Opinion
F070172
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ARCENIO LEON, Defendant and Appellant.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF152645A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On the evening of January 4, 2014, appellant/defendant Ismael Arcenio Leon shot and killed Javier Meraz at a party. The fatal shooting occurred immediately after defendant and Meraz were fighting. At trial, defendant admitted that he fatally shot Meraz but claimed that he did so in self-defense. The prosecution evidence focused on whether defendant was a member of the Loma Bakers criminal street gang, and Meraz and some of the other party guests were members of a "tagging crew" known as YAK.
Defendant was charged with first degree murder. He was found not guilty of that offense but convicted of second degree murder as a lesser included offense, with firearm and gang enhancements. He was also charged and convicted of assault with a firearm on the victim. He was sentenced to 40 years to life.
On appeal, defendant argues the court improperly instructed the jury with mutual combat and provocation instructions, the instructions were not supported by substantial evidence and were prejudicial to both charged offenses, and prevented the jury from considering his self-defense claims. Defendant separately challenges the court's decision to instruct the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense; defendant argues the court had a sua sponte duty to also instruct on provocation/heat of passion as an alternate theory for voluntary manslaughter.
Defendant argues the gang enhancement must be reversed because there is insufficient evidence he committed the murder to benefit the Loma Bakers or any criminal street gang, and that the incident was a personal dispute between defendant and Meraz. Finally, defendant contends, and the People concede, the matter must be remanded for a hearing on possible mitigating sentencing factors in anticipation of a future parole hearing.
We will remand the matter for the appropriate hearing and will affirm in all other respects.
FACTS
Rafael Carrasco (Carrasco) was known as "Ponchis" or "Kaos." He was a member of a "tagging crew" called "YAK," which stood for Young Assassins Krew, Young Assassins Klik, and/or Young Assassin Kings.
Carrasco and his girlfriend, Janitta Padilla (Padilla), lived on Griffiths Street in Kern County. Their residence was a small structure located directly behind the house where Padilla's parents lived. The "kickback" at Carrasco's house
All further references to Carrasco's house or his residence are to this small structure located in the back of the property, where Carrasco and Padilla lived.
Most of the details about the evening were based on the trial testimony of Uribe and Erendira, who testified for the prosecution. Uribe appeared under a grant of immunity.
On the night of Saturday, January 4, 2014, Carrasco hosted a gathering at his house, which the attendees described as a "kickback." The guests were defendant Ismael "Booger" Leon and his nephew, Jessie "Resin" Alvarez (Alvarez); the victim, Javier "Tank" Meraz (Meraz); Angel "Goner" or "Fatboii" Uribe (Uribe); and Uribe's uncle, Marcos Erendira (Erendira). YAK members
The deputies who responded to the crime scene that night testified Meraz was "heavyset" and "a bigger guy," who was about six feet tall and weighed 240 to 250 pounds.
Carrasco had tattoos that stood for "Young Assassins" and "Kern County." At trial, Carrasco testified he knew about YAK, but insisted that he was not a member and only associated with members with whom he went to school. He believed Meraz was a member of YAK, but claimed that he did not know if Uribe, Erendira, and Alvarez were members. He testified defendant was not a member of YAK.
Alvarez testified that defendant, Meraz, Uribe, and Carrasco were members of YAK, and Carrasco originally founded the group. Alvarez testified that he had previously been a member of YAK. Alvarez testified he left YAK in October 2013, and Carrasco knew that. Alvarez had a prior conviction for battery of a school official.
Uribe testified he became a member of YAK in April 2013, when he was "rushed in" and beaten by three or four other members for 13 seconds or more. After two months, he decided to leave because he did not like "banging." He was "rushed out" of YAK, and he was again beaten for 13 seconds. Uribe testified Meraz was rushed out at the same time that he was. However, Uribe still backed YAK. Defendant's prior statements about YAK and the Loma Bakers
During defendant's postarrest interview, defendant explained that a prospective member of YAK was jumped in by being assaulted for 13 seconds to signify allegiance to the Sureños and Mexican Mafia, because the Mexican Mafia claimed the number 13.
Uribe testified about several statements that defendant and Meraz made to him prior to the gathering at Carrasco's house.
At some point before the kickback, defendant told Uribe that Meraz was not his friend and they just had mutual respect for each other. Defendant said he had an issue with Meraz.
Uribe testified that Meraz said he had an issue with defendant. Uribe knew that defendant and Meraz had a personal issue about a girl, but Uribe believed they were both over it.
Uribe testified that a few weeks before the party, defendant said that he was going to "earn his stripes to be a Loma boy," referring to the Loma Bakers gang, and that he had to stab or kill someone to earn respect.
Uribe testified that at some point after that conversation but before the party, defendant bragged that he was in Loma and he had already been rushed in. Defendant said he could not be "certified" Loma until he was rushed out of YAK. Uribe testified that Meraz used the derogatory phrase "Leva Boys" for the Loma Bakers; it meant they were punks. Defendant's gun
On the night of the party at Carrasco's house, Uribe drove there with Erendira and Meraz. Defendant drove a gray Mustang and followed Uribe's car to Carrasco's house; Alvarez was in defendant's car. Defendant parked on the street in front of Carrasco's house.
Uribe and Erendira testified that defendant was carrying a semiautomatic handgun when he arrived at Carrasco's house. He was the only person at the gathering who was armed. He removed the clip, showed the gun to the other guests, and bragged about "his new baby." The other guests asked defendant to unload the clip and leave it on top of a cabinet in case they got too drunk. Defendant did so.
Alvarez, defendant's nephew, testified that he saw a semiautomatic handgun at the party that night. When he first saw it, the gun was tucked in Meraz's pants, then Uribe grabbed it, and it was passed around to Carrasco and Alvarez.
Carrasco and his friends drank a large amount of beer and liquor that night. Meraz, Carrasco, Uribe, and Erendira used cocaine. At some point, some of the guests left to buy more beer, and then returned to the house. The photograph
During the evening, Padilla (Carrasco's girlfriend) took a photograph of defendant, Meraz, Carrasco, Uribe, Erendira, and Alvarez. Defendant retrieved his gun and posed with it for the photograph. He tucked the gun in his front waistband, behind his belt, so it was visible in the picture.
Uribe testified that he threw the sign for the Kern South gang when he posed for the picture. Uribe testified that defendant, Carrasco, Alvarez, Erendira, and Meraz threw the sign for YAK. Carrasco testified that everyone in the photograph was throwing a "Y," the gang sign for YAK.
Alvarez testified that that everyone was passing the gun around that night, and it happened to be in defendant's hand when the picture was taken. Alvarez testified he and defendant threw up the sign for YAK even though they weren't members anymore. Alvarez said they did it because "most of the members of the crew didn't ... like me or him; so we threw it up to get them angry ... 'cause we were close to everyone right there." Alvarez testified he wanted to make the other men angry because they were saying things about Alvarez dropping out of YAK.
Uribe and Erendira testified that Meraz said he was going to post the photograph on his Facebook page, and he did so that night. Kickback guests being "rushed" in and out of YAK
After the photograph was taken, the party continued and Erendira was rushed in as a member of YAK; Carrasco, Meraz, and maybe Uribe assaulted him. Erendira was supposed to withstand the beating for 13 seconds, but he only lasted for 10 seconds and was not "certified" as a YAK member.
About 20 to 30 minutes later, defendant was rushed out of YAK. Uribe testified that defendant had already left YAK at some point prior to the gathering, "but he didn't really get rushed out of it," and defendant wanted to leave YAK "the right way." Defendant had told Uribe that "he's getting put onto the Loma," referring to the Loma Bakers gang, and "he wanted to get rushed out" from YAK. Defendant "wanted to get pretty much rushed in already and be part of the Loma, like, certified Loma; so he wanted to get out of YAK before they could put him onto the Loma."
Deputy Bravo obtained copies of the Facebook accounts of defendant and Meraz pursuant to search warrants. As we will discuss below, there were photographs on defendant's account that showed him flashing signs used by the Loma Bakers and the Gage Street clique.
Uribe testified defendant was rushed out of YAK by Meraz, Carrasco, and Erendira. The men beat defendant while the others counted to 13 seconds. Defendant handled the required 13 seconds of the assault. Uribe testified that defendant got "props" from the others because he took the beating like a man.
Alvarez testified Erendira was part of the group that rushed out defendant, and Uribe filmed it. Erendira testified he did not participate, and that Uribe, Carrasco, and Meraz rushed out defendant.
After the 13-second period ended, however, defendant and Carrasco continued to fight. Meraz and Uribe broke it up. Erendira testified that defendant and Carrasco kept "dogging" each other across the room as the evening continued.
TESTIMONY ABOUT THE FIGHT AND THE HOMICIDE
At trial, Uribe, Erendira, and Alvarez testified for the prosecution about the fight that occurred immediately before defendant shot and killed Meraz. They offered different versions of the events. As we will further discuss below, defendant testified at trial to another version of events - that he shot Meraz in self-defense. Defendant was charged with murder, and the court instructed the jury on self-defense, justifiable homicide, and the lesser included offense of voluntary manslaughter based on imperfect self-defense.
On appeal, defendant challenges the court's instructional decisions based on the various accounts of the fight and the shooting, particularly as to whether there was substantial evidence to support the instructions that were given on mutual combat and provocation (issue I), and whether the court also had a sua sponte duty to instruct on heat of passion as an alternate theory for voluntary manslaughter (issue II). We will thus separately consider the testimony from the witnesses about the fight and the shooting in order to address defendant's instructional arguments below. Uribe's trial testimony
Uribe testified that after the rushing incidents, Alvarez and Carrasco started to argue, it escalated, and they were screaming at each other. During the argument, Alvarez said that "he didn't dis [sic] the YAK." Carrasco, who was very drunk, replied that "other people were telling him that [Alvarez] was dissing the YAK." Alvarez pushed Carrasco and said "to stop banging on him." Carrasco pushed Alvarez back.
Uribe testified that defendant and Alvarez walked out of Carrasco's house and left the door open. They stayed outside for a few minutes, then returned into the house. Defendant retrieved his gun, replaced the clip, and said he was leaving.
As defendant and Alvarez walked out of the house, Carrasco followed them through the door. Alvarez and Carrasco got into another argument and exchanged words. Alvarez and Carrasco pushed each other, and Alvarez punched Carrasco. Carrasco swung at Alvarez, but he was too drunk and missed. Carrasco tripped and fell down.
