Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF055962. Richard A. Erwood, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant, Juan Carlos Flores.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant, Noel Santiago Garza, Jr.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendants, Juan Carlos Flores and Noel Santiago Garza, of first degree murder (Pen Code, § 187, subd. (a)), which was committed for the benefit of a street gang (§ 186.22, subd. (b) and during which a principal used a firearm (§ 12022.53, subd. (e)) and active participation in a street gang (§ 186.22, subd. (a)). They were sentenced to prison for two terms each of 25 years to life and appeal, making various contentions, all of which we reject. We therefore affirm their convictions while directing the trial court to amend their abstracts of judgment to correct errors therein.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
To briefly summarize the facts concerning the murder, which will be set forth in more detail in the discussion of the issues, on June 7, 2006, Barrio Dream Home (B.D.H.) member Jose and his fellow gang members, Flores and Garza, were drinking at a park in the heart of their gang turf with, inter alia, the victim, a member of At Large (A.L.), another gang. The victim wrote the name of the A.L. gang on the park’s gazebo, and while he was temporarily away, Jose crossed it out and wrote B.D.H.’s name next to it. When the victim returned to the gazebo, Jose told him that he had previously told him not to tag his gang’s name and that what he did was disrespectful. The two engaged in more than one physical fight, during which the victim clearly got the better of Jose. After the fights ended, the victim taunted Jose. Jose walked toward the parking lot of the park, called Garza on a cell phone and had Garza bring to the parking lot his loaded gun, which Garza regularly kept for Jose. Garza arrived at the parking lot of the park in a black truck. Jose took the gun, approached the victim, who was with a man named Edgar, and fired four to five shots, hitting the victim in the back and the arm. The victim went down on one knee and Jose’s brother and Flores ran up and began attacking him. The victim died within a few minutes.
Issues and Discussion
1. Evidence Supporting the Gang Enhancements and Substantive Gang Offense
Although Flores joins in Garza’s arguments to the extent that they benefit him, Garza’s argument here benefits Flores only to the extent that he contends the evidence was insufficient, in general, to support the findings that the murder benefitted the gang. To that extent, we reject Garza’s argument also as to Flores for the reasons stated in the opinion. Garza’s argument that the evidence was insufficient to support the substantive offense or the intent elements of the enhancements is specific as to Garza and, therefore, does not assist Flores.
During an interview a few weeks after the murder, Garza told police that the gun Jose used to shoot the victim belonged to Jose and he had cleaned it for Jose about a week before. He said that the day of the shooting, a scared-sounding Jose had called him from the park and was crying and told him to come to the park. Garza thought that “maybe something got out of hand, somebody rolled up, somebody jumped [Jose], maybe somebody got hit... [¶]... [¶]... someone got hurt, something... bad happened.” Garza got a ride to the park in the black truck and a bloody and beaten Jose walked up to him in the parking lot. Garza asked Jose what had happened and Jose replied, “‘Fuck this fool. Fuck this fool.... Fuck this shit already. I’m tired of this shit. I’m tired of everybody picking on me.’” Jose later approached the victim, who asked him if he wanted more and if he wanted to go again, and began “talking shit” to Jose, and Jose shot the victim. At a point in the interview when Garza was denying that he had brought Jose the gun and insisting that Jose had the gun on his person all along, Garza was asked why Jose would wait until Garza arrived in the parking lot to shoot the victim. Garza replied, “Because he knows I was gonna back him up if anything happened.... [¶]... [¶]... [H]e wouldn’t do something stupid without me being there. [H]e kind of seen me like a protector....” He said he and Jose were like brothers. When Garza was told by the interviewer that several people had seen him give Jose the gun before the shooting, Garza said, “They ain’t gonna say that stuff to my face. [¶]... [¶]... I know that for a fact.” When the interviewer told Garza that the statements these people made were all that was necessary, he replied, “But those statements will end up changing.” Garza then denied that Jose had asked him to bring the gun to the park, explaining that Jose assumed Garza would arrive with it because Garza kept it for Jose and had it on him that day because he intended to return it to Jose. He admitted that when Jose had called him on the former’s cell phone, Jose had, in a very low voice, told him that “some shit just happened” and Garza was to get to the park. When Garza arrived in the parking lot, Jose asked him if he had the gun and Garza took it out of his pocket and Jose grabbed it. Garza said that he asked Jose what had happened, then he saw the victim, and he said to Jose, “Oh man. What happened dawg? What happened?” Jose then walked away from Garza without responding. The victim, who was walking towards a fence at the boundary of the park, changed course after seeing Jose and Garza and began walking towards them. The victim began “talking shit” to Jose, so Garza “jumped back in the truck [and said, ] ‘Let’s go. I ain’t trying to be here, let’s go.’” Garza said, “After I jumped back into the truck... I didn’t even wanna look.” After the shooting, Garza confronted Jose at Jose’s house and told him, “... I can’t believe this stupid shit that you did.” Jose apologized to Garza because Jose knew he had messed up. Garza continued, “... [Jose] kind of knew he fucked up really big. Every time he was with me [his parents] knew I was gonna take care of him so I... only watch gang bang... I don’t bang. [¶]... [¶] I just do what I gotta do. [¶]... [¶] Like, if someone steps up to me I ain’t gonna back down or nothing but I can bang ‘em here. [¶]... [¶] So, I’m not a gang banger. But I ain’t gonna let someone just come up to me and say something wrong.” Garza elaborated further on the consequences of the interaction between Jose and the victim as follows,
“[Garza:] [The victim] fucked up the way that he did and Jose fucked up by shooting. Cause I knew what it was gonna lead to. I knew just him shooting it was gonna cause chaos.
