Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. YA062730 of Los Angeles County, Francis J. Hourigan III, Judge.
Vincent James Oliver for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Felipe Hernandez, appeals from his convictions for three counts of attempted willful, deliberate, and premeditated murder. (Pen. Code, §§ 187, subd. (a), 664.) The jury also found that defendant personally and intentionally discharged a firearm in the commission of these crimes (§ 12022.53, subd. (c)) and the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Defendant argues that there was insufficient evidence to support his convictions. The Attorney General argues that additional court security fees should have been imposed. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
A. Shooting on Cordary Street
On the evening of September 7, 2005, Troy Nelson was standing in front of a home on Cordary Street. Mr. Nelson saw a black four-door truck cross into the opposing traffic lane. The windows of the truck were tinted. However, Mr. Nelson could see the heads of the four Hispanic men inside. All four men were “skinheads” according to Mr. Nelson. When the truck was approximately eight feet away, Mr. Nelson heard a Hispanic man ask, ‘“Where you from?’” The Hispanic man was seated in the rear passenger seat on the driver’s side of the black truck. Mr. Nelson understood that question to mean that, “They going to shoot you, or they going to do something.” Mr. Nelson ran toward the trash cans on the side of the house. Although shots were fired, Mr. Nelson did not see who did the shooting. The truck drove away in the direction of 132nd Avenue. Mr. Nelson later saw a bullet hole on the side of the mail box approximately six feet from where he had been standing. Mr. Nelson also saw a 1991 Lincoln car that was struck by a bullet. At the time of the shooting, Cordary Street was known to be the territory of an African American gang. Mr. Nelson was not a gang member at the time of the shooting. But Mr. Nelson was a member of the local gang at the time of trial.
Tonette and Lakeisha Morgan, who are sisters, were sitting in a Lexus automobile in front of their mother’s home at 13100 Cordary Street on the evening of September 7, 2005. Lakeisha was sitting in the driver’s seat of the parked car. Mr. Nelson was standing outside the car near a water hose. Tonette saw a black, four-door Jeep Cherokee approach. There were approximately four or five individuals inside the Cherokee. The truck stopped opposite Lakeisha’s car. The window in the passenger area behind the driver was open. A bald Hispanic man in the left rear passenger seat of the truck asked Mr. Nelson, “Are you from [the local gang]?” Immediately thereafter, the same man pointed a black gun at Mr. Nelson and fired four to five shots. Lakeisha identified defendant at trial as the man who fired the shots and yelled out the name of a rival gang before he shot. Mr. Nelson ran. The truck pulled away. One shot struck the windshield of a Lincoln automobile parked behind the Lexus. Lakeisha was afraid to testify because, “[Defendant is] not the only one from his gang.”
For purposes of clarity and out of no disrespect, future references to Tonette and Lakiesha Morgan will be by their first names.
B. Shooting on 134th Street
Apart from defendant’s videotaped confession, a material part of the evidence concerning the 134th Street shooting consisted of the testimony of Raul Avila and Gino Borunda, the victims alleged in counts 1 and 2 respectively. But as will be noted, much of the testimony of Mr. Borunda and Mr. Avila was impeached by that of other prosecution witnesses.
On September 7, 2005, Mr. Avila was walking a dog in the area of 3141134th Street. Mr. Avila stopped to visit with friends who lived on the block. Mr. Avila could not recall the names of these individuals at the time of trial. Shortly thereafter, a car pulled up. Mr. Avila saw a gun come out of the car window. Mr. Avila ducked for safety. Multiple shots were fired. No one was injured.
Mr. Avila was under the influence of marijuana when he later spoke to the authorities. As a result, Mr. Avila did not recall what he told the officers. Mr. Avila did not want to appear as a witness because he would lose approximately $300 in pay. Mr. Avila wanted to protect himself and his family. Mr. Avila only agreed to appear in court after being threatened with arrest. When questioned by the deputy district attorney, the following occurred: “Q: I had to say I’d have to put you in custody if you weren’t willing to testify, correct? [¶] A: Correct.” Mr. Avila denied knowing defendant. Mr. Avila denied having attended school with defendant.