Uribe testified that he was still in the house, but he heard Carrasco, Alvarez, Meraz, and defendant yelling outside. Uribe looked out the window and saw them. Carrasco yelled, "Why are you dissing the set?" Alvarez yelled back that "[h]e wasn't dissing." Meraz was yelling at everyone to calm down. Defendant yelled at Alvarez to knock out Carrasco.
Uribe decided it was time for him to leave, and he walked out of Carrasco's house. When he got outside, he saw that Carrasco was on the ground. Alvarez was fighting with Meraz. Defendant was also trying to fight with Meraz. Meraz was swinging back.
As we will discuss below, other witnesses testified Carrasco was on the ground because defendant punched Carrasco and knocked him out; Uribe apparently did not see Carrasco get knocked out.
Uribe believed Meraz became involved because it was not a fair fight. Alvarez stepped away, and defendant and Meraz started hitting each other. Uribe testified that defendant and Meraz were "throwing punches, standing back from each other just like they're boxing." (Italics added.) Meraz threw two or three punches at defendant, and defendant was swinging back at him for 15 to 20 seconds. Defendant was more active than Meraz in throwing punches.
The homicide
Uribe testified that after defendant and Meraz exchanged punches, Meraz backed away from defendant. About five seconds after Meraz backed away, defendant pulled out his gun and fired two shots in the air, and then said, " 'Loma Bakers on mine' " and " '[f]**k YAK.' " Uribe testified that defendant's words meant "he's 'repping' it, saying that that's part of who he is," that he was part of the Loma Bakers.
Uribe testified that after defendant made these statements, he aimed his gun at Meraz and shot him three times from a distance of three to four feet. One of the wounds was fatal. Erendira's trial testimony
Erendira testified that Carrasco was very drunk and tried to start fighting with Alvarez. Defendant and Alvarez decided to leave and said goodbye to everyone.
Erendira testified that as defendant and Alvarez left the house, Carrasco followed them outside. Carrasco started arguing with defendant and Alvarez. Erendira went outside with Meraz; Uribe also went outside to see what was happening. Carrasco, defendant, and Alvarez exchanged words and the matter escalated. Meraz held Carrasco back and tried to get him to calm down.
Erendira told Uribe to grab their stuff because they were going to leave. Erendira and Uribe briefly went into the house and retrieved their belongings. When they returned outside, Carrasco and Alvarez were pushing each other and fighting. Meraz and defendant were standing nearby, and everyone was mad and yelling.
The homicide
Erendira testified that Alvarez and Carrasco started swinging at each other and landing blows. Erendira testified defendant ran in and joined the fight against Carrasco. Alvarez stepped back. Defendant landed several punches on Carrasco and knocked him out. Carrasco fell to the ground. Meraz started throwing punches at defendant. Defendant and Meraz punched each other with closed fists a few times.
Erendira tried to get between defendant and Meraz and break it up. Defendant and Meraz kept swinging at each other, and Erendira backed away so he wouldn't get hit.
Erendira testified that defendant and Meraz continued to fight, push, and throw punches at each other. Meraz was winning the fight. Defendant backed up and removed the gun from his waistband. Meraz stopped swinging, but his fists were still raised in front of his chest. Defendant was within an arm's reach of Meraz.
Erendira testified that defendant fired the gun in the air twice, and said, " 'F**k YAK' " and "something about Loma." Defendant then pointed at Meraz, who was standing in front of defendant. Defendant shot Meraz three or four times. When defendant shot Meraz, Meraz's hands were down at his side, he was not moving, and defendant and Meraz were a few feet apart. Alvarez's trial testimony
Alvarez, defendant's nephew, testified at trial about a slightly different version of the fight and the homicide. Alvarez testified that after defendant was jumped out of YAK, defendant fell down and Carrasco helped him up. Defendant and the others kept drinking and there were no problems.
At trial, Alvarez testified that he was 17 years old and had cases pending against him that could result in being placed in custody.
Later on, Carrasco was so drunk that he kept falling into the others. Carrasco fell onto Alvarez, and Alvarez tried to help him up. Carrasco got upset and said not to push him. Meraz grabbed Carrasco and told him to calm down. Alvarez and defendant decided to leave.
Alvarez testified that he walked out of Carrasco's house with defendant. Carrasco followed them outside and he was still mad. Carrasco asked Alvarez if he was "tripping" and had pushed him. Carrasco got into Alvarez's face. Alvarez told him to get away from him. Carrasco swung at Alvarez and they started fighting with closed fists. Defendant and Meraz watched them fight.
Alvarez testified that as the fight continued, Carrasco grabbed and hugged him, as if they were wrestling. Meraz joined the fight and started punching Alvarez's head. Defendant pulled Meraz off Alvarez. Alvarez and Carrasco resumed their fight. Alvarez did not know where defendant went or what he was doing after he pulled Meraz away. He never saw defendant fighting with Carrasco or Meraz.
The homicide
Alvarez testified he was still fighting with Carrasco when he heard a gunshot. Alvarez did not see who fired the gun or if anyone was shot. Alvarez became frightened and thought someone was shooting at him. Alvarez ran away from the house. Alvarez headed to the next street, and then defendant drove up in his Mustang and picked him up. Defendant did not have a gun.
Alvarez testified he did not hear defendant say anything before the shots were fired, and he did not see defendant pull the gun or fire it at Meraz or anyone. After the shooting
Erendira testified that immediately after defendant shot Meraz, both defendant and Alvarez ran to defendant's grey Mustang and left.
Uribe testified that after he saw defendant shoot Meraz, he ran to the alley to hide because he was afraid of being shot. Within a few seconds, Uribe ran to the front of the house, and saw defendant get into his Mustang. Alvarez was already sitting in the passenger seat, and defendant drove away.
Erendira testified that Meraz did not fall down after he was shot. He made it back into Carrasco's house. Padilla, Carrasco's girlfriend, found Meraz moaning on the floor, covered in blood. Carrasco was crying and trying to help Meraz. Padilla and other family members called 911. Carrasco and Padilla tried to talk to Meraz, but he just groaned and did not respond to them.
Uribe and Erendira headed to their own car. Padilla screamed at them to return and help. Uribe briefly went back toward Carrasco's house. Padilla asked Uribe who shot Meraz. Uribe told her what happened and said he had to leave. Uribe and Erendira drove away before the sheriff's department arrived.
THE INVESTIGATION
At approximately 3:00 a.m., deputies from the Kern County Sheriff's Department responded to Carrasco's residence. A blood trail led from the yard to Carrasco's house, where Meraz was lying. Meraz was alive but unresponsive. He had been wounded three times, in the stomach, arm, and hand. Meraz was taken to the hospital where he died. His blood-alcohol level was 0.191 percent.
The gunshot wound to Meraz's abdomen was fatal. It entered his left side, perforated the abdominal wall, went through the bowel and the right iliac artery, lodged in the pelvis, and caused massive bleeding. The bullet's path was front to back, and downward. There was no stippling on Meraz's body, but the pathologist did not see his clothing. The gunshot wounds were characteristic of distant-range wounds.
Darrell Lumly, a retired deputy with the sheriff's department, lived near Carrasco's house. He reported that he heard one distinct "pop" of gunfire, followed by a pause, and then two more shots. He looked out the window of his house and saw two figures leave Carrasco's residence and get into a light-colored sedan that was parked in front. The car's driver performed a U-turn and left the area.
The responding deputies found three nine-millimeter bullet casings in a grassy area outside Carrasco's residence. The casings were consistent with being fired from a semiautomatic weapon. The deputies found 18 empty and half-empty beer cans in the house and yard, along with a plastic garbage bag full of more empty beer cans. Defendant calls Uribe
A deputy received information from a person at Carrasco's house that the gunman was known as "Booger." A computer records check connected defendant to that moniker.
A few hours after the homicide, Erendira and Uribe contacted law enforcement officers and reported what happened. Erendira and Uribe were shown photographic lineups, and identified defendant as the gunman.
Uribe testified that while he was waiting to talk to the officers, he received a telephone call from defendant, who was using Alvarez's cellphone. Defendant said: " 'I heard you're going to the police department.' " Defendant also said: " 'If you tell them, you're gonna be next.' " Carrasco's pretrial statements
When the officers responded to Carrasco's house and discovered Meraz, they also determined that Carrasco was intoxicated. He was arrested for being drunk in public.
Carrasco later pleaded guilty to misdemeanor public intoxication.
A few hours after he was arrested, Sergeant Raul Murillo met with Carrasco at the sheriff's department. Carrasco had fresh scrapes all over his face, knuckles, knees, and feet, his left eye was swollen shut, and he was covered in blood. He smelled of the strong odor of alcohol and stale beer.
Sergeant Murillo testified Carrasco was not cooperative and would not provide any details about what happened. Carrasco said he had no idea how he got a black eye or beat up. Carrasco said he drank six or seven 12-ounce beers, and he was relieving himself outside when he heard four or five gunshots. Carrasco said people ran out of his house, he went back inside, and he found Meraz lying on the ground and bleeding. Carrasco would not identify who ran away. Carrasco repeatedly said he could not tell Murillo anything because he could not remember what happened.
Sergeant Murillo testified that Carrasco's account of where the shooting occurred was inconsistent with the location of the bullet casings and the victim's blood trail.
At trial, Carrasco testified he did not remember anything that happened that night because he was so drunk, he did not remember being interviewed by detectives, and denied making certain statements to the detectives.
Sergeant Murillo advised Carrasco that he had already talked to Padilla (his girlfriend), and Padilla said that Carrasco told her that defendant shot Meraz. Carrasco denied saying that to Padilla, and said he did not know what happened.
Detective Murillo asked Carrasco about his prior association with YAK. Carrasco said he was once in the wrong place at the wrong time when people were spray-painting or tagging "YA." Carrasco had tattoos all over his body, including one for Young Assassins. Murillo asked about his Young Assassins tattoo. Carrasco said it was something he did when he was young, and he was no longer involved. Alvarez's pretrial statements
Detectives Rutledge and Moreno testified that they interviewed Alvarez, defendant's nephew, at the sheriff's department on January 9, 2014. They advised Alvarez of the Miranda warnings and he agreed to answer questions.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
When asked about the events at Carrasco's house, Alvarez initially said he did not see anything. Alvarez said he left before there were any fights. His statements conflicted with the information that the deputies had already learned through their investigation.