“[Police:] What do you mean cause chaos?
“[Garza:] Like chaos has a history of repeating himself.
[Police:] Meaning Dream Homes?
[Garza:] Yeah.
[Police:] People fighting with people and....
[Garza:] Yeah.
[Police:] People from the same hood accusing each other. Kind of what’s going on now, but you say you knew it was gonna cause that?
[Garza:] Yeah.”
Garza agreed with the interviewer that the victim’s family was probably looking for Jose. He said that Jose and Jose’s brother had both vanished and were probably together. When asked why Jose’s brother would disappear, Garza replied, “[H]e knows that if they can’t get Jose they’re gonna get his brother. [¶]... [¶] You know the rules of engagement.” Garza said that there was a hit out on him by younger members of the Tapia family and “most of the ‘A.L.’” He discussed an incident during which he was shot several times with birdshot during a shooting at a home by someone who had been suspected of shooting others during a number of incidents. He described his reaction immediately after being shot as follows, “I’m just getting more mad and more mad and more mad and then I looked at my shirt and this one just pouring out blood and I was like, ‘Okay, let’s go to the hospital.’”
Another prosecution gang expert testified that the Tapias are related to the Hernandez’s, that the former have “the juice” in the gang world and both were related to the victim.
The prosecution’s main gang expert testified that up until the murder of the victim, B.D.H. had co-existed and, for the most part, gotten along with A.L., but they were now rivals. He opined that Garza was a member of B.D.H. based on the following facts: a poster with B.D.H. indicia on it was found in his bedroom; photographs show him with other B.D.H. members; he was stopped by police 40 yards from a known gang house with a gun and bullet proof vest and he told police that he was “going to [his] homies[;]” he was present, with other B.D.H. members, at a stabbing at a fast food restaurant; he was present at a party with other B.D.H. members where a fatal shooting occurred that was allegedly committed by one of those members; he was photographed with Jose while Jose was flashing a B.D.H. gang sign, and when he was placed into custody for this case, and, again, in 2008, he identified himself to his jailers as a B.D.H. member. The expert opined that the instant murder was gang-related because everyone involved was a member of B.D.H., it was committed in the heart of B.D.H. turf and the shooting was caused by a B.D.H. member being disrespected by being beaten up, which resulted from another gang’s graffiti being crossed out. He reiterated his opinions, both as to whether the murder was gang related and whether Garza acted for the benefit of, the direction of or in association with B.D.H. when given a hypothetical that included much of the evidence adduced at trial.