Mr. Avila did not recall making certain statements to Deputy Sheriff Eric Johnson or Hawthorne Police Detective Christopher Port. Mr. Avila could not remember talking about standing on the porch talking to Mr. Borunda. Mr. Avila did not remember telling Deputy Johnson or Detective Port that a black Jeep Cherokee stopped in front of the house. Mr. Avila recalled telling them that he recognized the person in the Jeep as someone from school. Mr. Avila stated: “I remember – that he said something to catch our attention before the shots were fired. I don’t remember what it was.” At another point when Mr. Avila was questioned by the prosecutor, the following occurred. “Q: [Do] you remember telling Deputy Johnson that you saw the person that said ‘Hey’ then point a gun at you? [¶] A: I don’t recall.” Mr. Avila could not recall stating he heard a gunshot and then, “out of fear for [his] life,” ducked behind a brick wall. Mr. Avila could not remember when he said he heard three more shots. Mr. Avila could not remember being shown a black Jeep Cherokee or a photographic lineup. Mr. Avila could remember being taken to see defendant. But Mr. Avila could not recall seeing defendant’s face. The following then occurred: “Q: Do you remember telling Deputy Johnson that this guy here, this was the one? [¶] A: No, I don’t. [¶] Q: [D]o you recall if you told Deputy Johnson that you recognized him because you went to school with him? [¶] A: No.” Mr. Avila denied having said that he was afraid to come to court.
Mr. Borunda was present at 3141134th Street at approximately 8:40 p.m. on September 7, 2005. Mr. Borunda received a call from a neighbor, the owner of the home. The owner said someone was shooting at their house. Mr. Borunda recognized defendant. They had attended middle and high school together. Mr. Avila also attended the same high school with defendant and Mr. Borunda. Mr. Borunda also knew defendant’s family and recognized some of them in the courtroom. Mr. Borunda did not want to testify because he missed two days of work and had two children to feed. Mr. Borunda did not want to testify against someone he knew. Mr. Borunda did not recall speaking to Deputy Johnson following the shooting. Mr. Borunda testified that Mr. Avila was present at the scene of the shooting. When Mr. Borunda was questioned by the prosecutor, the following occurred: “Q: [D]o you remember telling the deputy sheriff that you spoke to that you were standing on the porch talking to [Mr. Avila]? [¶] A: No, I don’t. [¶] Q: Do you recall telling the deputy sheriff that as you were talking to [Mr. Avila], that you heard a car drive up and stop in front of the house? [¶] A: No, I don’t. [¶] Q: Do you recall telling a deputy sheriff that you turned around to see, and you heard a voice? [¶] A: No, I don’t.” Mr. Borunda could not recall hearing a voice say “Hey” and hearing a single gunshot. Mr. Borunda could not recall or denied stating he “ducked behind a brick wall” on the porch. Nor could Mr. Borunda recall telling a deputy sheriff that three more shots were then fired. At one time, Mr. Borunda and defendant were close friends. But Mr. Borunda could not remember relating that fact to a deputy sheriff.
Mr. Borunda remembered that some deputies took him that night to see some individuals. The deputies also took Mr. Avila. While en route, the deputies stopped in front of a wrecked Jeep. Mr. Borunda did not recall telling the deputies that defendant had been in that Jeep during the shooting. Mr. Borunda was asked to look at six different individuals. Mr. Borunda had grown up with the men. Mr. Borunda knew the name of the gang to which defendant belonged. Mr. Borunda did not recall telling the deputies that defendant was the leader of the gang. Mr. Borunda did not tell the deputies that defendant was the individual who fired the shots. Mr. Borunda did not recall speaking to Detective Port. Mr. Borunda did not recall telling Detective Port that defendant fired the shots from the black Jeep Cherokee after saying, “Hey.” Mr. Borunda was not a gang member. But he did “hang out” with people who were gang members.