Detective Moreno called Alvarez a liar, and Alvarez changed his story. Alvarez said he was jumped out of YAK on the morning of the incident, but it happened at another person's house. Alvarez said that Meraz was supposed to drop out of YAK to join the Loma Bakers gang with defendant. Meraz was supposed to be jumped out of YAK at the party at Carrasco's house.
Alvarez told the officers that they took the photograph at Carrasco's house because they were going to have a new beginning for YAK, and " 'kick all those other fake asses out of the YAK.' "
Alvarez said he got into a fight with Carrasco. Defendant got involved to defend Alvarez. Alvarez said defendant was winning the fight with Carrasco; Meraz became involved in the fight to defend Carrasco.
Alvarez initially claimed the gun belonged to Meraz. Later in the interview, he said it belonged to defendant. Alvarez said defendant shot Meraz because when Meraz got involved in the fight between defendant and Carrasco, it was not a fair fight anymore. Alvarez also said Meraz showed "disrespect" to both defendant and the Loma Bakers since Meraz supported Carrasco, even though Carrasco was a member of YAK, and Meraz was supposed to join the Loma Bakers with defendant. Defendant's brother
Angel Montes (Montes), defendant's older brother, was called as a prosecution witness. He was convicted of criminal threats in 2009. A few weeks before this trial, he entered a plea for first degree burglary. Montes testified these crimes were not related to any gang activities.
Montes testified the Loma Bakers was a street gang, it claimed Gage Street as part of its territory, and Gage Street was a smaller group of the Loma Bakers.
Montes initially testified that he was a member of the Loma Bakers, and he had several prominent tattoos signifying Loma, Gage, and Loma Bakers Gage. Montes testified that he was never jumped into the Loma Bakers because he was born and raised on Gage Street. Montes testified that someone who said, " 'Gage on mine' " was just representing the neighborhood.
On further questioning, Montes testified he was not a member of Loma or Gage Street, and his tattoos represented the neighborhood where he grew up.
Montes testified defendant was not a member of Loma or Gage Street. Montes never saw defendant get jumped into either Loma or YAK. He did not want defendant hanging around with YAK and getting in trouble.
The prosecution introduced evidence of numerous Facebook posts, photographs, and conversations between Montes and defendant, which had been obtained pursuant to a search warrant. In one exchange, Montes told defendant to stop "kicking it with lame ass taggers," and that he was an "ELE boy." Montes testified he wrote these messages because he wanted defendant to stop getting in trouble. In another exchange, Montes told defendant that he was going to introduce him to a "main homie," and the meeting would be "all Gage Streeters." Defendant replied that he was concerned about what would happen, and said something about a "burner." Montes testified he did not remember this exchange. A photograph of defendant and Montes showed Montes throwing a sign for Gage Street. Defendant's postarrest statements
On January 10, 2014, Deputy Robert Reed interviewed defendant at the jail after he was arrested in this case. Reed advised defendant of the Miranda warnings, and he agreed to answer questions. At trial, Reed testified about defendant's statements at the interview.
In People v. Elizalde (2015) 61 Cal.4th 523, 538, the California Supreme Court held that a jail gang classification interview constituted a custodial interrogation for purposes of Miranda. Deputy Reed advised defendant of the Miranda warnings before he interviewed him in jail and defendant's statements are thus admissible.
Defendant said that YAK meant "Young Assassins Krew." There were 20 to 50 members from the Rexland Park area and Golden Valley School District in Bakersfield. YAK was a tagging crew, and the members just tagged, hung out, and drank. Defendant said YAK was associated with the Sureños, a Hispanic gang affiliated with the Mexican Mafia. A person was jumped into YAK by being assaulted for 13 seconds to signify allegiance to the Sureños and Mexican Mafia, because the Mexican Mafia claimed the number 13.
Defendant said he grew up in Loma, he had friends who were members of the Loma Bakers, and he still associated with them. Defendant said that he "[had] their backs" and would fight on behalf of the Loma Bakers if a conflict occurred with rival gang members, but he denied being a member of the Loma Bakers. Defendant said he associated with the Sureños in jail because he would probably get into a fight if he was with the Norteños.
Defendant said that on the night of January 1, 2014, two unknown men confronted him, and asked where he was from. Defendant said he was from the Loma because he backed up Loma. The two men stabbed him.
Defendant said he had been a member of YAK for four or five months. He was jumped out on the night that Meraz was shot, and he was no longer a member of YAK. Defendant said they were jumping someone else into YAK that night, and he just wanted to get it over with. Defendant said that YAK had rivals among other tagging crews.
A search of defendant's residence revealed writings which referred to the Loma Bakers and its Gage Street subset. When asked about these materials, defendant would not say who they belonged to. Gang expert testimony
On appeal, defendant's only challenge to the gang enhancement is that there is insufficient evidence that he committed the offenses for the benefit of any gang. We will thus limit our review of Deputy Bravo's testimony accordingly.
Deputy Juan Bravo of the Kern County Sheriff's Department's gang suppression unit testified as the prosecution's gang expert.
Loma Bakers and Gage Street
Deputy Bravo testified the Loma Bakers was a criminal street gang consisting of three or more people, it associated with the color blue, and it had specific hand signs. The Loma Bakers were an older, more established gang with generations of members, and had existed since the late 1960s. The Loma Bakers' traditional rivals were the Varrios Bakers and Colonia Bakers.
Deputy Bravo testified the Loma Bakers claimed specific territory in Bakersfield. The Gage Street neighborhood was in the heart of Loma territory, and Gage Street was one of the territorial cliques within the Loma Bakers.
Deputy Bravo testified that "loma" meant hills, and the gang's territory extended to the hills in the Panorama area of Kern County.
The primary activities of the Loma Bakers were homicides, unlawful possession of firearms, narcotics sales, assaults, and vandalism.
Deputy Bravo testified about specific prior crimes and criminal prosecutions that involved members of the Loma Bakers. Bravo discussed specific details of these cases, and testified they showed that the Loma Bakers were engaged in an ongoing pattern of criminal activity.
YAK and tagging crews
Deputy Bravo testified that YAK meant Young Assassins Krew, Kings, and/or Klik. Bravo testified YAK was a group of three or more people, it used specific hand signs, and it did not associate with a specific color. Bravo testified to his opinion that YAK was a criminal street gang. YAK's territory was the Rexland Park area. YAK's rivals were the Rexland Parque criminal street gang, and a tagging crew known as CSB ("Can't Stop Balling" and/or "Bombing"). YAK's primary activities included vandalism, possession of illegal weapons, and assaults with deadly weapons. Bravo initially believed YAK was a relatively new group but later determined that YAK had been around since the late 2000s.
Deputy Bravo testified that a "tagging crew" was a group that competed with rivals to tag or vandalize buildings with their names in highly visible areas, so their tags will be recognized and respected. A tagging crew can evolve into a criminal street gang that claims particular turf and transitions from vandalism to more serious felonies, or the members will leave the tagging crew and join traditional street gangs. A person could not belong to both a tagging crew and a criminal street gang at the same time.
Deputy Bravo testified that in April 2012, Javier Meraz and another person took property from a Target store, then went into a Michael's store and took spray paint and other property. They went to another building and used the stolen spray paint to write "YA" on the wall, and were arrested at the scene. Meraz pleaded no contest and was sentenced to three years in jail; Bravo did not specify the offense to which Meraz pleaded. Bravo testified about another criminal offense committed by a different YAK member.
Deputy Bravo testified to his opinion that Meraz was an active member of YAK and a member of a criminal street gang at the time he committed the 2012 crime; and that YAK was involved in an ongoing pattern of criminal activity based on these offenses.
The guests at Carrasco's party
Deputy Bravo testified to his opinion that Meraz was still a member of YAK when he was killed, based on Meraz' prior activities and the information from his Facebook page. In December 2013, a photograph was posted on Meraz's Facebook page that showed Meraz, Carrasco, Alvarez, and defendant's brother Isaiah Gomez throwing YAK signs with the caption, "YAK family."
Deputy Bravo testified the photograph taken just before the homicide showed Meraz, Carrasco, Uribe, Erendira, Alvarez, and defendant posing with a gun. It was posted on Meraz's Facebook page that night, just before Meraz was killed. Based on that picture, and other photographs and information on Meraz's Facebook page, Bravo testified that Alvarez, Meraz, and Carrasco were active members of YAK. Carrasco was an active member of YAK based on his Young Assassins tattoo, and a Facebook photograph of Carrasco throwing a YAK sign. Uribe was an active member of YAK based on Uribe's statements to the investigators in this case. Erendira became a YAK member just before the homicide, based on Meraz's Facebook post that someone was jumped into YAK and Erendira's statements to the investigators. Alvarez was an associate of YAK at the time of the shooting based on his statements to investigators.
Defendant and his brother
Deputy Bravo testified defendant was a member of the Loma Bakers Gage Street at the time of the homicide, based on his Facebook exchanges, photographs, and statements from witnesses in this case. He did not know when defendant was jumped into Loma Bakers. Bravo also believed defendant's brother, Angel Montes, was an active member of the Loma Bakers based on his Facebook posts, Bravo's conversation with Montes, and Montes's tattoos.
There was a photograph on defendant's Facebook page that showed defendant with Montes, who was throwing the sign for the Gage Street Loma Bakers. There were photographs on defendant's Facebook page that showed defendant flashing signs common to the Loma Bakers.
In December 2013, there were posts on Facebook between defendant and Montes about how Montes was going to take defendant to meet the established leadership of the gang. Their discussion referred to Gage Street, the Loma Bakers, and the "ele boys," which is how the members of the Loma Bakers referred to themselves. There was also a discussion about how defendant became a member of the gang and Montes's participation in the initiation process; a conversation about firearms; and defendant's comments on January 5, 2014, that " 'I'm ... LOMA GAGE STREET.' "
Deputy Bravo testified he spoke to Montes in February 2014, and Montes was wearing blue clothing consistent with the Loma Gage Bakers and the Southern gangs. Montes said he was from the Loma Bakers gang, he was not a drop out, but he was not active. Montes's prior convictions for criminal threats and burglaries were for offenses that were among the primary activities of the Loma Bakers.