Edgar, the man who had been with the victim when the latter was shot, told the police that as Flores was attacking the victim, after the victim had been shot, Flores yelled, “Dream Homes.” A self-admitted B.D.H. associate who was at the park during the fights and shooting testified that the victim was a member of A.L. His brother testified that he remembered telling the police that the victim was mad because his A.L. tag had been crossed out and B.D.H. had been written next to it. He testified that Jose had told the victim, “Don’t tag that” and something akin to, “I told you not to do that shit. You disrespected. I don’t do that in your hood.” The case agent testified that this witness had told him that the victim had asked Jose if the victim could tag A.L., Jose had said no, and after the victim had tagged A.L. on the beam of the gazebo at the park and left, Jose crossed it out and wrote B.D.H. next to it and when the victim returned, Jose told him, “I told you not to do that shit. You disrespected me. I don’t do that in your hood” and the fight between Jose and the victim began. In a statement to police, Flores said that Jose was from a gang different than the gang to which the victim belonged. Flores admitted that when he saw the black truck cruise by the park a few times before going into the parking lot, he knew it meant trouble. Flores did not contradict the statement of the police that when he and others discussed the shooting afterwards, they believed that “they’re gonnna come down hard.” Flores also did not contradict the statement of the police that Jose is Flores’s hommie and Jose “brought this much shit down.” Flores was asked by police, “How are you looking at this? Are you guys saying[, ]... ‘[Jose]’s a hom[m]ie.... We’re gonna stand up for what he did or... he stepped over the line that was fuck[i]n’ uncalled for and... he’s gonna pay the price himself on this one[?]” Flores replied, “This was my hom[m]ie. [¶]... [¶] I can’t go against him.” Flores predicted as to the Tapias, A.L. and the victim’s family, “... I know it’s gonna come, ... and the[y’re] gonna start tripping on us, based on we were there. I know the shit’s gonna hit the fan.” He agreed with the police that Jose needed to be gotten off the streets “so this shit doesn’t continue and hopefully it will take some fuel out of the fire with ‘A.L.’ doing anything.... [¶]... [¶]... You guys are gonna have more shit.” He acknowledged, “This has rolled into something that’s gonna be nasty... [¶]... [¶] [f]or everybody.”
See footnote three, ante, page six.
Jose was never found so he could be arrested for the murder.
Another gang expert opined that the shooting was gang-related because crossing out one gang’s tagging and putting up another’s is very disrespectful and generally leads to an immediate fight or reaction. He further opined that it would be disrespectful for a member of A.L. to scratch those letters into the gazebo in the park, which is the heart of B.D.H. turf.
A police sergeant opined that the shooting was a result of a power struggle between gangs—those who claimed A.L., which was a part of B.D.H., and people who did not want to give respect to A.L. gang members.
Garza’s assertion that the gang enhancements and substantive gang offense were supported only by the existence of the poster found in his bedroom and by the testimony of the prosecution’s main gang expert ignores much of the foregoing. Therefore, Garza’s reliance on dicta in People v. Ferraez (2003) 112 Cal.App.4th 925, 931, that the opinion of the prosecutor’s gang expert alone would have been insufficient to find that the charged drug offense was gang related is inapplicable here. The holding of Ferraez was that such opinion, combined with defendant’s admission that he was a member of a gang that was friendly with the gang in whose territory he intended to sell the drugs and he had permission from the latter gang to sell drugs, although he denied selling them for his gang, was sufficient to support the gang enhancement and substantive offense. (Id. at pp. 928, 930.) Rather than supporting Garza’s assertion that the evidence here was insufficient, the holding of Ferraez supports a contrary conclusion.
Garza contends that there was no evidence he knew what was going on at the time he brought the gun to the park. However, Garza’s own statements demonstrated that he was willing at any time to do whatever was necessary to protect his fellow gang member, Jose. He admitted carrying a gun for Jose and preparing it for use by cleaning it for him. His statement that Jose did not need to ask Garza to bring the gun to the park because Jose knew that Garza would have the gun on him suggested that Garza carried the gun for Jose at least on a regular basis. The fact that, after he had been beaten by the victim, Jose spoke to Garza on the phone in a low voice, telling him that “some shit just happened” was a clue to Garza that something bad was afoot. The jury could reasonably infer that once Garza met with the bloody and beaten Jose in the parking lot and Jose took the gun from him, then Garza saw the victim, he knew exactly what was going to happen. Certainly, Garza’s act of jumping back into the black truck and telling the driver to take him out of there and not wanting to look back when the victim began “talking shit” to the approaching armed Jose indicated that he knew what was coming. Thus, contrary to Garza’s assertion here, the testimony of the prosecution’s main gang expert that the shooting was committed for the benefit of, or in association with, B.D.H. was not general speculation based on his own personal beliefs. Moreover, this expert’s opinion was supported by the opinions of the other prosecution gang expert and the police sergeant who testified. It was also supported by Edgar’s statement that Flores yelled “Dream Homes” while attacking the victim after the shooting, Flores’s statement that he knew when he saw the black truck in which Garza arrived that “it meant trouble” and all the statements by Garza and Flores about what the shooting meant for the future of B.D.H. This evidence was also sufficient to show that by giving Jose the gun, Garza “willfully assisted, furthered, or promoted felonious criminal conduct by” Jose and he “intended to assist, further, or promote criminal conduct by” Jose.
