimony as to: (1) which of the Assassins actually got out of the car to chase the Brown Knights; (2) who had blood on his hands following the attack; and (3) who was responsible for throwing the knife out of the car after the attack.
Witness Mary S. testified she was awakened by noise and went to the window of her house. She told police she saw three or four males on top of another male and they appeared to be hitting and kicking him. She also saw a car pull up in front of her house and a bunch of kids getting into the car, which then sped away. She called 911 after seeing Salazar walk and then collapse on her front lawn. The Brown Knights heard Salazar yelling and came out of hiding. They found him lying on the ground gasping for breath, so they tried to help. Police and paramedics arrived shortly thereafter.
The coroner identified seven stab wounds and other superficial injuries and testified the cause of death was a stab wound to the heart. He also indicated this type of wound is "rarely survivable," and the victim would have died within a few minutes after the wound was inflicted. There was evidence suggesting the fatal wound was inflicted prior to other stab wounds. He concluded the wounds were most likely inflicted with a single knife, and the knife was approximately three and one-half to four inches long and three-quarters of an inch wide.
The defense position at trial was that: (1) the witnesses were not credible; (2) the evidence indicated defendant did not get out of the car and only assisted in the assault as the getaway driver; (3) defendant did not know anyone in the car had a knife; (4) defendant did not intend to kill the victim; and (5) the victims murder was not a natural and probable consequence of the assault.
DISCUSSION
Defendant contends his murder conviction should be reversed because there is insufficient evidence to establish he is guilty of second degree murder. "It is the prosecutions burden in a criminal case to prove every element of a crime beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368].) "To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the `substantial evidence test. Under this standard, the court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas, supra, at p. 260, quoting People v. Johnson (1980) 26 Cal.3d 557, 578, italics added.)
According to defendant, he was prosecuted for second degree murder based on three different theories of liability: (1) direct liability as the perpetrator of the stabbing; (2) vicarious liability as an aider and abettor to an assault with a knife; and (3) vicarious liability as an aider and abettor to an assault by means likely to cause great bodily injury. Defendant argues the evidence is insufficient as to all three theories. He further contends there is insufficient evidence to establish the murder was a foreseeable consequence of the assault.
In his closing argument to the jury, the prosecutor acknowledged defendant was probably not the one who stabbed the victim. The prosecutor said in all likelihood it was Aztec who stabbed Salazar. The People made the same acknowledgment in their appellate brief. In other words, the People are not taking the position defendant is guilty of murder because he was the one who actually stabbed the victim. Rather, the People contend there is substantial evidence in the record from which a rational jury could have found defendant guilty of second degree murder as an aider and abettor to an assault with a deadly weapon or by means likely to cause great bodily injury. The People also contend the victims murder was the natural and probable consequence of the gang attack. We therefore evaluate the evidence based on aider and abettor principles.
An aider and abettor "may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the `natural and probable consequence of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261.) To apply the "natural and probable consequences" doctrine to aiders and abettors, "[t]he jury must decide whether the defendant (1) with knowledge of the confederates unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendants confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated." (Id. at p. 267.) "[I]t is a question of fact whether the charged offense was a natural and reasonable consequence of the target offense knowingly encouraged . . . ." (People v. Godinez (1992) 2 Cal.App.4th 492, 499.)
Here, the two possible target offenses are defined by Penal Code section 245, subdivision (a)(1), which prohibits "assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." A "deadly weapon" is "any object, instrument, or weapon which is used in such manner as to be capable of producing and likely to produce death or great bodily injury." (Notes of Decisions, 48 Wests Ann. Pen. Code (1999 ed.) foll. § 245, p. 143, note 10.) "[A] `deadly weapon within the meaning of [Penal Code] section 245 must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons . . . ." (People v. Aguilar (1997) 16 Cal.4th 1023, 1034.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
Defendant claims there is insufficient evidence he aided and abetted an assault with a deadly weapon because there is an absence of evidence indicating he knew anyone in his group was carrying a weapon and because there is also testimony suggesting he did not know about the knife. For example, defendant cites testimony by Detective Terry Redfearn in which he states A.N. told him defendant was reluctant to go after the Brown Knights because "`we dont have nothing. We dont have a gun or anything." According to A.N., another member of the Assassins then said, "`Dont worry about it. Well just hit him." A.N. also told Detective Redfearn defendant or someone else in the car expressed surprise after the attack when the perpetrator said he stabbed the victim. In addition, defendant cites testimony by Rudy Cardenas (aka Chico), who was one of the other Assassins in defendants car. Cardenas testified the Assassins thought the Brown Knights had guns. However, when viewed in context, this statement by Cardenas does not necessarily support defendants argument. Cardenas also testified the Assassins riding in defendants car decided to chase the Brown Knights anyway, suggesting they probably concluded the Brown Knights had no weapons when they ran away.