Deputy Bravo testified about a Facebook post on January 1, 2014, where Montes wrote, " 'Gage on mine,' " that was consistent with Montes being an active member of the Gage Loma Bakers. Bravo testified when a gang member used the phrase "on mine," that referred to the reputation of the gang member or the gang itself.
Deputy Bravo testified that when defendant's house was searched pursuant to the warrant, defendant's father-in-law told detectives that defendant was a member of the Loma Bakers, and referred to a Facebook conversation about issues between other gang members. During the search, the officers found a backpack and writings that referred to the Loma Bakers, and that were against YAK and rival gangs.
Deputy Bravo testified about the photograph that was taken at Carrasco's party, shortly before the homicide. It showed all the party guests, including defendant and Alvarez, throwing YAK signs. Bravo explained it was not inconsistent for defendant to be a member of the Loma Bakers and throw YAK gang signs in that photograph, even though he had left YAK. Bravo believed the photograph showed defendant's "love for his homies from YAK" and that he had not turned his back on them even though he had moved to "a more established gang," which was common for members of tagging crews.
Deputy Bravo testified that when Meraz posted the photograph on Facebook that night, defendant apparently tagged it and Montes posted a response to defendant that the picture was disrespectful, referring to the Loma Bakers. Defendant replied to Montes and said something like "my bad."
Deputy Bravo testified that defendant's postarrest statements to Deputy Reed were a significant basis for his opinion that defendant was a member of the Loma Bakers, particularly defendant's description of how he "backed up" Loma when he was jumped by two unknown men on New Year's Eve. Bravo explained:
"The ... context of the conversation is significant for a number of reasons: One, gang members are aware that their admissions of gang participation could be used against them in future prosecutions ... some will carefully state how they're associated with or how they're a member of
a gang by using phrases such as, 'I back up,' or 'I live' in a particular neighborhood. Even gang members with prominent tattoos of the gang will do this to minimize their involvement in a gang or their level in the gang as an admission, which would—could be used—it is very common during criminal investigations and even contacts with gang members that they do this."
Deputy Bravo testified that when defendant was challenged by the two unknown men, he was still willing to announce "what gang he backed up and, as a result, was assaulted." When someone is asked where he is from, that person cannot falsely claim to be a part of a gang unless he was a member. In addition, people who live within gang territory "do not become members of the gang or have to claim allegiance to the gang just because you grew up there." If defendant failed to claim his gang, he would have faced consequences from rivals and his own gang.
Deputy Bravo testified to his opinion that defendant shot Meraz for the benefit of the Loma Bakers. A member who commits a violent murder would benefit and maintain the reputation of the Loma Bakers as a violent organization, whose members are willing to commit murders on the gang's behalf.
Deputy Bravo testified that defendant's statements immediately before the shooting were significant to show his association with the Loma Bakers. Bravo testified:
"I've investigated crimes involving Loma Baker gang members where they have announced ... have said the word 'Loma' at or near the time of the commission of a violent act, a shooting. They do this for multiple reasons. They do this to claim responsibility for the violent act and attribute it to the gang. They do this to instill fear into their rivals, the victims of the crime. And they do this to, they would call it, earn respect. But it's more to instill fear for taking the responsibility of the crime they're committing by announcing the name of the gang." (Italics added.)
Deputy Bravo testified that his opinion that defendant shot Meraz for the benefit of the Loma Bakers was also based on Alvarez's statements about the incident, that defendant shot Meraz because of disrespect. Bravo testified that "[i]f a gang member is disrespected and is not willing to react or deal with the disrespect, his standing, his reputation would be weakened among fellow gang members, rivals, and associates of the gang member who is disrespected." The Loma gang's reputation would diminish if members tolerated such disrespect. If a member of the Loma Bakers did not react to the act of disrespect, other gang members would deal with and punish that person for failing to do so.
DEFENSE EVIDENCE
The defense recalled Detective Rutledge to testify further about his pretrial interview with Erendira. Rutledge testified that Erendira said that he initially went outside Carrasco's house with Meraz, Alvarez, and some other people, and then went back into the house because he forgot his phone charger. Erendira said when he returned outside, Carrasco was fighting with another guy. Erendira said that defendant knocked Carrasco to the ground. After that, Meraz and defendant fought. Defendant pushed Meraz back and yelled, " 'Loma something.' " Defendant took out his gun and fired it twice in the air, and then shot Meraz three times. Erendira thought defendant fired the gun because he was losing the fight with Meraz since Meraz was a larger person.
Sergeant Murillo was recalled as a defense witness and testified about his pretrial interview with Alvarez. Alvarez said he believed the shooting occurred because of "disrespect." Alvarez said that Meraz was supposed to be from "the Loma," and " 'for him to turn his back on [defendant] it was like (unintelligible).' " Alvarez was uncooperative for most of the interview and only offered "little pieces" of information.
Sergeant Murillo also testified about his interview with Uribe. Uribe said that just before the shooting, defendant said he wanted to be from "the Loma" and "earn his stripes." Uribe said defendant was not drunk. Uribe said Alvarez punched Carrasco first, and hit him three times. Carrasco hit Alvarez once. At that point, defendant became extremely upset and began swinging at Carrasco. Meraz jumped in to help Carrasco because it was supposed to be a fair fight between Alvarez and Carrasco.
Sergeant Murillo testified that Uribe said he heard five gunshots. Immediately before the shooting, defendant yelled, " '[F]**k YAK. This is Loma Gage Street on mine.' " Uribe thought defendant fired two shots in the air, and then fired three shots at Meraz.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified he grew up with Jessie Alvarez, his nephew, and they were like brothers. Many people in defendant's family were in gangs. Defendant's brother had tattoos that said Loma and Gage. Defendant grew up with members of the Loma Bakers, and also with people from the Colonia Bakers, Okie Bakers, and Varrio Bakers.
Defendant testified about the Facebook posts obtained through the search warrant. Defendant admitted that a photograph showed him with his brother, Angel Montes, and Montes was flashing a sign for Gage Street. Defendant also admitted that Gage Street was a clique or subset of the Loma Bakers.
Defendant testified about exchanges on Facebook with Montes that occurred in December 2013. In one exchange, Montes wrote " 'Gage on mine.' " Defendant testified that meant that Montes claimed the Gage Street clique of the Loma Bakers. Defendant and Montes also wrote to each other about "putting homies on," which meant initiating prospects and making them "put in work" to join the Loma Bakers.
Defendant's association with the Loma Bakers
Defendant admitted that Montes put him in for the Loma Bakers as "a prospect" or "associate, basically seeing what I was about, seeing if I was able to have what it took to be a Loma Baker Gage Street member." Defendant's nickname was "Booger" because it was supposed to be "Ruger" spelled backwards.
Defendant testified that Montes wrote in a Facebook post that he had to stop " 'kicking it' " with the " 'lame ass tag[g]ers' " because defendant was an " 'ELE boy.' " Defendant testified that Montes was referring to defendant's status as an associate with the Loma Bakers. Montes wrote to defendant that he was on " 'our team' " and to " 'just b ready.' " Defendant testified that meant he was going to be jumped in, but he was never jumped in. Montes also wrote about going to a meeting, and said there would be " 'more homies but all gage streeters' " there. Defendant wrote back that he was " 'always in the hood.' " Defendant testified that " 'the hood' " could refer to where gang members would hang out. The exchange continued, with defendant writing back to Montes that he had " 'my burner' " and " 'I have no worries.' " Defendant testified that he was referring to a gun, but claimed he was just talking "mess" and didn't actually have a gun yet.
Defendant identified a photograph taken in late December 2013 and tagged to his Facebook page. It showed defendant, Alvarez, and Alvarez's brother, and they were throwing the signs for the Loma Bakers. Defendant testified he was an associate of the Loma Bakers when the photograph was taken.
Defendant testified he had never been arrested for a felony, or booked into jail or prison. He did not have any tattoos.
Defendant testified that the phrase " 'pushing the hood' " meant someone was backing up or representing a group, but not necessarily a member. If defendant was with his brother, he would back him even if he was not a member of Loma.
Defendant testified about an incident that occurred on New Year's Eve, a few days before the shooting. He was walking in the territory controlled by the Colonia Bakers gang. He did not have a gun. He was asked where he was from, and he identified from Loma. He was jumped and beaten because he was "guilty by association" with Loma gang members. After this incident, a friend helped him buy a gun from a third party; defendant refused to identify the parties involved. Defendant started carrying the gun with him, and had test fired it once.
Defendant admitted that none of the people who attended the party at Carrasco's had previously threatened him.
Defendant arrives at Carrasco's house with a gun
Defendant testified he heard about the party at Carrasco's house through Meraz's post on Facebook. Alvarez suggested that they attend. Defendant asked for and received permission to attend because they were no longer members of YAK, and he did not want to go "into a household full of them."
Defendant and Alvarez followed Uribe's car to Carrasco's house. Defendant took his gun with him in case anything happened. He had a Glock nine-millimeter semiautomatic with 15 rounds in the magazine.
When he arrived at Carrasco's house, he pulled out his gun to let everyone know that he had it. Everyone wanted to see the gun. He removed the clip and everyone looked at it. After everyone passed it around, defendant put the magazine in his pocket and placed the gun on the shelf. Defendant testified he was the only person with a gun; Meraz did not have a gun.
At one point, defendant left with the other guests to buy more beer. Defendant took the gun with him. When they returned from buying beer, defendant again removed the clip and placed the gun on a shelf.
The photograph at the party
Defendant testified they took the photograph before anyone was rushed in or out of YAK. Defendant testified that in the picture, he and Alvarez posed while making the sign for YAK at the request of the other YAK members. Defendant did so to show respect to the other members of YAK so they would not be criticized for hanging out with defendant and Alvarez, who were YAK dropouts. Defendant knew he had been described as a YAK dropout.
Defendant denied that he was a member of the Loma Bakers when they took the picture. Defendant testified it would not have been okay to throw the YAK sign while a member of the Loma Bakers.
Defendant admitted that when the picture was posted on Meraz's Facebook page that night, defendant wrote, " 'I'm from LOMA GAGE STREET.' " Defendant testified that "[t]hey all knew I was an associate."
Defendant rushed out of YAK
Defendant testified that Erendira was rushed into YAK after they took the photograph. About 15 minutes later, defendant was rushed out by Meraz and Carrasco.