In contending that the evidence did not support the finding that Garza was an active participant in B.D.H. at the time of the shooting, Garza ignores his own statements about the foolishness of Jose’s decision to shoot the victim and how this would impact B.D.H. It also ignores his statements that the people who saw him give the gun to Jose before the shooting would not say that to his face and they would end up changing their statements. Most people who are not members of gangs do not talk like that. While Garza denied that he “gang banged, ” but only watched gang-banging, he admitted that he did what he had to do, that he did not back down when someone “step[ped] up to him, ” and he did not let people come up to him and “say something wrong.” Garza’s expression of concern for what Jose’s shooting of the victim was going to do to B.D.H. was further evidence that he was an active participant in it at the time of the shooting. He referred to the “rules of engagement” which could reasonably be inferred was a reference to the rules of the gang world. He said there was a hit out for him by most of the members of A.L. The clear inference was that this was a result of his involvement in the shooting of the victim. He talked about an incident during which a man who was suspected of shooting others shot him several times. He described his reaction to being shot as one more of anger than concern about his well-being. The jury could view all of these statements, in addition to the opinion of the prosecution’s main gang expert and the presence of the poster in Garza’s room, as evidence that Garza was an active member in B.D.H. at the time of these crimes.
Garza’s reliance on In re Frank S. (2006) 141 Cal.App.4th 1192 is misplaced. Therein, the appellate court noted, “The prosecution did not present any evidence that the [accused] was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Id. at p. 1199.) Here, in contrast, all three facts were present.
Garza’s contention that there was no evidence linking the murder of the victim to gang-related motives, gang territory, or other gang members simply ignores the evidence we have already discussed.
2. Constitutionality of section 12022.53, subdivision (e)
a. Equal Protection
The defendants contend that section 12022.53, subdivision (e), which imposed a 25-years-to-life term on them as principals in the commission of a murder who violated section 186.22, subdivision (b), the gang enhancement provision, when a principal discharged a firearm proximately causing death, violates equal protection. Specifically, they assert that section 12022.53, subdivision (e) singles out aiders and abettors of murder caused by the discharge of a firearm who act for the benefit of a criminal street gang and treat them differently from aiders and abettors who act for the benefit of a group or organization that is not a criminal street gang. Defendants identify the latter as racist hate groups, organized groups of drug dealers or terrorist organizations.
The defendants begin their argument with the assertion, “Singling out aiders and abettors in street gang enhancement cases violates equal protection” citing McCleskey v. Kemp (1987) 481 U.S. 279, 292, 306-308 and People v. Olivas (1976) 17 Cal.3d 236, 250-252 (Olivas). In McCleskey, the defendant challenged the imposition of the death penalty as a violation of equal protection (due to its alleged racially discriminatory application) and as cruel and unusual. The Supreme Court said nothing on pages 292, 306, 307, and 308, about aiders and abettors in street gang enhancement cases. (Id. at pp. 292, 306-308.) Olivas dealt with the constitutionality of a law that permitted confining misdemeanants between 16 and 21 years old (what was then referred to as “youthful offenders”) for longer than the terms prescribed for those over 21 committing the same offenses. (Olivas, supra, 17 Cal.3d at p. 239.) The California Supreme Court held that the law violated equal protection because treating youthful offenders different than those who were over 21 was not necessary to further the state interest in rehabilitation of the former. (Id. at p. 255.) The Supreme Court said nothing on pages 250, 251 or 252 about aiders and abettors in street gang enhancement cases. (Id. at pp. 250-252.)