Despite defendants arguments to the contrary, there is other evidence in the record from which a jury could have reasonably inferred defendant did know about the knife and did intend to facilitate an assault with a deadly weapon. Defendant was cruising in a rival gangs territory while threats and insults were exchanged with rival gang members. At this time, there was conversation in the car among the Assassins indicating they were going to "get" the Brown Knights and "take care of business." The gang experts testimony indicates it is likely the Brown Knights ran from the Assassins because they believed the Assassins had a superior weapon or weapons. Witnesses stated defendant pursued the Brown Knights by following them in his car and was one of the Assassins who got out of the car to chase the Brown Knights, suggesting he believed his own gang was in a superior position because he knew at least one of them was carrying a weapon. "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (Ibid.) Thus, it is possible the jury resolved any conflicting evidence on this theory of liability against defendant.
Even if the evidence did not support a finding defendant intended to facilitate an assault with a deadly weapon, we would uphold the conviction based on the prosecutions third and final theory that defendant intended to facilitate an assault by means likely to produce great bodily injury. Defendant does not seriously dispute there is sufficient evidence to demonstrate he intended to facilitate an assault by means likely to produce great bodily injury. Rather, defendant argues the evidence is insufficient to establish murder was a natural and probable consequence of the attack on the victim because the victims other injuries were only "superficial," absent the knife wounds. Absent the use of the knife, defendant contends "it is a borderline case whether the assault was likely to produce great bodily injury." We disagree.
Witness Mary S. told police she saw three or four males on top of one male, and they appeared to be hitting and kicking him. Her testimony alone is evidence of an intent to inflict more than superficial injuries. "Abrasions, lacerations, and bruising can constitute great bodily injury." (People v. Jung (1999) 71 Cal.App.4th 1036, 1042.) "[T]he use of hands or fists alone may support a conviction of assault `by means of force likely to produce great bodily injury . . . ." (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) As outlined above, there was also conversation in the car among the Assassins indicating they were going to "get" the Brown Knights and "take care of business." When they returned to the car, the Assassins said "[w]e fucked him up" and "we got him." In addition, Detective Redfearn, a gang expert and the lead investigator on the case, testified about gang subculture, including the violent and territorial nature of gangs. He testified it is a challenge and sign of disrespect for members of one gang to go into the territory of a rival gang and shout out their gang name or gang slogans. In this case, he said it was significant that the victim, who was on his own turf, yelled back the name of his own gang to claim his turf and to stand up for his territory. Such confrontations are typically resolved through violent encounters, in which members of one gang attempt to gain superiority and respect by killing members of the rival gang.
Other appellate courts have upheld convictions based on similar circumstances in the context of gang attacks. (People v. Montes (1999) 74 Cal.App.4th 1050, 1056 ["When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them"]; People v. Godinez, supra, 2 Cal.App.4th at p. 500 [it is "common knowledge that an unfortunate reality of modern times is that gang confrontations all too often result in death (which jurors are entitled to consider)"]; People v. Montano (1979) 96 Cal.App.3d 221, 227 ["The frequency with which such gang attacks result in homicide fully justified the trial court in finding that homicide was a `reasonable and natural consequence to be expected in any such attack"].) Although defendant attempts to distinguish these cases, the distinctions he raises are not enough to persuade us the conclusions are irrelevant, and we see no reason to depart from their reasoning. Based on the foregoing, we conclude substantial evidence supports the jurys verdict.
DISPOSITION
The judgment is affirmed.
We Concur:
McKINSTER, J.
KING, J. --------------- Notes: In a footnote, defendant requests judicial notice of the record in the prior appeal. Counsel is reminded that requests for judicial notice should be made in a separate motion. (Cal. Rules of Court, rule 22(a)(1).) Defendants request is granted in part as to the opinion in the prior appeal, but denied in part because the remainder of the record in the prior appeal was not necessary to the determination of this appeal.