Deputy Johnson arrived at the scene of the shooting at 3141134th Street at approximately 8:40 p.m. on September 7, 2005. Deputy Johnson interviewed Mr. Avila and Mr. Borunda, who identified themselves as the ones at whom the shots were fired. Each of the men was interviewed separately. Deputy Johnson testified as to what Mr. Borunda told him: “He said he was on the front porch of the house talking with [Mr.] Avila, when he heard a vehicle drive up. So he looked over his shoulder to see who it was.” Mr. Borunda saw a black Jeep Cherokee. Mr. Borunda then heard the voice of a former friend say, “‘Hey.’” Immediately thereafter, Mr. Borunda said: he heard gunshots; he ducked behind a brick wall; a few more gunshots followed; and then the car drove away. According to Deputy Johnson, Mr. Borunda related: “He said it was a long-time friend. For some unknown reason the friend had broken off their relationship. But he said he had no idea he wanted – his friend wanted to kill him.” Mr. Borunda was very nervous during the interview, even “hyper” in Deputy Johnson’s view.
Deputy Johnson also interviewed Mr. Avila. At the time of the shooting, Mr. Avila said he was facing the street. Mr. Avila was talking to Mr. Borunda. Mr. Avila said he saw a car pull up. A man leaned out the left rear passenger window. Mr. Avila recognized the man. Mr. Avila had attended school with the individual. Mr. Avila heard that man say, “‘Hey.’” The man then pointed a gun at Mr. Avila. Mr. Avila heard a single gunshot and ducked for cover behind a brick wall. Mr. Avila heard a few more gunshots. Mr. Avila then heard the car drive away.
Deputy Johnson found three .45 caliber bullet casings in the street in front of the house where Mr. Avila and Mr. Borunda had been standing. While Deputy Johnson was at the scene of the shooting, he heard a radio broadcast from Hawthorne Police Department. The broadcast indicated that a black Jeep Cherokee was involved in a shooting in an adjacent area. The Hawthorne Police officers had pursued and detained several individuals from that car. Deputy Johnson drove to the location, which was approximately two blocks away from the shooting on 134th Street. The Hawthorne police officers told Deputy Johnson that they recovered a .45 caliber handgun.
After admonishing Mr. Borunda and Mr. Avila, Deputy Johnson drove them to a location for a field showup of both the wrecked black Jeep Cherokee and the individuals detained by Hawthorne Police. Both Mr. Borunda and Mr. Avila identified the Jeep Cherokee as the car they saw before the shootings. The two men were then driven to where the suspects were detained, including defendant. Mr. Borunda denied seeing the person who fired the shots. Deputy Johnson testified: “Mr. Borunda said . . . he recognized [defendant’s] voice because of their former friendship. [B]ecause of the voice recognition, he was able to identify [defendant].” Deputy Johnson testified: “Mr. Avila, who actually saw [defendant], said he actually saw him in the vehicle and point the handgun at him. Immediately identified him. He said he knew him because he actually had gone to school with him.” Mr. Avila was certain that defendant was the person who fired the shots. Detective Port interviewed Mr. Avila regarding the shooting on 134th Street. Mr. Avila repeated the same version of events as those related to Deputy Johnson. Detective Port interviewed Mr. Borunda the evening of the shooting. Mr. Borunda said that he had been standing on the porch at 3141134th Street. Mr. Borunda heard defendant’s voice. As he turned around, Mr. Borunda heard several gunshots. Both Mr. Avila and Mr. Borunda knew that defendant was member of the local gang.
Three days before testifying, Deputy Johnson spoke with Mr. Avila. Mr. Avila said he was afraid to testify. At one point, Mr. Avila said he would not appear in court because he was afraid for his safety and that of his family. Mr. Avila was afraid of defendant’s family. Prior to trial, Mr. Avila said he was afraid to testify. Detective Port described Mr. Avila’s fears: “He told me that he wanted no part of testifying against [defendant] due to the fact he knew him. He said [defendant] was aware of who he was.” Mr. Avila was also afraid for his family’s safety.
