Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 02NF3143, Francisco P. Briseno, Judge. Affirmed.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Gerardo Lopez challenges his conviction for first degree murder with special circumstances. He contends insufficient evidence showed he committed the murder during the commission of a kidnapping or attempted robbery. Thus he asserts the evidence is insufficient to support the first degree murder conviction. He also asserts the evidence was insufficient to support any of the additional elements of the special circumstances finding. Defendant further contends the court erred by failing to instruct the jury on false imprisonment, a lesser included offense to kidnapping. Finally, he claims the prosecutor committed prejudicial misconduct by stating a single vote of not guilty would lead to an acquittal. We reject defendant’s contentions, and affirm.
FACTS
The victim, David Montemayor, managed a trucking company in Rancho Dominguez. His coworkers believed he operated a side business under the table, pocketing the receipts. He was rumored to have thousands of dollars in cash stored in a coffee can at his Buena Park home.
Montemayor left for his 15-minute commute to work one morning around 6:00 a.m. An employee arrived at work later that morning to find the door to the business open; Montemayor usually unlocked it when he got to work. But Montemayor was not there.
Instead, Montemayor was back in Buena Park a half-hour after he left for work, driving down his street. A blue truck was closely following Montemayor. The two vehicles stopped about a mile past Montemayor’s house.
Montemayor, defendant, and another man (Antonio Macias) got out of the car. Defendant and Macias yelled at Montemayor, screaming “fuck you” and something like “where’s my money?” Montemayor appeared to be begging or pleading. Defendant and Macias shot at Montemayor. Montemayor was hit in the head, and died.
The two men got into the blue truck and drove away. Bystanders alerted the police, who chased the men. An officer saw the men throw two handguns out of the blue truck during the chase. The police later found three handguns, including the two guns fired at Montemayor, near this area.
The police eventually stopped the blue truck, and arrested defendant and the truck’s driver, later identified as Alberto Martinez. Martinez had a piece of paper containing an automobile club membership number for a man named Anthony Navarro. Meanwhile, Macias fled; the police apprehended him after shooting him in the shoulder. The police found Montemayor’s driver’s license on him.
Near the location where Macias exited the vehicle, the police found a cell phone registered to Navarro’s girlfriend, Sarah Ochoa. Macias’s fingerprints were on the cell phone, and records would show the cell phone had been used to place several calls from Rancho Dominguez between 6:08 a.m. and 6:30 a.m. Seven of the phone calls were made to or from a telephone number registered to someone with the same address as Navarro. One phone call was received from a telephone number listing “Myra Corona” as a contact person. Mira Corona was a former employee at Montemayor’s trucking company.
That night, the police found several gang-related items during a search of defendant’s Pacoima home. These included references to the “Pacoima Flats” criminal street gang. The police also found several references to “Sniper.” “Sniper” and “Droops” were written in a gang “roll call” attendance list.
Next, the police searched Navarro’s home in the Santa Clarita Valley. They found several references to the Pacoima Flats gang and “Droopy” or “Droops.” They also found a certificate of title for a Chevy Blazer — the blue truck that had followed Montemayor — showing title in the name of Daniel Chaidez. A speaker box in the blue truck had “Droopy” written on it.
Finally, the police searched Navarro’s car, a Lexus. They found a piece of paper with Montemayor’s home address and telephone number on it. It also had the words “one hand” written on it — Montemayor had only one arm. The police also found a picture of Mira Corona.
The People filed an information charging defendant with one count of murder (Pen. Code, § 187, subd. (a)) and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). The information contained special circumstance allegations that defendant committed the murder in the commission of a kidnapping and an attempted robbery. (§ 190.2, subds. (a)(17)(A) [robbery] & (a)(17)(B) [kidnapping].) It further alleged the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang, (§ 186.22, subd. (b)(1)) and that defendant was vicariously liable for the discharge of a firearm causing death in a murder committed to benefit a criminal street gang. (§ 12022.53, subds. (d) & (e)(1).)
All further statutory references are to the Penal Code unless otherwise stated.
The information also charged defendant with one count of conspiracy (§ 182, subd. (a)(1), with a related gang enhancement (§ 186.22, subd. (b)(1)). The court later dismissed this count and the related gang enhancement on the People’s motion.
At trial, a gang expert testified defendant, Macias, Martinez, and Navarro were members of the Pacoima Flats gang. He concluded defendant actively participated in gang activities. The expert further testified Navarro used the moniker, “Droopy, ” and defendant used the moniker, “Sniper.”
The jury convicted defendant on all counts, and found the special circumstance allegations and the gang and firearm enhancements true. The court sentenced defendant to life in state prison without the possibility of parole. It further imposed a consecutive sentence of 25 years in state prison for the firearm enhancement.
In a separate trial, a jury convicted Montemayor’s sister of first degree murder with special circumstances for her role in arranging the murder. We affirm her conviction in People v. Perna (July 23, 2007, G036905) nonpublished opinion.
