Opinion
B277467
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM GERONIMO, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA443976) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed and remanded. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Abraham Geronimo challenged his conviction for attempted premeditated murder. He argued that the record lacked sufficient evidence to support the conviction. On December 12, 2017, we issued our original opinion affirming the judgment of conviction. On January 1, 2018, Senate Bill No. 620 (Stats. 2017, ch. 682; Sen. Bill No. 620) became effective. It's section 2 amended Penal Code section 12022.53, subdivision (h) to remove the prohibition against striking the gun use enhancements under this and other statutes. The amendment grants the trial court discretion to strike or dismiss an enhancement that otherwise may be imposed under the authority of section 12022.53. (Stats. 2017, ch. 682, § 2.) Appellant filed a petition for review with the California Supreme Court. On March 21, 2018, his petition was granted and the matter was returned to this court with directions to vacate our decision and reconsider the cause in light of the authority granted by the newly effective amendment to section 12022.53, subdivision (h). Having reconsidered the case, we affirm the conviction and remand the case to the trial court to exercise its discretion to resentence defendant pursuant to the amended statute.
All subsequent references are to the Penal Code.
BACKGROUND
1. Amended Information
Defendant was charged with attempted willful, deliberate, premeditated murder (§ 187, subd. (a); count 1) and with assault with a firearm (§ 245, subd. (a)(2); count 2). As to each count, it was alleged that a principal personally used and discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1). A gang enhancement was alleged with respect to each charge.
2. Trial Testimony
Viewed in the light most favorable to the judgment (People v. Jennings (2010) 50 Cal.4th 616, 638), the evidence established the following. On February 10, 2015, then 13-year-old Julio R. shot Esteban Pablo three times. Julio pointed the gun at Pablo when he fired. One bullet penetrated Pablo's leg, causing him injury.
Immediately prior to the shooting, Julio was with defendant, his fellow gang member. They were spray-painting a garage door, near Pablo's residence. Pablo went outside his residence to move his car, and Julio said to defendant, "Don't mess with me." During this interaction, defendant was "looking" and "keeping an eye out," and was acting as a "lookout."
Defendant waited for Julio. After Julio shot Pablo, defendant and Julio fled together. A deputy sheriff located defendant and Julio shortly after the shooting. He saw defendant discard a white T-shirt; inside the white shirt the deputy later found the gun Julio had used to shoot Pablo. The gun had malfunctioned when a bullet remained stuck in the chamber. The same deputy saw Julio discard a second T-shirt; a second loaded firearm was found inside this shirt.
It was undisputed defendant was an active member of the Easy Riders 13 gang. Defendant's moniker was Necio. Defendant and Julio were crossing out rival gang members' graffiti when Pablo exited his residence and was shot.
A gang expert testified older gang members often mentor younger gang members. According to the gang expert, juvenile gang members are encouraged to commit crimes because the consequences to them are less severe than those imposed on adult gang members. When gang members go "on a mission" it means they are planning to commit crimes. When gang members go on a mission to cross out a rival gang's graffiti, the gang members are often armed in anticipation of a confrontation with members of rival gangs or with nearby residents. Gang members use violence to instill fear within the community.
3. Aiding and Abetting Instruction
Jurors were instructed that to prove a defendant is guilty of aiding and abetting, the People must prove: "1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."
4. Judgment
Defendant was convicted of all charges. He was sentenced to prison for life plus an additional 25 years to life for the discharge of a firearm causing great bodily injury. Sentence on count 2 was stayed pursuant to section 654. This appeal followed.
DISCUSSION
On appeal, defendant argues there was insufficient evidence to support the crimes of which appellant was convicted because "there was no evidence to suggest that [defendant] was aware of Julio P.'s [sic] capacity for deadly violence." Defendant further argues "nothing suggests a common purpose of killing." Defendant argues his only purpose in being at the scene was to "stake a claim to territory with graffiti." Defendant acknowledges he "presumably knew Julio P. [sic] was armed" but claims he was ignorant Julio would "try to kill a bystander with no relation to a gang."
Attempted murder requires the specific intent to kill; an aider and abettor must share that specific intent. (People v. Lee (2003) 31 Cal.4th 613, 623-624.) " '[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.)
The natural and probable consequences doctrine is not implicated in this case.
" 'To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented.' " (People v. Garcia (2008) 168 Cal.App.4th 261, 272.) "[N]either presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Defendant's argument ignores the appropriate standard of review. Applying this standard, once the evidence is considered in the light most favorable to the judgment, ample evidence supports the judgment. Stated otherwise, defendant's argument that he was unaware of Julio's intent to use violence and more specifically of his intent to kill is not persuasive. Jurors could reasonably conclude that defendant knew of and shared Julio's intent.