Defendants do not demonstrate that section 186.22 could not cover racist hate groups, organized groups of drug dealers or terrorist organizations. Be that as it may, we agree with the rejection of the same contention raised here in People v. Hernandez (2005) 134 Cal.App.4th 474, 481-483 (Hernandez), which held,
“It is beyond dispute the state has a legitimate interest in suppressing criminal street gangs. [Defendant] concedes this. He also acknowledges the state has a legitimate interest in punishing criminal gun use more severely than the use of other weapons.... [¶] Courts have long recognized... a Legislature ‘acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach.’ It may direct its attention ‘“to those classes of cases where the need is deemed to be clearest.”’ In enacting the state gang legislation in 1988, the Legislature found, among other things, ‘in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986.’ When the Legislature enacted section 12022.53 10 years later, and made aiders and abettors of gang crimes involving gun use equally liable with the actual perpetrator it did so ‘in recognition of the serious threats posed to the citizens of California by gang members using firearms.’ As our Supreme Court has stated, the Legislature ‘is not prohibited by the equal protection clause from striking the evil where it is felt the most.’ [¶]... [¶]... Whereas here the question is not whether to deprive [defendant] of his liberty but for how long, we believe rational basis review, not strict scrutiny, is the appropriate test to resolve an equal protection challenge. [¶] Clearly the Legislature had a rational basis for imposing a 25-years-to-life enhancement on one who aids and abets a gang-related murder in which the perpetrator uses a gun.... As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence ‘the serious threats posed to the citizens of California by gang members using firearms.’ One way to accomplish this purpose is to punish equally with the perpetrator a person who, acting with knowledge of the perpetrator’s criminal purpose, promotes, encourages or assists the perpetrator to commit the murder.” (Hernandez, supra, 134 Cal.App.4th at pp. 481-483, fns. omitted.)
The defendants urge us to reject the rational basis test embraced in Hernandez, claiming that we are bound by Olivas, supra, 17 Cal.3d 236 to utilize the strict scrutiny test. We disagree.
In People v. Wilkinson (2004) 33 Cal.4th 821, the California Supreme Court held, “The language in Olivas could be interpreted to require application of the strict scrutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’ of the affected individuals. Nevertheless, Olivas properly has not been read so broadly. As the court observed in People v. Davis (1979) 92 Cal.App.3d 250...: ‘It appears... that the Olivas court did not want to increase substantially the degree of judicial supervision of the Legislature’s criminal justice policies. Such a highly intrusive judicial reexamination of legislative classifications is not merited by a close reading of Olivas. There is language in the Olivas opinion that emphasizes the narrowness of the holding. For instance, the court noted that [the statute in question] was constitutionally infirm because persons committed under the statute had been “prosecuted as adults, adjudged by the same standards which apply to any competent adult, and convicted as adults in adult courts.” ([Olivas, supra, ] 17 Cal.3d at pp. 242-243.) This language requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained. We do not read Olivas as requiring the courts to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefore.’ [Citation.] Other courts similarly have concluded that a broad reading of Olivas, as advocated by defendant here, would ‘intrude[] too heavily on the police power and the Legislature’s prerogative to set criminal justice policy.’ (People v. Bell (1996) 45 Cal.App.4th 1030, 1049...; see People v. Owens (1997) 59 Cal.App.4th 798, 802... [‘California courts have never accepted the general proposition that “all criminal laws, because they may result in a defendant’s incarceration, are perforce subject to strict scrutiny[.]’ [Citations.])” (People v. Wilkinson (2004) 33 Cal.4th at pp. 837-838.) Therefore, contrary to defendants’ assertion, the rational basis test applied in Hernandez is the proper one.
b. Due Process
Defendants contend that section 12022.53, subdivision (e) violates due process because it subjects a defendant convicted of first degree murder as a natural and probable consequence of aiding and abetting misdemeanor gun brandishing or disturbing the peace in a gang-related case to harsher punishment than one found guilty as an accomplice to an intentional first degree murder and does so without a requirement that the defendant knew or intended to commit homicide by use of the gun. Specifically, defendants claim they received the enhancement without the jury finding that they shared the shooter’s intent, which, they assert, is required for due process. In support, they cite People v. Beeman (1984) 35 Cal.3d 547, 554, 555 (Beeman).
However, the Beeman court’s holding, which is on page 560, states only the basic proposition that due process requires an aider and abettor to know of the criminal purpose of the perpetrator and have the intent or purpose of either committing or encouraging or facilitating commission of the offense. This jury was required to make these finding as to both defendants. Additionally, an argument identical to the defendants’ was rejected in both People v. Gonzales (2001) 87 Cal.App.4th 1, 13-15 and Hernandez, supra, 134 Cal.App.4th at page 483.