Defendant testified that he decided to get rushed out on the "spur of the moment," and get it over with since he was no longer part of YAK. Defendant testified he pretty much beat up Carrasco when he was being rushed out.
Defendant and Alvarez decide to leave
Defendant testified that after the various rushings, Carrasco was drinking extensively and was "wasted" by the end of the evening. Carrasco was unable to stand and walk. Carrasco fell into Alvarez, and Alvarez tried to catch him and hold him up. Carrasco reacted by making certain comments to Alvarez. When defendant heard Carrasco, he told Alvarez that it was time for them to leave.
Defendant testified he grabbed his gun, reloaded the magazine, cocked the weapon, and put it into his waistband. Alvarez walked toward the front gate and defendant followed him.
Defendant's testimony about the fight
As they reached the gate, defendant heard a commotion behind him. Meraz and Carrasco were following them. Carraso kept asking Alvarez if he was "disrespecting his hood." Defendant believed Carrasco was referring to YAK. Carrasco was drunk, slurring his words, and had trouble standing. Carrasco got within an arm's length of Alvarez, and defendant was standing next to Alvarez.
Defendant testified that he told Meraz to back up, and that if they were going to get into a fight, "it was going to be a one-on-one between them two," referring to Carrasco and Alvarez.
Defendant testified Carrasco "came at" him and asked defendant if he was disrespecting his hood. Defendant said no and replied: " 'I ain't no bitch. If you want to get off, then get off.' " Defendant testified that he meant that, "I'm not gonna let you just try and punk me around. If ... you're gonna fight, then start it."
As set forth above, in contrast to defendant's account of the fight, Uribe and Erendira testified that the fight initially began between Alvarez and Carrasco, and defendant and Meraz watched them.
Defendant testified Carrasco started the fight and swung at him twice. Defendant hit Carrasco once, knocked him out, and Carrasco fell on the ground.
Defendant testified that after he knocked out Carrasco, Meraz "immediately took flight on me, which means, in other words, started assaulting me." Meraz punched defendant in the head, face, and "wherever he could get a clean shot at." Alvarez tried to help but he was suddenly "gone." Defendant did not know if Alvarez left or he was knocked out.
Defendant testified he was five feet nine inches tall, and weighed 215 to 220 pounds, but Meraz was a "really big dude." Defendant tried to hit Meraz back, but he could not tell if he was landing his punches, and he could not stop Meraz from continually hitting him. Defendant realized Alvarez was gone and he might get beaten "to a pulp," and he started to panic. "My ... mind started going just into fear. I - I was just scared. I didn't know what to - I didn't know what else to do."
Defendant fires his gun in the air
Defendant testified Meraz kept hitting him, but defendant was able to push him back and there was a little space between them.
Defendant testified he pulled out his gun at this point, and fired a total of three shots. He was in approximately the same location when he fired each shot. Defendant testified about the sequence of the shots, and what he was thinking when he fired each round.
Defendant testified that when he removed the gun from his waistband, he intended to "just to get [Meraz] away. It was just to shoot in the air ... fire a warning shot, basically, to back up. That's what was the whole purpose of me pulling it out."
Defendant raised his arm up and fired a round in the air. Defendant testified that when he fired that shot, he was thinking: " 'I got to get out of here.' I don't know. I was just scared. I was in fear for my life and the life of [Alvarez]."
Defendant testified he was afraid because Uribe had previously warned him that the other YAK members might set them up. Defendant fired the shot in the air as a warning to Meraz, "just to get him away." Defendant testified he had never seen Meraz threaten anyone in person, but he had heard "through Facebook and things like that."
Defendant testified that when he fired the shot in the air, Meraz backed up because he realized defendant had a gun.
Defendant shoots Meraz
Defendant testified that after he fired the shot in the air, he lowered his arm and used two hands to hold the gun: "Hand in the grip. Other hand underneath to make it steady." Meraz was eight to nine feet away from him. Defendant testified, "I pointed the gun at him, and he saw the gun and charged at me ...." Defendant testified that when Meraz charged at him, Meraz "put his hands up, as ... in a fighting position ...." Meraz "came at me. He came towards me, like, with intentions to reengage in fighting." Defendant testified that when Meraz came at him, "[g]etting beaten and fear" went through his mind because Meraz was bigger than him.
Defendant testified he did not say anything, and he fired the gun twice and hit Meraz. Defendant testified he did not intend to kill Meraz. Defendant was focused on "[g]etting out of there and getting away."
"[THE PROSECUTOR]: [Y]ou made the gesture that after you fired once in the air ... you had pushed Javier Meraz back, you fired once in the air and he was still for a moment, is that correct?
"[DEFENDANT]. Correct.
"Q. Then did you level the gun at [Meraz,] did he come at you? Which happened first?
"A. I leveled.
"Q. Okay. So you've got a gun trained at him, and he comes at you?
"A. Correct.
"Q. And you made a gesture with both fists closed, when you were illustrating for the jury how Javier Meraz approached you; is that correct?
"A. Correct.
"Q. He had his fists closed and you have the gun leveled at him as you fire at him?
"A. Correct.
"Q. And you told the deputies that you were trying to hit his hands?
"A. Correct. I told the deputy that I wasn't - my intentions were not to kill Javier Meraz. They were to wound so I could get away with [Alvarez] so we could go home and not have any more problems or not be hurt anymore.
"Q. But ... to do that, you were trying to hit Javier Meraz in the hands?
"A. Correct.
"Q. Okay. Which were closed and fisted up in, what, the center of his chest?
"A. Correct."
Defendant testified that after he shot Meraz, Meraz said, " 'What the hell?' Well, he said, 'What the f**k?' " Meraz ran into Carrasco's house. Defendant and Alvarez ran to their car and left.
Defendant testified he threw away the gun in a dumpster as he drove away from Carrasco's house. Defendant lied when he later told the deputies that he melted the gun down with a friend's welding equipment.
Defendant's testimony about his pretrial statements
Defendant testified he was arrested four days after the shooting. He was sharing a room with his brother, Angel Montes, and Isaiah Gomez. Defendant was interviewed by deputies after he was arrested.
At trial, defendant was extensively cross-examined about his pretrial statements to the deputies. Defendant testified he did not know the police had already talked to witnesses about what happened before his interview. Defendant testified he initially lied about certain things to protect Alvarez and himself. Defendant falsely claimed they weren't involved in Meraz's death; defendant didn't fight anyone except during the rushing out; no one at the party had a gun; Meraz was alive when he left; Uribe called him later and told him that something happened to Meraz; and anyone at the party could have shot Meraz because a lot of people didn't like him.
Defendant testified he changed his story later in the interview. He admitted that he was at Carrasco's house but claimed he didn't know who was the gunman. Defendant told the deputies that Carrasco wanted to fight Alvarez; defendant told them it wasn't going to happen; Carrasco rushed defendant; Carrasco hit defendant; defendant didn't know what Meraz was doing; the last thing he remembered was the gun and the clip were inside Carrasco's house; and Uribe or Erendira must have fired the gun.
Defendant testified the deputies advised him that Meraz told them what happened before he died; defendant later learned this was a lie. In response to this ruse, defendant said that there was a fight outside Carrasco's house; defendant fought with Carrasco and was holding his own; defendant didn't know what Meraz was doing at that time; and falsely said he didn't have a gun. Defendant told the deputies that YAK members were trying to set him up so they could beat or kill him.
Defendant testified that as the interview continued, the deputies said that Alvarez identified him in a photographic lineup as the gunman. Defendant believed Alvarez had identified him and became upset. He offered to tell the deputies what happened if they let Alvarez go. Defendant testified he later learned the deputies lied to him about Alvarez.
Defendant testified he told the deputies that the incident started because Carrasco "went after" Alvarez. Defendant said Carrasco started fighting with Alvarez, then defendant got involved. Defendant said Carrasco got mad at him, and then defendant and Carrasco "went at it" and started to fight. The deputies asked defendant if Meraz got angry and jumped into the fight, and defendant said yes. Defendant said Meraz hit him, and he hit Meraz once. Meraz hit him on the side, and Alvarez pushed Meraz away from defendant. Defendant said that Meraz attacked Alvarez.
Defendant testified he continued to ask the deputies if they would let Alvarez go, and then decided to tell them what happened. Defendant said that after Erendira was jumped into YAK, Carrasco started to "punk" defendant about getting jumped out. Defendant said that Carrasco tried to make himself feel "supreme," like "he could just walk all over you and you are never gonna do nothing about it." Defendant was jumped out by Carrasco, and defendant beat up Carrasco.
Defendant said Carrasco was very drunk and stumbled into Alvarez. Carrasco tried to swing at Alvarez. Defendant and Alvarez started to leave, but defendant said that " 'something told me to stop, and I did, but I don't know why.' " Defendant said he turned around and saw Carrasco coming towards him.
THE INSTRUCTIONS
As we will explain below, defendant contends the jury was improperly instructed on self-defense, mutual combat, and voluntary manslaughter. We will thus review the instructions that were given on the charged offenses and the defense theories. The charges
Defendant was tried for count I, first degree murder of Meraz (Pen. Code, § 187, subd. (a)); and count III, assault on Meraz with a semiautomatic firearm (§ 245, subd. (b)), with firearm, great bodily injury, and gang enhancements. CALCRIM No. 500
All further statutory citations are to the Penal Code unless otherwise indicated.
Defendant was also charged with count II, unlawfully carrying a loaded firearm by an active gang member (§ 25850, subd. (c)(3)), but the court granted the prosecution's motion to dismiss that count prior to trial.
The jury was instructed with CALCRIM No. 500, the general principles of homicide, that murder and manslaughter were types of homicide, defendant was charged with murder, and manslaughter was a lesser offense of murder.
"A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, that killing is lawful and he has not committed a crime.CALCRIM No. 505
"If there is no legally valid excuse or justification, the killing is unlawful, and depending on the circumstances, the person is guilty of either murder or manslaughter."
Next, the jury received CALCRIM No. 505, justifiable homicide, that the defendant was not guilty of murder or manslaughter if he was justified in killing someone in lawful self-defense or defense of another.
In issue I, post, we will address and reject defendant's contentions that the jury might have been confused about the consideration of both perfect and imperfect self-defense to the charges.