Hawthorne Police Officer Frank Miller responded to a call regarding the black Jeep Cherokee on September 7, 2005. Officer Miller saw the Jeep and began following it. A helicopter joined the pursuit. As the Jeep turned onto 135th Street, all four doors opened. The Jeep was still moving. At least four individuals ran from the car in different directions. The Jeep ultimately crashed into a parked car. Officer Miller detained one individual. Eventually six men were detained. The black Jeep Cherokee crashed approximately one-half block from the shooting location on 134th Street. A black bag found 20 to 30 feet from the crashed Jeep contained a 9 millimeter and a .45 caliber semiautomatic handgun with a magazine. The magazine of the .45 caliber handgun held a maximum of nine rounds. Two live rounds were left in the magazine.
Detective Port interviewed defendant at the Hawthorne Police station. The interview was videotaped. Defendant admitted that he fired the shots at both locations on September 7, 2005. Defendant said he fired the shots on Cordary Street to test out the gun. Defendant said he shot at the car window and did not see anyone in the area. Defendant said that he fired the shots on 134th street because someone from the local gang cracked a bottle in the face of one of his “homies.” Defendant said he fired one shot at a car and the rest in the air. The videotape of defendant’s interview was played for the jurors at trial.
C. Gang Evidence
Detective Port was a member of the South Bay Gang Task Force and had extensive training regarding criminal street gangs. In that capacity, Detective Port spoke to numerous gang members on the street and in custody. Detective Port gathered information about conflicts between gangs. Detective Port also documented information regarding gang members through field interview cards filled out by other officers. Gang members often spoke freely with Detective Port because he had built a relationship with them over the years. Respect was gained within the gangs by how bad the members were or because their actions “trumped” the name of the gang. Respect was gained by assaults, shootings, robberies, burglaries, fighting, and other forms of criminal conduct. Detective Port understood the question, “Where you from?” to challenge the individual to identify his or her gang membership. An act of violence usually follows that question because the individual asking already knows the answer or assumes the person is from a rival gang. Detective Port testified that it was a challenge to convince witnesses to come to court and testify what they previously told police. The witnesses are reluctant because the gangs might retaliate against the witness’s family and friends or terrorize their residence.
Detective Port was familiar with the gang to which defendant belonged. There were approximately 50 to 60 documented members of that gang at the time of trial. The primary activities of that gang involved vandalism, assaults with deadly weapons, and robberies. Detective Port was familiar with Miguel Esparza, an admitted member of defendant’s gang. Mr. Esparza had pled guilty to a robbery for the benefit of the criminal street gang in August 2006. Another admitted member of the gang, Salvador Ellison, was convicted of grand theft in 2003. A third self-admitted member of the gang, Oswald Hernandez, was convicted of dangerous weapon possession in 2004. In addition, David Ruvalcalba, also an admitted member of defendant’s gang, was convicted of robbery and assault with a deadly weapon in 2006. During the videotaped confession, defendant acknowledged gang affiliation. In addition, Detective Port had seen field identification cards prepared by other Hawthorne Police Officers. Those field investigation cards indicated defendant had admitted his membership in the rival gang. The five other individuals that were arrested with defendant following the shootings also admitted their membership in the rival gang to Detective Port.
The first shooting occurred in the area of a Black criminal street gang. Based upon his training and experience, Detective Port expressed an opinion concerning the scenario where: a Hispanic gang would go into the territory of a Black gang; a gang member would yell, “You from [the local gang]?”; and then fire several rounds. In Detective Ports’s opinion, the shooting was perpetrated for the benefit of the Hispanic street gang. Such acts would demonstrate a show of force and intimidation. Detective Port explained that when a gang member is assaulted or disrespected by another gang, some form of retaliation will occur in the territory of the other gang. The retaliating gang would go into the other gang’s territory where they would expect individuals to congregate. If six members of the retaliating gang appeared, it would suggest that they were acting for the benefit of the gang. If the gang did not retaliate, it would be looked upon as weak.