3. Evidence Supporting First Degree Murder
Although Flores makes contentions we discuss in this section under this heading, two of them concern the sufficiency of the evidence to prove that he beat the victim after the shooting and an argument that his acts did not constitute aiding and abetting because they were not a substantial factor in causing the victim’s death. We have addressed these contentions in this section, although they are unrelated to the intent issue he also raises.
“In our limited role on appeal, ‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.] Further, ‘if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] Accordingly, we need not—and do not—address all of defendants’ assertions of conflicts in the evidence, or their alternative theories regarding the inferences that should have been drawn from the evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 161-162.)
Before addressing Flores’s argument about the sufficiency of the evidence of intent, we first address a number of other matters he raises.
See footnote six, ante, page 17.
Trial counsel for Flores said it best when he argued to the jury, “The only person that’s testified in this case that has [Flores] hitting [the victim] is Edgar.... This whole case comes down to whether or not you believe Edgar.... That’s what this case is about.... [¶]... [¶] [T]his case... is either going to succeed or it’s going to fail based on Edgar....”
In fact, Edgar told a police sergeant that after Jose shot the victim, “both [Jose’s brother] and [Flores] attacked [the victim], punched him, struck him as... the victim... was going down after being shot.” Specifically, they “were punching [the victim] on the top of the head and kicking him when he was going down.” Edgar said Flores hit the victim 10 to 20 times. The sergeant testified that he believed Edgar’s statements to be very truthful. As stated before, while doing this, Flores yelled, “Dream Homes.” Whatever inconsistencies, suspicions, conflicts and contrary inferences there were, the foregoing constitutes sufficient evidence that Flores beat the victim on the head and kicked him after the latter had been shot by Jose.
The prosecutor argued to the jury that Flores aided and abetted the murder by beating the victim after he had been shot “accelerating his death.” Counsel for Flores then argued to the jury that Flores’s beating the victim was not a substantial factor in causing the victim’s death, therefore, Flores could not be guilty of aiding and abetting the murder. In rebuttal, the prosecutor argued, “I do not have to prove that... Flores... and Jose... equally grabbed the gun and pulled the trigger. This is not what aiding and abetting is about. Aiding and abetting is that [Flores] assisted... Jose... in the murder of [the victim]. This causation issue is incorrect. I do not have to prove to you that the actions of... Flores caused [the victim’s] death. What I do have to prove to you is the actions of... Flores aided and abetted the actions of Jose...”
Flores concedes that the autopsy surgeon testified that the victim continuously being struck and attacked after being shot could accelerate death. In fact, he testified, “[A]ny time there would be an altercation after a serious injury, that would perhaps exacerbate that injury and accelerate death because the demands on the body would be greater. [¶] [The victim] had a [rapidly fatal] gunshot that affected his right lung. He had extensive hemorrhaging into his right chest. So if he were in some sort of altercation, that could cause an accelerated heart rate, accelerated breathing, ... [t]hat could cause more bleeding more rapidly into his chest. That would certainly accelerate that... survivable time frame....” That Flores’s beating of the victim accelerated his death is precisely what the People argued to the jury. There was no requirement that Flores’s acts be a substantial factor in causing the victim’s death or that the gunshot wounds not be fatal.
The doctor testified as follows during cross-examination,
Flores asserts there is insufficient evidence of intent to support the murder verdict. Without citation to authority, he contends that he “had to know and intend that Jose would shoot and kill the victim before the shots were fired and to intentionally help Jose to do so.” The instruction given the jury required it to find that Flores knew Jose intended to commit the crime of murder and that during the commission of the crime, Flores intended to aid and abet Jose in killing the victim. The evidence demonstrated that the victim was still alive when Flores attacked him. At that point, Flores knew that Jose had just fired four to five shots at the victim at fairly close range. The crime, i.e., murder, was not complete until the victim died, which occurred after Flores attacked him. The jury could reasonably conclude that Flores beating the victim after the latter had been shot at fairly close range demonstrated Flores’s intent to aid and abet Jose in murdering the victim.
Finally, in his reply brief, Flores concedes that the “actus reus [of murder] might be argued to continue until death... ” and “[Flores]... agree[s] that the crime of intentional murder... ha[s] not been technically completed by [Jose] until the victim died four minutes [after being shot].”
In his reply brief, Flores asserts that he may not have realized that the victim was dying when he attacked him and there is no evidence he was so aware. However, that is an inference the jury was free to reject.
b. Premeditation and Deliberation
Flores’s contentions here address only his actions and intent. Therefore, we will not discuss these contentions as to Garza.