"The defendant acted in lawful self-defense or defense of another if:
"One, the defendant reasonably believed that he or Jessie Alvarez was in imminent danger of being killed or suffering great bodily injury ....
"Two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger.
"And, three, the defendant used no more force than was necessary and reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"The defendant must have believed there was imminent danger of death or great bodily injury to himself or someone else. Defendant's belief must have been reasonable, and he must have acted only because of that belief.
"The defendant is only entitled to use the amount of force that a reasonably person would believe is necessary in the same situation.
"If the defendant used more force than was reasonable, the attempted killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
"If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"The defendant's belief that he or someone else was threatened may be reasonable even if he relied on information that was not true; however, the defendant must actually and reasonably have believed that the information was true.
"If you find that the victim threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"If you find that the defendant knew that the victim had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.
"A defendant is not required to retreat. He is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating...."CALCRIM No. 520
The jury was next instructed on the elements of first or second degree murder with malice aforethought. (CALCRIM No. 520.) CALCRIM No. 571
The jury was also instructed on voluntary manslaughter based on imperfect self-defense as a lesser included offense of murder. (CALCRIM No. 571.)
CALCRIM No. 571 defined voluntary manslaughter based on imperfect self-defense. In issue II, post, we will address and reject defendant's contention that the court had a sua sponte duty to also instruct on the alternative manslaughter theory of sudden impact/heat of passion.
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another.
"If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime.
"The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense or imperfect defense of another if:
"One, the defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury.
"And, two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger.
"But, three, at least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.CALCRIM No. 875
"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"If you find that the victim threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant's beliefs.
"If you find that the defendant knew that the victim had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs...."
The jury was instructed on the element of count III, assault with a semiautomatic firearm. (CALCRIM No. 875.) CALCRIM No. 3470
After reading the instructions for the special allegations, the court read CALCRIM No. 3470, that self-defense was a defense to count III.
"Self-defense is a defense to Count 3.
"The defendant is not guilty of Count 3 if he used force against the other person in lawful self-defense or defense of another.
"The defendant acted lawfully in self-defense or defense of another if:
"One, the defendant reasonably believed that he or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully.
"Two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger.
"And, three, the defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have believed there
was imminent danger of bodily injury to himself or someone else or an imminent danger that he or someone else would be touched unlawfully.CALCRIM Nos. 3471 and 3472
"Defendant's belief must have been reasonable and he must have acted because of that belief.
"The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation.
"If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense or defense of another.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
"If the defendant's beliefs were reasonable, the danger does not need to have actually existed.... [¶]
"The defendant's belief that he or someone else was threatened may be reasonable even if he relied on information that was not true; however, the defendant must actually and reasonably have believed that the information was true.
"If you find that Javier Meraz threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. If you find that the defendant knew that Javier Meraz had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.
"A defendant is not required to retreat. He or she is entitled to stand his ground and defend himself, and, if reasonably necessary, to pursue an assailant until the danger of death or bodily injury has passed. This is so even if safety could have been achieved by retreating.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of another. If the People have not met this burden, you must find the defendant not guilty of Count 3." (Italics added.)
In issue I, post, we will address defendant's contentions that the court should not have given CALCRIM Nos. 3471 and 3472 because they were not supported by substantial evidence and undermined his self-defense claims.
The court next read the following versions of CALCRIM Nos. 3471 and 3472, without a break.
The printed instruction for CALCRIM No. 3471 contains the following written interlineation at the top of the page: "In regard to count three only." (Underline in original.) The People note that while the court did not read this phrase to the jury, the printed instructions were given to the jury.
"A person who engaged in mutual combat or who starts a fight has a right to self-defense only if:
"One,... [h]e actually, and in good faith, tried to stop fighting.
"And, two, he indicated by word or by conduct to his opponent in a way ... that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting.
"And, three, he gave his opponent a chance to stop fighting.
"If a person meets these requirements, then he had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.
"Now, this instruction is only applicable to Count 3, not to Count 1. There's a separate instruction I gave you that may be applicable to Count 1.
"A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force. [CALCRIM No. 3472]."Closing argument
In closing argument, the prosecutor focused on defendant's statements immediately before the shooting, where he cursed YAK and declared "Loma Gage Street" - as evidence that he murdered Meraz for the benefit of the Loma Bakers and to punish Meraz for his disrespect. The prosecutor addressed defendant's claims of justifiable homicide, self-defense, and imperfect self-defense. He argued defendant did not reasonably believe he or Alvarez were in imminent danger of being killed. Defendant was not a small person, and he was able to pull Meraz off Alvarez during the fight, "so there's no imminent danger to [Alvarez] and there's no imminent danger to the defendant." Defendant admitted he held his gun with both hands and aimed it at Meraz's torso, he acted to win the fight and punish Meraz's disrespect, and he did not act to save himself or Alvarez. The prosecutor pointed to defendant's pretrial statements to the investigators, that he was leaving Carrasco's house but he stopped and turned around, and argued such evidence showed defendant was "deliberately going back into the fray" and not standing his ground. The prosecutor argued defendant's statements immediately before the shooting also undermined his claim that he only acted because of his purported belief of imminent danger.
When the prosecutor addressed count III, assault with a firearm, he argued that defendant admitted he was strong enough to push Meraz away, so that he used more force than necessary when he shot Meraz "especially if you've got the time to push him away, retrieve the weapon, yell something about gangs, fire one bullet in the sky, and then level the gun at that person, all of which the defendant did." He argued that defendant did not give Meraz the chance to stop fighting because he fired the gun at him.
As to both counts, the prosecutor argued defendant arguably provoked a fight or quarrel with the intent to create an excuse to use force, particularly because defendant "turned around from that gate and went back into harm's way." Verdicts
As to count I, the jury found defendant not guilty of the charged offense of first degree murder of Meraz, but guilty of second degree murder as a lesser included offense; with the special allegations that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and defendant personally and intentionally discharged a firearm that caused great bodily jury or death (§ 12022.53, subd. (d)).
As to count III, the jury convicted defendant as charged with assault on Meraz with a semiautomatic firearm (§ 245, subd. (b)), with the special allegations that defendant personally used a firearm (§ 12022.5, subd. (a)); personally inflicted great bodily injury; and the offense was committed for the benefit of a criminal street gang.
On September 19, 2014, defendant was sentenced to 40 years to life based on 15 years to life for count I, second degree murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court stayed the terms imposed for count III and the special allegations.
DISCUSSION
I. CALCRIM Nos. 3471 and 3472
Defendant contends the court erroneously instructed the jury with CALCRIM Nos. 3471 and 3472. Defendant argues the court should not have given the instructions because there was no substantial evidence of mutual combat; the jury may have mistakenly believed the instructions applied to both count III and count I, murder, and the instructions violated his due process rights because they prevented the jury from considering his self-defense claims.
A. Instructional Conference
We have already set forth the charged offenses and the relevant instructions. Prior to reading the instructions to the jury, the court conducted a hearing outside the jury's presence, and stated that it had reviewed the instructions with the attorneys in chambers. The court read through the proposed instructions and asked the parties to put any objections on the record.
The court stated that CALCRIM Nos. 3470 and 3471 only applied "in regard in Count 3," and CALCRIM No. 3472 applied "in regard to everything." Neither party objected. The court again asked if there were any objections to CALCRIM No. 3470 and 3471, and the parties said no.
Thereafter, the court read the instructions to the jury, as set forth above.
B. Failure to Object
We first note that defendant did not object to any of the instructions which he now challenges. "Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights. [Citations.] ' "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." [Citation.]' [Citation.]" (People v. Franco (2009) 180 Cal.App.4th 713, 719.)
Defendant acknowledges that he failed to object to the instructions, but argues the court's alleged instructional errors affected his substantial rights. We thus turn to the merits of his instructional arguments.
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 744, rejected on other ground by People v. Black (2014) 58 Cal.4th 912.) The evidence supporting an instruction "must be substantial - that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (People v. Blair, supra, 36 Cal.4th at p. 745.) " 'In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether "there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt ...." [Citations.]' [Citation.] ' " ' "The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon." ' " [Citation.] As an obvious corollary, if the evidence is minimal and insubstantial the court need not instruct on its effects.' [Citation.]" (People v. Larsen (2012) 205 Cal.App.4th 810, 823-824.)
We review the trial court's instructional decisions de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Posey (2004) 32 Cal.4th 193, 218.)
C. Ross and the Definition of Mutual Combat
As set forth above, CALCRIM No. 3471 addressed the circumstances when self-defense is available when a person is engaged in mutual combat or is the initial aggressor. Defendant argues there was no substantial evidence to support this instruction because "the altercation that led to Meraz's death was not 'mutual combat.' " In support of this argument, defendant relies on the definition for "mutual combat" set forth in People v. Ross (2007) 155 Cal.App.4th 1033 (Ross).
In Ross, the defendant was convicted of aggravated assault and battery after he engaged in a hostile verbal exchange with a woman, the woman slapped him, and the defendant responded with a blow that fractured her cheekbone. Over defense objections, the court instructed the jury with CALJIC No. 5.56, the predecessor to CALCRIM No. 3471, that stated that a person charged with assault cannot successfully plead self- defense if he was engaged in mutual combat with the alleged victim. During deliberations, the jury asked the court for a legal definition of "mutual combat." The court failed to provide any definition and told the jurors to rely on the ordinary meaning of the words. (Ross, supra, 155 Cal.App.4th at pp. 1036, 1042-1043, fn. 9.)
Ross criticized the trial court for failing to define "mutual combat" in response to the jury's question, and defined the phrase based on relevant case authorities:
"We are satisfied that 'mutual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Ross, supra, 155 Cal.App.4th at pp. 1046-1047; italics in original.)
Ross held there was insufficient evidence to support the mutual combat instruction in that case because "no reasonable juror could conclude beyond a reasonable doubt that defendant and [the victim] were engaged in 'mutual combat' when he punched her." (Ross, supra, 155 Cal.App.4th at p. 1050.) Ross acknowledged the definition of mutual combat might be different in circumstances that involved more than one defendant and one victim:
"Determining what constitutes mutual combat in the setting of a gang battle or war may present unique difficulties. [Citations.] These difficulties are not present here, where the paradigm is MacBeth versus MacDuff, not the Capulets versus the Montagues." (Ross, supra, 155 Cal.App.4th at p. 1046, fn. 16.)