Defendant did not "independently happen by the scene of the crime." (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) Defendant and Julio armed themselves prior to going on a gang mission. It was common for an older gang member to mentor a younger gang member, and jurors could have inferred that defendant was mentoring Julio. Together they committed vandalism by spray-painting a garage door. When Pablo exited his residence, Julio and defendant continued to act together as Julio shot Pablo and defendant acted as his lookout. Julio aimed at Pablo as he shot him multiple times. Julio stopped shooting when the gun jammed, preventing a bullet to be expelled from the chamber of his gun. Defendant and Julio continued to act together after the shooting. They fled together and subsequently were found discarding firearms at defendant's residence. In that residence the sheriffs found clothing consistent with that described as being worn by the shooter and his accomplice. Based on this evidence reasonable jurors could infer defendant intended to aid and abet the killing and the assault with the firearm.
Defendant's argument that in other cases the aider and abettor spoke during a confrontation rather than acting only as a lookout does not show that the elements of aiding and abetting were not established in this case. Acting as a lookout is a method of aiding and abetting a crime. (People v. Ketchum (1960) 185 Cal.App.2d 615, 619.) As the court in People v. Garcia explains: " '[T]he law imposes criminal liability upon all persons "concerned" in the commission of a crime. [Citation.] As a legal standard this provision creates what may be considered a "bright line" rule. If a person is "concerned" in the commission of a crime then he is guilty of that crime without assessment of the degree of his involvement otherwise. "Liability attaches to anyone 'concerned,' however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal." [Citations.] A person is "concerned" and hence guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures.' " (People v. Garcia, supra, 168 Cal.App.4th at p. 272.) Here, defendant aided Julio by acting as his lookout. His state of mind may be inferred from the circumstances.
In a supplemental brief directed to the effect of the enactment of Sen. Bill No. 620, defendant argues this case must be remanded for resentencing. Defendant correctly points out the amended section 12022.53, subdivision (h), applies to his conviction as it was not final by the effective date of the amendment. (In re Estrada (1965) 63 Cal.2d 740, 745 [When the Legislature reduces a penalty " 'it is safe to assume . . . that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.' "]; accord, People v. Brown (2012) 54 Cal.4th 314, 323 [discussing whether appeal was final or not when Sen. Bill No. 620 went into effect on Jan. 1, 2018]; see People v. Vieira (2005) 35 Cal.4th 264, 305-306 ["a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal"]; People v. Smith (2015) 234 Cal.App.4th 1460, 1465 ["[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired"]; see also Bell v. Maryland (1964) 378 U.S. 226, 230 ["The rule applies to any such [criminal] proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it."].)
As effective January 1, 2018, section 12022.53, subdivision (h) provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), the Attorney General argues remand is unwarranted because there is no reasonable possibility the court would exercise its newly authorized discretion to strike the firearm enhancement. In Gutierrez, the trial court had imposed the maximum possible sentence, which included an enhancement for a prior strike conviction and two discretionary enhancements. (Id. at p. 1896.) While the defendant's appeal was pending, the Supreme Court held trial courts have discretion to strike prior convictions under the Three Strikes law in the furtherance of justice. On appeal, the court declined to remand for resentencing, reasoning it was obvious the trial court would not exercise its newfound discretion given it had increased the defendant's sentence beyond what it believed was required by the Three Strikes law and had stated the maximum sentence was appropriate. (Gutierrez, at p. 1896.)
This case is distinguishable from Gutierrez. Here, the probation report indicated defendant had only a minimal prior criminal history, including vandalism and driving without a license. Although the trial court rejected arguments that the evidence did not support the verdict and that the punishment was cruel and unusual, the record is silent on whether the trial court would have reduced the 50-year-to-life sentence if it had discretion to do so. There is no indication in the record that the trial court had considered the possibility. Thus, Attorney General's argument that the record demonstrates the trial court would not have exercised its discretion to reduce the sentence is without basis. We therefore reserve that portion of defendant's sentence related to the firearm enhancement and remand this matter for the trial court to exercise its newly granted discretion under subdivision (c) of section 12022.5.
On remand, the court may exercise its discretion under section 12022.53, subdivision (h), to strike all of the firearm enhancements or impose any one of the enhancements.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court to exercise its discretion in sentencing defendant under section 12033.53. (Stats. 2017, ch. 682, § 2.)
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
BIGELOW, P. J.
RUBIN, J.