Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-047889.
SCOTLAND, P.J.
A jury convicted defendant Juan Rodriguez of conspiracy, shooting at an inhabited dwelling, participation in a criminal street gang, being a convicted felon in possession of ammunition, and possessing and transporting controlled substances. It sustained gang-association enhancements as to each of these offenses (other than the substantive gang offense). The jury acquitted defendant of being a convicted felon in possession of a firearm, and of contemporaneously possessing a firearm and controlled substances. The trial court sentenced him to state prison for an indeterminate term of 15 years to life for the home-shooting and its gang enhancement, and imposed a concurrent determinate sentence composed of middle terms for the remaining offenses and enhancements (staying those for conspiracy and possession of controlled substances).
The jury also sustained an allegation that a principal in the home-shooting had fired a gun, but the court stayed sentence on this enhancement.
At the close of evidence, the prosecutor had moved to strike allegations that defendant had been personally armed with a gun during the offenses, and focused in closing argument on theories of vicarious liability (although he also raised the possibility of defendant’s direct liability in his final argument).
On appeal, defendant challenges use of his statements to the police; the sufficiency of the evidence to establish his connection with the home-shooting; prosecutorial misconduct in arguing mere speculations; misuse of the opinion of a gang expert on the issue of his intent; the failure to instruct on a lesser shooting offense; and the adequacy of the instructions on vicarious liability and flight. As we agree there is insufficient evidence and will reverse the convictions based on the home-shooting, this moots the remainder of his arguments (none of which includes any claim that they have any prejudicial impact on his convictions either for possessing ammunition, or for controlled substances).
Facts
Living in a home on Atkinson Street south of Hickory Street were two brothers (the oldest and middle sons) known to be active in a Latino gang. A car associated with the eldest was in the driveway. The middle son, who had been in the garage, went outside to relieve himself on the side of the house at some point before 2:00 a.m. He heard a thump that sounded like a bottle being thrown against a car. (A similar incident had happened the previous week.) Walking out front, he saw a white Jeep Cherokee about 40 feet away driving south from his house with someone hanging out of the passenger window. There seemed to be three occupants, all wearing black hoods, none of whom he could identify. At the intersection with Church Street, the vehicle made a U-turn and came back toward his home. He ran inside to awaken his older brother. Before he returned to the front door, he heard multiple gunshots. He did not notice if any of them penetrated the exterior of his home. Someone called the police at some point after the shooting, who arrived not “long” after the call.
Although ordinarily we would not identify the location of a criminal event, in the present case its proximity to the location of the initial observation of defendant is pertinent.
On cross-examination, a police officer stated that the middle brother had reported an uncertainty about the number of occupants but thought that there were only two; the witness disputed this account of his statement.
The middle son noted that he and his brother did not get along with people associated with a rival Latino gang. One of this gang’s members lived up the block; he was known as Lucky and was just short of 14 at the time of the shooting. Another, known as Puppet, lived nearby on Washington Boulevard, and had vied with the middle son for the attentions of a girl. He did not testify to any familiarity with the defendant.
An officer on patrol heard a 1:51 a.m. dispatch about the incident. About 10 minutes later, the officer saw a white Jeep Cherokee turning south from Elefa Street onto Washington Boulevard. There were two occupants. The officer followed the Jeep closely as it proceeded toward Interstate 80. The Jeep did not make any effort to evade this surveillance. At one point, the officer veered away upon hearing of the pursuit of another suspected vehicle, but returned after less than a minute upon hearing that it was not involved in the shooting. The officer eventually detained the vehicle on westbound Interstate 80 after the arrival of sufficient additional officers.
While the officer insisted that this intersection was two to three miles from the home on Atkinson, standard reference maps (of which we may take judicial notice subject to any objection of the parties (Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1021, fn. 2)) show that in fact it is less than a mile and a half away; a defense investigator determined it was 1.2 miles and could be driven at 25 miles per hour in no more than four minutes.