Although purporting to address premeditation and deliberation, Flores’s assertions under his heading that there was insufficient evidence of first degree murder do not actually deal with either concept. Rather, he contends, without citing authority, that he must have done something to assist Jose in shooting the victim or he cannot be guilty as an aider and abettor to murder. The very authority he cites, People v. Esquivel (1994) 28 Cal.App.4th 1386, proves the fallacy of his argument. Esquivel noted, “the acts constituting murder ceased when the victim was killed.” (Id. at p. 1395, italics added.) We note that the Esquivel court, who, like this court, was dealing with a victim who had been fatally shot, did not say that the acts constituting the murder ceased when the victim was shot. As stated before, the victim here was still alive when Flores assaulted him. The jury reasonably found that Flores aided and abetted the killing of the victim by assaulting him prior to his death. Therefore, Flores did not need to do anything to assist Jose in shooting the victim.
Next, defendant ignores the theory on which this case was tried by asserting that if the evidence was sufficient to show that he aided and abetted “some other crime, such as assault” it was insufficient to show that “at or before the commission of those crimes” he knew of Jose’s intent to fire on the victim and to commit murder and he “specifically intended to aid in committing those crimes with the requisite mental state for first degree murder.” However, Flores was tried as an aider and abettor of first degree murder, not of assault “or some other crime.” Consistent with the instructions the jury had been given, the prosecutor argued, in pertinent part, that Jose committed first degree murder, Flores (and Garza) knew he intended to commit first degree murder and before or during the commission of the first degree murder, Flores (and Garza) intended to aid and abet Jose in committing it. Contrary to Flores’s assertions, what Flores knew or intended before Jose fired the gun is irrelevant. What matters is that Flores saw Jose shoot the victim at close range and the victim go down on one knee. Based on this, the jury could reasonably conclude that when Flores then attacked the victim, he knew that Jose intended the deliberate and premeditated murder of the victim and he intended to aid and abet Jose in deliberate and premeditated murder.
Garza asserts that the evidence is insufficient to prove premeditation and deliberation because, as Garza puts it, the “probab[ility] that [he] suspected that the [loaded] gun [he handed to Jose] might be used to retaliate [does not amount] to the sort of cold-hearted, reasoned deliberation characteristic of first degree murder.” We disagree. The jury could reasonably conclude, based on evidence already discussed, that when Jose took the gun from Garza, Garza knew exactly what Jose was about to do.
4. Admission of Evidence
Edgar gave conflicting statements about a number of crucial facts, related to both defendants. Specifically, he testified that he did not see Jose approach the black truck in which Garza arrived or talk to Garza before Jose shot the victim and he denied telling the sergeant that he saw Garza get out of the black truck and approach Jose before the shooting, but the sergeant testified that Edgar told him that he did not see what Jose and Garza exchanged at the black truck. Also, there was evidence from Edgar that he did not see Flores actually hit the victim and evidence that he did. There was also conflicting evidence from Edgar about whether Flores yelled out “B.D.H.” or “Bario Dream Homes” while attacking the victim. Edgar gave conflicting accounts about seeing the black truck leave the parking lot, about what he told the police and whether he was a member or associate of B.D.H.
At the time he testified at trial, Edgar was serving a prison sentence for committing a robbery in 2007. He testified that he was initially reluctant to speak to law enforcement about the murder but changed his mind because he felt it was the right thing to do. He testified that before the murder, he was friends with Flores and Garza and had no problems with them. In fact, he and Garza were as close as he and the victim were and he described Flores as a good friend. He said on the stand that he did not want to testify against them.
The prosecutor asked Edgar if he was worried about what would happen to him because of his testimony after he is released from prison. Over a relevancy objection by both defendants, he testified that he was, sometimes, because “it could come back on me.” The trial court denied Garza’s request for a limiting instruction on this evidence. Flores’s attorney made a standing objection to the prosecutor’s questions on the subject. Edgar went on to testify that he was no longer afraid of being labeled a snitch because “[i]t already happened.”
He further admitted drinking the day of the murder, being focused on taking the gun from Jose at the time the victim was being attacked by Jose’s brother and Flores and being nearsighted. However, he denied that the alcohol affected his ability to remember.