DISCUSSION
Substantial Evidence Supports the First Degree Murder Conviction
Defendant contends insufficient evidence supports his conviction under the felony murder theories on which the case was tried, namely, murder committed in the perpetration of a kidnapping, and murder committed in the attempted perpetration of a robbery. (§§ 187, subd. (a), 189 [first degree murder includes any “murder . . . committed in the perpetration of, or attempt to perpetrate . . . robbery [or] . . . kidnapping”].) “‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “view the evidence in the light most favorable” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
Substantial Evidence Shows the Murder Was Committed in the Perpetration of a Kidnapping
With regard to the kidnapping, defendant contends the evidence failed to show he or the other perpetrators used force or fear to compel Montemayor to leave his workplace. (See § 207, subd. (a); see also People v. Majors (2004) 33 Cal.4th 321, 326-327 (Majors).) He notes no direct evidence conclusively establishes what happened at the trucking company, and suggests Montemayor may have voluntarily taken the men back to his neighborhood.
But this bare possibility does not overcome the substantial evidence supporting the verdict. (See Ochoa, supra, 6 Cal.4th 1206 [appellate court views facts in the light most favorable to the verdict].) The circumstantial evidence supports a finding that three armed gang members waited for defendant to show up at work in the early morning hours, and then drove off with him soon after he arrived. No evidence suggests Montemayor knew the men. They drove off in two cars, belying any intention all four men would return to Montemayor’s work. The gang members confiscated Montemayor’s driver’s license, and proceeded toward his house. Shortly after they passed Montemayor’s house, defendant and Macias accosted Montemayor in the street and shot at him, one of them killing Montemayor. No reasonable explanation exists why Montemayor would voluntarily leave work with three armed gang members he did not know and who would soon kill him. The jury could have reasonably concluded that defendant and his fellow gang members took Montemayor by force or fear.
Substantial Evidence Shows the Murder Was Committed in the Commission of an Attempted Robbery
Sufficient evidence also shows defendant was liable for murder in the perpetration of an attempted robbery. Defendant contends no evidence conclusively demonstrates Corona heard the rumor about Montemayor’s coffee can full of cash, or told Navarro about the rumor. Defendant again ignores the standard of review on appeal. The jury could reasonably infer Corona overheard the widespread workplace rumor while she worked at Montemayor’s trucking company. The cell phone records and the photograph in Navarro’s car show a link between Corona and Navarro. That Navarro’s fellow Pacoima Flats gang members drove to Rancho Dominguez at 6 a.m. to wait for Montemayor, drove him to his house where he kept the rumored coffee can full of cash, and then screamed at him about money, cements the link. A jury could reasonably infer the perpetrators drove Montemayor to his house to rob him.
Defendant further contends the evidence disproves any attempted robbery because the coffee can was not in Montemayor’s “immediate presence” when he was killed. (§ 211 [robbery requires taking property “from [another’s] person or immediate presence”].) Defendant thus confuses the elements of robbery with those of attempted robbery. “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.” (§ 21a.) The direct act needed to show an attempted robbery must go “beyond mere preparation, ” but only barely. (People v. Dillon (1983) 34 Cal.3d 441, 453.) It need not constitute an element of the crime. (Ibid.) “As long as the trier of fact is convinced beyond a reasonable doubt that the defendant intended to commit a crime and was in the process of attempting to carry out that intent, no public purpose is served by drawing fine distinctions between those who have managed to satisfy some element of the offense and those who have not.” (Ibid.) The evidence discussed ante reasonably suggests defendant and his fellow gang members had the specific intent to take the coffee can once Montemayor led them to it. Kidnapping Montemayor, forcing him to drive to Buena Park, and demanding the money at gunpoint were direct acts done toward the commission of the robbery, “beyond mere preparation.” (Ibid.; § 21a.) This evidence sufficiently establishes the attempted robbery.
Substantial Evidence Supports the Special Circumstance Findings
The jury found true two special circumstances: murder in the commission of a kidnapping and murder in the commission of an attempted robbery. (§ 190.2, subds. (a)(17)(A) [attempted robbery], (a)(17)(B) [kidnapping].) To find the special circumstances, the jury must find defendant was the actual killer, or, if not the actual killer, had either the specific intent to kill, or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (b), (c) & (d).) The evidence did not establish whether defendant or Macias was the actual killer. But it showed defendant had a specific intent to kill: he fired a handgun at Montemayor. Defendant does not contend he lacked a specific intent to kill.
Rather, defendant’s only challenge to the special circumstance findings is that insufficient evidence established the underlying kidnapping and attempted robbery. But the substantial evidence reviewed in the felony murder discussion ante shows otherwise. Thus, defendant’s challenge to the special circumstance findings fails.
This evidence also shows defendant acted with reckless indifference to Montemayor’s life while acting as a major participant in the kidnapping and attempted murder. (§ 190.2, subd. (d).)