Defendant was the passenger in the Jeep. He had tattoos that were indicia of the rival Latino gang, he was wearing a buckle with similar indicia, and a cap with similar indicia was on the floor at his feet. On the back of the driver’s seat was a pair of crumpled brown work gloves, one of which had gunshot residue on it and the other of which had particles that were likely residue. Behind the passenger seat was a brown bandana, tied inside of which were three live .38 rounds and one live .357 round. The police did not find any casings in the vehicle.
Also near his feet and outside the passenger door were the controlled substances and related paraphernalia.
During this detention, defendant told the police that he had ridden with the driver to a home on Washington Boulevard near Elefa Street. He did not indicate the time that they had arrived. The driver left for a short period of time with some others (whom defendant did not identify). On the driver’s return, defendant left with him to go home. Defendant denied any involvement in the shooting, and did not indicate any familiarity with the victims. When the police went to the residence at 5:00 a.m. that defendant had identified (which they in fact had known from previous contacts was the residence where Puppet lived with his parents), they could not get anyone to answer the door.
In the meantime, the police had arrived at the scene of the shooting about 2:00 a.m. They transported the middle son to the location where they had detained defendant. He could not positively identify the vehicle as the one he had seen outside his home. The police did not ask him to identify defendant or the driver. The police found five bullet holes in the street façade of the Atkinson home. Their age was indeterminate (and the prosecution did not ask the residents whether these were attributable to the gunfire they had heard). They determined only that the firearm must have shot at the home from the general direction of Hickory Street. The police retrieved two expended bullets inside the home on the floor in the living room and the hallway. They left three other bullets embedded in the walls. They did not find any expended casings outside. According to the prosecution expert, the expended bullets did not appear to have been fired from a semiautomatic firearm (which would ordinarily eject casings). The live rounds found in the Jeep were designed for use in a revolver, which ordinarily does not eject casings. The expended bullets were consistent with the caliber of the live rounds but were copper-jacketed, while the live rounds were lead-tipped, and therefore they did not match. Nothing would prevent someone from mixing two different types of ammunition in the same revolver. The police did not recover the firearm involved in the incident.
The defense expert asserted that one could not tell from mere inspection whether the spent bullets came from a semiautomatic firearm or a revolver, and believed that it was possible that they were from a semiautomatic .9-mm firearm.
In an interview after his arrest, defendant initially reiterated that he and the driver (whom he had known for three years) had gone from their homes in Sacramento in the middle of the night to an ongoing barbeque on Washington Boulevard, where defendant did not know anyone else. The driver left with four individuals, among whom were people he had heard addressed as Puppet and Lucky. Defendant did not know where they were going. The driver returned with only Lucky. Defendant and the driver then headed home. Defendant never saw a gun while he was there.
When his interrogator challenged defendant’s account, defendant implored her to consider his circumstances. He said all of the others were part of an affiliate of the rival gang active in Roseville and Sacramento (including the driver, who had a high rank in the gang) with which his own was only associated. When the officer told him that, because of this affiliation, they would stick together to foist blame onto him, he admitted that the gathering was in fact an “initiation” party, at which someone handed one of two young recruits a handgun, who selected the Atkinson home as a target because its residents had contrary affiliations and lived near him. (While defendant had previously mentioned Lucky, he did not identify the juvenile in this account.) The driver left with Puppet and the juvenile, who was sitting in the back seat. After the police gave the false impression that they had found gunshot residue on his hands, defendant explained that he had handed a gun magazine back to the juvenile at the gathering after the latter had dropped it out of a bag. Defendant maintained that he did not have any involvement in the shooting.
Both Lucky and Puppet invoked their privilege against self-incrimination before trial. In an interview, Puppet had admitted that an initiation took place for Lucky and another juvenile known as Spooky, but asserted that this had taken place before the shooting (on which night he was at his home on Washington Boulevard).
Other than the opinions of an expert on gangs regarding the likely affiliations of various principals involved in this case, and whether the shooting could have intentionally furthered gang purposes, this was the entirety of the prosecution’s case against the defendant.
Discussion
Although People v. Johnson (1980) 26 Cal.3d 557 (Johnson) is most often cited for the premise of resolving all conflicts in the evidence or inferences in favor of the People (id. at p. 576), too often ignored is its admonition that we must determine if a reasonable trier of fact could have found a defendant guilty (id. at p. 578). To that end, we must discern if the evidence is “substantial,” i.e., “reasonable, credible, and of solid value.” (Ibid.)