Ross further held the court's decision to give the instruction was prejudicial because of the court's refusal to define "mutual combat" in response to the jury's question. (Ross, supra, 155 Cal.App.4th at pp. 1049, 1054-1056.) Ross held that if the jury had been properly instructed on the meaning of "mutual combat," the court's decision to give an instruction that was not supported by the evidence would have been harmless because "[a] properly instructed jury would not find 'mutual combat' on the present facts, and would therefore presumably ignore the instruction. But the jury here was not properly instructed. It was left to suppose that the instruction might apply to any exchange of blows." (Id. at p. 1056, italics in original.)
D. CALCRIM No. 3471
Defendant argues that as in Ross, the court erroneously gave CALCRIM No. 3471 because there was no evidence of mutual combat to support the instruction as to count III, assault with a firearm. Defendant asserts that he was friends with Meraz when the confrontation suddenly began. Defendant contends that it was "undisputed" that Carrasco and Meraz followed defendant and Alvarez as they tried to leave the party, there was a brief exchange of words, and then Carrasco started to fight with Alvarez. Defendant contends Carrasco was the initial aggressor, defendant intervened and punched out Carrasco, and the fight was over. "By everyone's account, Meraz initiated the fight with [defendant] and Alvarez by getting involved in their fight with Carrasco."
Defendant acknowledges that "[t]he only fight he agreed to engage in was with Carrasco, but that fight ended quickly after only one punch from [defendant]. There was no agreement to fight between Meraz and [defendant]," and "[i]t was more of an ambush by Meraz." Defendant did not start the fight with Meraz that triggered defendant's "need for self-defense" by drawing and firing his gun, and Meraz was the initial aggressor in the subsequent fight against defendant.
1. Analysis
We disagree with defendant's characterization of the record. Based on the entirety of the record, there was substantial evidence from which a jury composed of reasonable persons could have concluded the existence of the facts underlying CALCRIM No. 3471 on mutual combat. While defendant asserts he was friends with Meraz, there was substantial evidence of some type of dispute between defendant and Meraz that preceded the party. Uribe thought it might have been about a woman. However, Alvarez said Meraz was supposed to drop out of YAK and join the Loma Bakers with defendant, but he failed to do so. When the party guests posed for the photograph, defendant and Alvarez threw the signs for YAK but Alvarez said they did so to get the other people angry.
While Carrasco may have instigated the initial encounter with Alvarez, there was substantial evidence that defendant encouraged Alvarez to fight Carrasco, Meraz backed Carrasco, and defendant and Meraz watched as the fight unfolded. The jury could have concluded that defendant and Meraz took advantage of the situation to take the places of Alvarez and Carrasco, and engage in mutual combat to settle their preexisting differences. (See, e.g., People v. Nguyen (2015) 61 Cal.4th 1015, 1044.)
We further note there are some important distinctions between Ross and this case. In defining mutual combat, Ross distinguished the facts of that case from a situation involving a gang battle or war. While this case did not involve a large-scale gang war, there was clearly substantial evidence that the fight that began between Alvarez and Carrasco, acted as a sort of proxy war between defendant and Meraz, involving the dispute between YAK members and the Loma Bakers. Ross involved one defendant and one victim; in contrast, the jury could have found that defendant and Meraz watched the fight develop, begin, and progress between their surrogates, Alvarez and Carrasco, and that defendant and Meraz mutually decided to square off against each other in place of their respective associates.
In any event, even if CALCRIM No. 3471 was not supported by the evidence, we find the court's decision to give the instruction was not prejudicial. "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Such an error is not of federal constitutional dimension, but an error of state law subject to review under People v. Watson (1956) 46 Cal.2d 818. (Guiton, supra, at p. 1129.) "[I]nstruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.... [T]he appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130.)
Ross held the trial court's decision to give CALCRIM No. 3471 in that case was prejudicial error because the jury was not correctly instructed on the meaning of mutual combat, and thus lacked the correct legal basis to conclude that the instruction did not apply to the facts. In light of Ross, CALCRIM No. 3471 was modified to include Ross's definition of mutual combat, and the jury in this case received the corrected instruction: "A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." (Italics added.) Thus, in contrast to Ross, the jury herein received the correct legal definition of mutual combat, so that it could have concluded that CALCRIM No. 3471 did not apply.
E. CALCRIM No. 3472
Defendant next argues there was no evidence to support CALCRIM No. 3472, that the right to self-defense may not be contrived. Defendant argues that Carrasco provoked the fight against defendant and Alvarez, defendant ended the fight by knocking out Carrasco, and Meraz started the second fight that triggered defendant's need for self-defense. Defendant argues he did not provoke Carrasco or Meraz, and there is no evidence he created an excuse or pretext to assault Meraz.
1. Analysis
As explained above, CALCRIM No. 3472 set forth the legal principle that a plea of self-defense may not be contrived and stated: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
We find there was substantial evidence to support CALCRIM No. 3472 based on the entirety of the record. As set forth above, there was evidence that defendant, the only person armed at the party, encouraged Alvarez and Carrasco to fight. There was evidence that defendant admitted that when Carrasco tried to swing at Alvarez, he started to leave but " 'something told me to stop, and I did, but I don't know why.' " Defendant remained at the scene, encouraged Alvarez and Carrasco to fight, and the jury could have found that he took advantage of the situation to provoke Meraz into fighting with him, to justify his use of deadly force.
Defendant argues that CALCRIM No. 3472 was prejudicial based on the analysis in People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez). In that case, the defendants were brothers and members of a gang, and they were being harassed at their home by members of a rival gang. The defendants and another fellow gang member decided to confront the rival gang members. During the confrontation, one of the rivals may have thrown the first punch, and a fight ensued between the two groups. One brother pulled a gun because he believed his brother was about to be shot by a rival gang member, and he shot and killed the rival. The jury was given CALCRIM No. 3472. The defendants were convicted of first degree murder. (Id. at pp. 944-945.)
Ramirez held that CALCRIM No. 3472 stated "a correct rule of law in appropriate circumstances. Thus, a victim may respond to an attacker's initial physical assault with a physical counterassault, and an attacker who provoked the fight may not in asserting he was injured in the fray claim self-defense against the victim's lawful resistance. [Citation.]" (Ramirez, supra, 233 Cal.App.4th at p. 947.) However, Ramirez reversed the defendants' convictions because the combined impact of CALCRIM No. 3472 and the prosecutor's argument "erroneously required the jury to conclude that in contriving to use force, even to provoke only a fistfight, defendants entirely forfeited any right to self-defense," even if the victim escalated the situation by drawing a gun on the defendants. (Id. at pp. 950, 953.)
"CALCRIM No. 3472 under the facts before the jury did not accurately state governing law. The blanket rule articulated in CALCRIM No. 3472 and reiterated by the prosecutor effectively told the jury, 'A person does not have [any] right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use [any] force.' In effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force. The adversary simply may stab or shoot a person who contrives what he thought would be a shoving match or fisticuffs. According to the prosecutor and the trial court's instruction: 'A person does not have the right of self-defense' in those circumstances." (Ramirez, supra, 233 Cal.App.4th at p. 947, italics added.)
Ramirez does not apply to this case. As noted by the People, there was no evidence that Meraz escalated the conflict in a manner similar to that addressed in Ramirez, or that the prosecutor broadly argued that defendant did not have any right to self-defense during the fight with Carrasco and Meraz, such that the perceived error addressed in Ramirez would not have occurred in this case.
F. Limitation of Instructions to Count III
Finally, defendant notes that the court apparently intended to limit the application of CALCRIM Nos. 3471 and 3472 only to count III, assault with a firearm. Defendant argues the court failed to clarify this limitation and the jury may have considered the instructions for both assault with a firearm and count I, murder. Defendant asserts the court's instructional error was prejudicial because it undermined his claims of perfect and imperfect self-defense.
As set forth above, the sequence of the instructions refutes defendant's claim. The court began by extensively instructing the jury on count I, murder, and addressed justifiable homicide, self-defense, first and second degree murder, manslaughter, and imperfect self-defense. The jury was properly instructed about the application of defendant's claims of self-defense and imperfect self-defense as it related to the murder charge.
Later in the instructions, the court read CALCRIM Nos. 3470, 3471, and 3472 in succession. When the court read CALCRIM No. 3470 on self-defense, it stated that the instruction applied to count III, assault with a firearm. The court then read CALCRIM No. 3471 on mutual combat. After it read the pattern instruction, the court said: "Now, this instruction is only applicable to Count 3, not to Count 1. There's a separate instruction I gave you that may be applicable to Count 1." The court immediately continued by reading CALCRIM No. 3472 on provocation: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." We further note the printed instruction for CALCRIM No. 3471 contains the following written interlineation at the top of the page: "In regard to count three only." (Underline in original.)
While the court did not read this phrase to the jury, the People note the written instructions were given to the jury during deliberations. We presume the jury was able to understand and correlate all of the court's instructions and follow them. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095. We further presume that the jurors were guided by the written versions of the instructions. (People v. Osband (1996) 13 Cal.4th 622, 687.)
We also note that in his closing argument, the prosecutor discussed CALCRIM Nos. 3471 and 3472 in the context of count III. "As to [CALCRIM No.] 3471, there is no lawful defense to Count 3." As for CALCRIM No. 3472, the prosecutor argued defendant did not have the right to self-defense because he provoked the fight with the intent to use force, "which is arguably exactly what the defendant did when he turned around from that gate and went back into harm's way."
II. Manslaughter Instructions
The jury was instructed on voluntary manslaughter as a lesser included offense to count I, murder, based on the theory of imperfect self-defense. Defendant did not object or request any further manslaughter instructions. On appeal, however, he argues the court had a sua sponte duty to also instruct the jury on the alternate manslaughter theory of sudden quarrel/heat of passion.
A. Background
We have already set forth the charged offenses and the relevant instructions. During the instructional phase, the court noted that in the voluntary manslaughter instruction, it had stricken the language about the defendant acting in the heat of passion. Neither party objected. After it reviewed all of the instructions, the court again stated that as to voluntary manslaughter, it had redacted "the last part about the heat of passion," and asked the attorneys if there were any objections. Both the prosecutor and defense counsel said no. Thereafter, the court instructed the jury only on the imperfect self-defense theory of manslaughter.