No Evidence Supported a Jury Instruction on False Imprisonment
Defendant contends the court violated its sua sponte duty to instruct the jury on false imprisonment as a lesser included offense to kidnapping. “False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236) It is a lesser included offense of kidnapping, which also requires the defendant use force or fear to move the victim some substantial distance. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233 (Ordonez); Majors, supra, 33 Cal.4th at pp. 326-327; § 207.) Jury instructions on lesser included offenses “are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Defendant contends a reasonable jury could have concluded Montemayor left work with the gang members voluntarily, and that his personal liberty was violated only when defendant and Macias aimed handguns at him. Hardly.
“[A] lesser included offense instruction on false imprisonment is not required where the evidence establishes that defendant was either guilty of kidnapping or was not guilty at all.” (Ordonez, supra, 226 Cal.App.3d at p. 1233.) No evidence “‘substantial enough to merit consideration’ by the jury” suggests Montemayor voluntarily accompanied the three armed gang members who would later shoot him dead. (Breverman, supra, 19 Cal.4th at p. 162.) All of the evidence discussed ante suggests the contrary. The court did not err by failing to instruct the jury sua sponte on false imprisonment.
We thus reject defendant’s contention his counsel rendered ineffective assistance by failing to request a jury instruction on false imprisonment.
Admitting Evidence of Defendant’s Gang Moniker Was Not Reversible Error
Defendant claims the court erred by admitting evidence of his gang moniker, “Sniper.” He contends the evidence was unduly prejudicial because his moniker suggests a willingness to shoot people. (Evid. Code, § 352.) “The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin).)
Evidence of defendant’s gang moniker was highly probative. That his moniker appeared on the same roll calls as Navarro’s moniker showed their shared gang affiliation and defendant’s source of his knowledge of the rumored coffee can full of cash. Thus, evidence of his moniker tended to show the elements of the substantive offense of active participation in a criminal street gang and defendant’s motive for the kidnapping and attempted robbery. (Olguin, supra, 31 Cal.App.4th at p. 1369 [gang evidence admissible when “relevant to issues of motive and intent].) And the danger of unfair prejudice was minimal. That defendant shot at Montemayor with a handgun was shown by direct eyewitness testimony. The jury was unlikely to conclude defendant shot at Montemayor based on his moniker rather than the eyewitness testimony. Given the high probative value of defendant’s gang moniker and the slight danger of undue prejudice, the court did not abuse its discretion in admitting evidence of the moniker.
Section 186.22, subdivision (a) states, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment . . . .” Section 186.22, subdivision (b)(1), provides a sentence enhancement for any person convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
At any rate, any error in admitting the evidence of defendant’s moniker was harmless. The evidence against him was staggering. And the court instructed the jury not to consider any gang evidence “to prove that the defendant is a person of bad character or that he has a disposition to commit crimes.” The jury is presumed to heed instructions. (People v. Wash (1993) 6 Cal.4th 215, 263.) No reasonable probability exists that defendant would have obtained a more favorable result had the evidence of his moniker been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Alcala (1992) 4 Cal.4th 742, 790-791 [evidentiary errors reviewed under Watson standard].)
The Prosecutor Did Not Commit Prejudicial Misconduct
Defendant contends the prosecutor misstated the law to the jury. The prosecutor argued at the close of his rebuttal argument, “And if [the defense] can get just one of you to run down some rabbit trail and say there is [sic] too many holes, that’s all it takes, and [defendant] doesn’t get held accountable. [¶] [O]bjec[tion]. [¶] . . . [¶] That’s why I’m asking you, and I’m telling you, it is your job, and it’s your job alone, only you twelve can hold [defendant] accountable . . . .” Defendant contends this comment improperly pressured the jury into reaching a unanimous verdict of guilt by implying defendant would be acquitted if they hung.
We doubt the jury drew the purportedly improper inference. “‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’” (People v. Ayala (2000) 23 Cal.4th 225.) We cannot assume the jury drew the most damaging inference from the challenged remark. (People v. Frye (1998) 18 Cal.4th 894, 970.) The overwhelmingly more likely inference from the prosecutor’s statement is that defendant “doesn’t get held accountable” in this action if the jury cannot reach a unanimous guilty verdict, not that defendant “doesn’t get held accountable” at all, ever.
Moreover, the court’s instructions cured any error in the prosecutor’s argument. At the outset of its instructions, it told the jury, “You must accept and follow the law as I state it to you . . . . If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” (CALJIC No. 1.00.) It further correctly instructed each juror to “base your decision on the facts and the law, ” without being “influenced by . . . conjecture” (CALJIC No. 1.00), and to “consider the evidence for the purpose of reaching a verdict if you can do so.” (CALJIC No. 17.40.) The court embellished upon CALJIC No. 17.40, adding, “If, after a full evaluation of the case, the evidence, each other’s consideration and the law, you are unable to reach a unanimous decision, then that is part of the law.” “We presume that the jury heeded the admonition[s] and any error was cured.” (Wash, supra, 6 Cal.4th at p. 263.)
Finally, we reverse convictions for prosecutorial misconduct only if it is reasonably probable that a more favorable result for the defendant would have been reached absent the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Given the abundant evidence against defendant, he could not reasonably expect a more favorable result had the prosecutor not made the challenged remarks.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.