The defendants assert that Garza’s request for a limiting instruction as to Edgar’s testimony that he was sometimes worried about what would happen to him when he was released from prison because of his testimony should have been granted. They assert that such evidence was relevant only to show Edgar’s state of mind, attitude, actions, bias, prejudice or lack thereof. However, the lack of any such instruction was not prejudicial to either defendant. It was very clear that Edgar was asked about his concerns because he gave so many conflicting statements over time. We seriously doubt that given all the gang testimony in this case, particularly from the mouths of the defendants, that the jury relied on this brief statement by Edgar to suggest that defendants were “powerful gang members” and “imputed to them... a level of accepted violence.” Garza’s statements to the police, alone, as already discussed, not to mention the evidence of the murder, did a more than sufficient job of demonstrating that, without Edgar’s statement. The defendants’ assertion that the statement implied a consciousness of guilt on their part is far-fetched—he never testified that either of the defendants made or endorsed them. Moreover, by the time Edgar was to be released from prison, both defendants would be in prison if convicted and there was no suggestion that they could retaliate against Edgar from prison.
5. Jury Instruction on Lesser Included Offenses
Under the instructions given, the jury could have convicted defendants of first degree murder, second degree murder or voluntary manslaughter, the latter based on sudden quarrel or heat of passion. The jury was instructed, after being given the proof-beyond-a-reasonable doubt instruction, that if it decided that the defendants committed murder, it must decide whether it was first or second degree murder. The jury was further told as part of this instruction that defendants were guilty of first degree murder if the People proved all of the elements of that offense, which were specified, and that all other murder was of the second degree. The jury was then told, also as part of this instruction, “The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find defendant[s] not guilty of first degree murder.” In connection with the instructions on voluntary manslaughter, the jury was told, “The People have the burden of proving beyond a reasonable doubt that the defendant[s] did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” It was clear from another instruction given that second degree murder and voluntary manslaughter were “lesser crimes” of first degree murder. Defendant now faults the trial court for failing to give, sua sponte, an instruction that if the jury entertained a reasonable doubt as to whether they were guilty of the greater or lesser crime, the jury was to convict them of the lesser. This concept was clearly set forth in the instructions given, therefore, there was no need to give this additional instruction.
Disposition
The trial court is directed to amend the abstracts of judgment for both defendants to show that their convictions for active participation in a gang were rendered by the jury and a second 25-years-to-life term was imposed on each defendant. In all other respects, the judgments are affirmed.
We concur: McKINSTER J., RICHLI J.
In his reply brief, Flores asserts, for the first time, that the evidence supporting the substantive offense and enhancement findings is insufficient because the prosecution’s main gang expert opined that the defendants, as well as the co-perpetrators who were not being tried, committed the murder with the specific intent of promoting, furthering and assisting other gang members and he asserts that such opinion is improper. Below, Flores’s trial attorney brought a motion in limine in which he asked the court to exclude, inter alia, any opinion testimony by this expert on the intent of defendant or anyone else involved in the crime. However, during a subsequent hearing on the motion, after this expert testified briefly, both defense counsel agreed to stop the hearing without arguing the matter and obtaining a ruling about the admissibility of such opinion. Thus, they abandoned their objection to the evidence and thereby foreclosed any contention on appeal that its admission was improper. (Evid. Code, § 353.)
Although Garza joins in this contention to the extent it benefits him, Flores’s assertions in this regard relate only to his actions and intent. Therefore, we have not discussed the assertions as to Garza.
“Q. [DEFENSE COUNSEL]: You were asked a hypothetical about accelerated heartbeat. You don’t know if this actually happened in this case?
“A. [THE DOCTOR]: No
“Q. [DEFENSE COUNSEL]: And you can’t testify to a reasonable medical probability that any sort of... hitting the head could accelerate the death in this case; right?
“A. [THE DOCTOR]: That’s correct.”
On redirect examination, the following occurred,
“Q. [THE PROSECUTOR]: [I]f the victim, after he was shot, was continuously struck and attacked, how would that factor into your equation [of how long he could survive the rapidly fatal gunshot wound?] [¶]... [¶]
“A. [THE DOCTOR]:... That certainly could accelerate it. [¶]... [¶] It could accelerate [the victim’s time of death.]”
On further re-cross examination, the following occurred,
“Q. [DEFENSE COUNSEL]:... [W]e don’t know whether [the victim] had an accelerated heartbeat from being struck; is that correct?
“A. [THE DOCTOR]:... I guarantee that his heartbeat did on its own become accelerated as there was blood loss and inability to breathe. And that would accelerate that and increase the breathing.”