As with his claims about the mutual combat and provocation instructions, defendant failed to object to the manslaughter instructions or request the alternate theory of sudden quarrel/heat of passion. Defendant again argues that the alleged instructional error violated his substantial rights. We thus turn to the merits of his claim.
B. The Court's Duty to Instruct
" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' [Citations.] 'To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial - that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.' [Citations.]" (People v. Souza (2012) 54 Cal.4th 90, 115-116.)
" 'Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." ' [Citation.] This substantial evidence requirement is not satisfied by ' "any evidence ... no matter how weak," ' but rather by evidence from which a jury composed of reasonable persons could conclude 'that the lesser offense, but not the greater, was committed.' [Citation.] 'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 704-705, original italics.)
C. Murder and Manslaughter
"Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense' - the unreasonable but good faith belief in having to act in self-defense [citations]." (People v. Barton (1995) 12 Cal.4th 186, 199, italics added.)
" ' "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.' [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 581, original italics.)
The jury was instructed on voluntary manslaughter based on defendant's claim of imperfect self-defense.
D. Sudden Quarrel/Heat of Passion
For purposes of the alternate voluntary manslaughter theory of sudden quarrel/heat of passion, there is " 'both an objective and a subjective component. [Citation.] The defendant must actually, subjectively kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.' " (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.)
"The fundamental inquiry when examining heat of passion in the context of manslaughter ' "is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion ... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' [Citation.] Heat of passion is 'a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.' [Citation.] Further, the 'proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.' [Citation.]" (People v. Nelson (2016) 1 Cal.5th 513, 539-539.)
"This, however, 'does not mean that a defendant does not form malice unless he thinks rationally or exercises sound judgment.' [Citation.] For purposes of the heat of passion doctrine, 'provocation is sufficient not because it affects the quality of one's thought processes, but because it eclipses reflection. A person in this state simply reacts from emotion due to the provocation, without deliberation or judgment.' [Citation.] The standard requires more than evidence that a defendant's passions were aroused. The facts and circumstances must be ' "sufficient to arouse the passions of the ordinarily reasonable man." ' [Citation.] Moreover, the defendant must 'actually be motivated by passion in committing the killing'; that is, he or she must be acting ' " 'under the smart of that sudden quarrel or heat of passion.' " ' [Citation.] Accordingly, it is not sufficient that a person 'is provoked and [then] later kills.' [Citation.]" (People v. Nelson, supra, 1 Cal.5th at p. 539, italics in original.)
E. Analysis
Defendant acknowledges that he relied on the theories of self-defense and justifiable homicide, and imperfect self-defense and voluntary manslaughter. However, he contends the same facts which supported his claim of imperfect self-defense also supported the alternate manslaughter theory of sudden quarrel/heat of passion, such that the court had a sua sponte duty to instruct on that alternate theory. Defendant cites his own testimony, that he was "under attack when he drew his weapon and fired, killing Meraz," and that the "jury could have concluded the combination of Carrasco's and Meraz's belligerent demeanor, initiation of a physical confrontation with [defendant] and Alvarez, and the ensuing beating of [defendant] by a much larger man ... who was angry, intoxicated, and determined to 'f**k him up', and to take [defendant] 'out' ... was sufficient to cause an ordinary reasonable person to act rashly and, in fact, provoked [defendant] into shooting (even if he may not have believed use of deadly force was necessary)."
To the contrary, there was no evidence to show that defendant acted under the heat of passion. Instead, defendant testified he was afraid for the safety of Alvarez and himself during the encounter. Defendant further testified that he pushed Meraz back and fired a warning shot in the air, in the hope that would give him time to get away from Meraz, but Meraz charged him and he purportedly fired in self-defense because he was afraid Meraz would keep beating him.
The testimony from the other witnesses also did not support heat of passion instructions, and instead provided evidence that defendant intentionally murdered Meraz with malice aforethought. Defendant knew he was the only person at the party who had a gun. There was no evidence that Meraz was armed or had previously threatened defendant. Uribe and Alvarez testified about possible conflicts that existed between defendant and Meraz before the party, primarily about whether Meraz was supposed to join the Loma Bakers with defendant but showed disrespect by failing to do so. Uribe testified Meraz backed away, and defendant fired warnings shots in the air and called out, "Loma Bakers on mine" and "[f]*** YAK." Defendant then aimed at Meraz and shot him at least two times. Erendira testified that defendant backed away from Meraz, defendant pulled out his gun, defendant made the same statements about YAK and Loma, and defendant fired shots directly at Meraz. Alvarez testified he only heard the gunshots and did not see what happened; Alvarez previously told the deputies that defendant shot Meraz because of disrespect involving the Loma Bakers.
Defendant argues the heat of passion instructions were supported by People v. Thomas (2013) 218 Cal.App.4th 630 (Thomas), which held that the failure to instruct the jury that provocation can negate malice was federal constitutional error. (Id. at p. 633.) In that case, however, there was evidence of a heated and violent argument between the defendant and the victim prior to the shooting. During that altercation, the defendant cried, called out for his father, and was dragged across a parking lot. (Id. at p. 645.) The defendant testified that he had a gun, the victim lunged at him, and the defendant believed he was going for the gun. The defendant further testified he did not intend to fire, but he was afraid, nervous, and not thinking clearly. (Id. at pp. 634-639.) Based on this evidence, Thomas held the jury should have been instructed to consider whether the defendant killed in the heat of passion. (Id. at p. 643.)
As applied to this case, defendant's testimony set forth a different version of the nature and circumstances of the events than addressed in Thomas. Defendant testified that he pushed Meraz away, he pulled out his gun, he fired a warning shot, he aimed the gun directly at Meraz, and Meraz raised his fists and charged him. Defendant repeatedly testified that he feared Meraz was going to beat him. He never testified that he feared Meraz was going to pull a firearm or any type of weapon, or that Meraz was going to wrestle the gun away from him. Instead, defendant testified he fired directly at Meraz in defense of himself and Alvarez, so that they could get away. Defendant's testimony was insufficient to support heat of passion or provocation instructions.
III. Substantial Evidence of the Gang Enhancement
Defendant next contends the gang enhancements found true as to count I, murder, and count III, assault with a firearm, are not supported by substantial evidence. Defendant does not challenge the evidence as to whether the Loma Bakers and YAK were criminal street gangs. Instead, he asserts there was no evidence to show the shooting of Meraz was accomplished to benefit the gang. He further asserts Deputy Bravo's expert testimony was undermined by the lack of evidence that defendant was a member of the Loma Bakers at the time of the party.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
"There are two prongs to the [section 186.22, subdivision (b) gang] enhancement. [Citation.] First, the prosecution is required to prove that the underlying felonies were 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] Second, there must be evidence that the crimes were committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' [Citations.]" (People v. Rios (2013) 222 Cal.App.4th 542, 561.)
The gang enhancement may be applied to a single individual committing a gang-related offense on his own. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139; People v. Rios, supra, 222 Cal.App.4th at p. 563.) Moreover, the defendant's gang membership is not an element of the gang enhancement. (People v. Valdez (2012) 55 Cal.4th 82, 132; People v. Valdez (1997) 58 Cal.App.4th 494, 505.)
There is overwhelming evidence to support the jury's findings on the gang enhancements in this case. Indeed, defendant's own testimony and statements supplied most of the relevant evidence. Defendant admitted that his brother had put him in as a prospect or associate, "basically seeing what I was about, seeing if I was able to have what it took to be a Loma Baker Gage Street member." Defendant also admitted that he openly backed the Lomas, particularly when he was confronted by two rivals a few days before the murder, and confirmed the Facebook posts with his brother about meeting the "homies" and that he was on their team.
Uribe testified about his prior conversations with defendant, that he had left YAK and joined the Loma Bakers, and that he wanted to be rushed out the right way so he could be "certified" as a Loma Baker. Alvarez testified that Meraz was also supported to leave YAK and join Loma with defendant but failed to do so. Alvarez and Uribe believed there was a matter of disrespect between defendant and Meraz before the party.
It was undisputed that defendant posed for the photograph that was taken at Carrasco's house just before the homicide. Alvarez testified that he and defendant threw YAK gang signs to make the other guests angry. Meraz posted the photograph shortly after it was taken; defendant admitted that he wrote, " 'I'm from LOMA GAGE STREET' " on the post. In response, defendant's brother chided him on his Facebook page and defendant admitted that he was "bad" to pose.
More importantly, both Uribe and Erendira testified that when defendant pulled his gun, he declared " 'Loma Bakers on mine' " and " '[f]**k YAK,' " and then fired the fatal shots. Montes, defendant's brother, testified that declaring the gang's name with the phrase "on mine" was representing the "neighborhood."
Defendant argues the gang enhancements must be reversed based on a series of cases which found substantial evidence to support gang enhancements where crimes were committed within particular gang territory, the suspects threw out gang signs before or during the crimes, or that multiple gang members committed the crimes. Defendant contends there is no evidence of such conduct in this case. (See, e.g., People v. Rios, supra, 222 Cal.App.4th at p. 542; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363; People v. Ochoa (2009) 179 Cal.App.4th 650, 662.) As we have explained, however, the gang enhancement may be found true based on a single individual committing a gang-related offense on his own, and that person does not have to be a member of the gang. While defendant repeatedly claimed he had never been officially jumped into the Loma Bakers, he also admitted that he was considered an associate of the gang. Defendant's own words, spoken just seconds before he fired the fatal shots, provide substantial evidence of his specific intent to promote the gang, most likely to "earn his stripes" as a certified member, as he bragged to Uribe.
IV. Remand for Sentencing Evidentiary Hearing
Defendant was convicted of second degree murder and sentenced to 40 years to life. According to the probation report, defendant was born on October 24, 1993, and he was 21 years old at the time of the offenses.
Defendant contends, and the People concede, that the matter must be remanded for the limited purpose of affording both parties the opportunity to make an accurate record of defendant's characteristics and circumstances at the time of the offense, in anticipation of a future parole hearing. (People v. Franklin (2016) 63 Cal.4th 261, 283-284; People v. Perez (2016) 3 Cal.App.5th 612, 619.)
DISPOSITION
The matter is remanded for the limited purpose of affording both parties the opportunity to make an accurate record of defendant's characteristics and circumstances at the time of the offense, as set forth in People v. Franklin, supra, 63 Cal.4th 261.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.