Regarding the incident on 134th Street, Detective Port noted the shooting took place in the local Hispanic gang territory. Detective Port was asked to give an opinion concerning a hypothetical situation concerning a car full of six rival gang members who approached two men on 134th Street, yelled, “Hey” to get their attention, and then fired several rounds. Detective Port believed this scenario suggested: the associates wanted the victims to know who was shooting at them; this was because there was some issue between those in the car and the victims at whom the shots were fired; and the fact that there were six gang members in the car suggested they came in force to intimidate.
Based upon his training and experience, Detective Port believed that both shootings were committed for the benefit of defendant’s gang. The shooting on Cordary Street was in retaliation for an attack on Christian Vega, a member of defendant’s gang. By shooting at the opposing gang, those in the Jeep Cherokee sent a message about their potential for violence while raising the gang’s level of respect and fear by other gangs. The shooting on 134th Street was in retaliation for a bottle having been smashed against the face of a member of defendant’s gang. By stopping and assuring they would be recognized, they conveyed a show of force and demanded respect.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence support his convictions for three counts of willful, deliberate and premeditated attempted murder. Defendant further argues there was insufficient evidence that he fired a gun with the intent to kill anyone in either incident. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979)443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, (1994) 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
In People v. Smith (2005) 37 Cal.4th 733, 739, the California Supreme Court held: “‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (See People v. Lee (2003) 31 Cal.4th 613, 623; People v. Swain (1996) 12 Cal.4th 593, 604-605.) In Smith, our Supreme Court continued: “[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] ‘“The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.]” (People v. Smith, supra, 37 Cal.4th at p. 741, quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 and People v. Lashley (1991) 1 Cal.App.4th 938, 945, 946; see also People v. Lee (1987) 43 Cal.3d 666, 679; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225.)
In this case, a car carrying six gang members, including defendant, drove down Cordary Street in the territory of a Black gang. The car suddenly crossed opposing traffic and pulled close to the curb. Defendant yelled out from the car, “‘Where you from?’” to Mr. Nelson, who was standing outside a home on Cordary Street. Defendant immediately began shooting. Bullets struck the mail box located approximately six feet away from Mr. Nelson and a nearby parked car. By his own admission, defendant fired the shots. His only defense is that he did not intend to shoot anyone. Rather, he claimed that he was merely firing shots in the air. Defendant argues that the fact that the bullets struck an object six feet away from Mr. Nelson demonstrates that he did not intend to shoot Mr. Nelson. As set forth above, the intent to kill may be inferred from the totality of the circumstances, including where the accused fires toward the victim at a close, but not point blank range, so that a fatal wound would have been inflicted had the bullet been on target. (People v. Smith, supra, 37 Cal.4th at pp. 741-742; People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) As discussed above, defendant drove in the company of five other gang members to a rival gang’s territory and fired multiple shots at Mr. Nelson, striking an object six feet away and a car in the line of fire where Mr. Nelson sat. Before the shots were fired, Lakeisha heard defendant yell out, “Are you from [the local gang]?” There was substantial evidence of defendant’s intent to kill Mr. Nelson. (See People v. Arias (1996) 13 Cal.4th 92, 162 [“if the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance”]; see People v. Smith, supra, 37 Cal.4th at p. 736.)
Likewise, there was substantial evidence defendant intended to kill Mr. Avila and Mr. Borunda on 134th Street. The Cordary and 134th Street shootings were committed within a short time of one another. The six gang members, including defendant, drove past the location on 134th Street where Mr. Avila and Mr. Borunda were standing on the porch. Defendant knew the two individuals from high school and had an unspecified disagreement with Mr. Borunda. Defendant called out to the two men before firing multiple shots. Defendant readily acknowledged that he fired the shots in retaliation for an assault by a local gang member against a member of his gang.
B. Court Security Fees
Following our request for further briefing, the Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the three counts for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed one court security fee. As a result, two additional section 1465.8, subdivision (a)(1) fees must be imposed. The trial court is to personally insure the abstract of judgment is corrected to full comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of two additional court security fees. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.