Although inferences may constitute substantial evidence in support of a judgment, they must be the probable outcome of logic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633; Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585; People v. Berti (1960) 178 Cal.App.2d 872, 876.) “A legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established.” (Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590, 602; accord, People v. Stein (1979) 94 Cal.App.3d 235, 239.) Disbelieving a witness does not entitle a trier of fact to infer the opposite of the testimony. (People v. Drolet (1973) 30 Cal.App.3d 207, 217; People v. Samarjian (1966) 240 Cal.App.2d 13, 18 [“The People must prevail on their own evidence, not on a vacuum created by rejection of a defense”].) A doubtful or uncertain fact must inure to the detriment of the party with the burden of proof on the issue. (Reese v. Smith (1937) 9 Cal.2d 324, 328; People v. Tatge (1963) 219 Cal.App.2d 430, 436.) Whether an inference rationally flows from the evidence is a question of law. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45; Berti, supra, 178 Cal.App.2d at p. 876.)
Our dissenting colleague has mistakenly concluded that we are “misapply[ing] the . . . standard of appellate review,” resulting in a “miscarriage of justice,” because we are “second-guessing the jury’s factual findings” without an appreciation for the “dynamics of the trial.” (Dis. opn., post, at pp. 1, 14.) However, our resolution of this issue does not represent a usurpation of the jury’s role. We are commanded under the constitutional dictates of due process (Johnson, supra, 26 Cal.3d at pp. 576-578) and the quoted authorities to make certain that a criminal conviction rests on facts and rational inferences, not rank speculation. The mere fact that 12 jurors sitting in a courtroom might agree on a particular speculation at the urging of the prosecution does not insulate that speculation from appellate review any differently than a finding based on inadmissible evidence. As evidenced by our dissenting colleague’s point of view, even the best-intentioned may go astray, and the ordinary correction of error does not undermine the role of the jury in our criminal justice system.
Mere presence at the scene of a crime, even if combined with knowledge of its commission and the failure to prevent it, does not amount to aiding and abetting, although these are factors for a jury to consider in determining vicarious criminal liability. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) “[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent . . . of . . . encouraging or facilitating commission of[] the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) In conspiracy, there must be either evidence of an express agreement to commit a crime, or conduct from which one rationally can infer an implicit agreement. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) Finally, the offense of active participation in a criminal gang requires (in addition to the tautological element of active participation in a gang) knowledge of the pattern of criminal behavior of the gang, and encouraging or assisting any felonious activity. (People v. Robles (2000) 23 Cal.4th 1106, 1115.)
Even if we rely on defendant’s statements to the police (use of which he challenges on the grounds that he lacked fluency in English sufficient to understand his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], and that there was insufficient evidence of the competency of the translator during his questioning (Correa v. Superior Court (2002) 27 Cal.4th 444, 457-458)), the prosecutor proved at most that defendant had accompanied a veteran member of a local gang to a gathering in Roseville, who likely left the affair with an unknown number of unknown passengers to shoot at the home of local antagonists unknown to the defendant. Later, defendant was a passenger in the Jeep (after an unknown interval of time had elapsed) in close proximity to the apartment at which the gang had gathered, which was only two to three minutes away from the home-shooting.
Even under the most efficient of scenarios--in which the victims immediately called the police, who then immediately issued a dispatch--more than 10 minutes had elapsed between the presence of the Jeep at the shooting and the presence of defendant in the Jeep. The Jeep then began its ordinary route back to their homes in Sacramento without displaying any consciousness of guilt despite constant visible police surveillance.
For which reason we doubt the propriety of the instruction on flight (People v. Roybal (1998) 19 Cal.4th 481, 517), but the point is moot as to the reversed convictions, and is manifestly harmless beyond a reasonable doubt as to the remainder (People v. Crandell (1988) 46 Cal.3d 833, 870).
On these facts, there might be a reasonable inference that defendant continued to accompany the driver in the Jeep at the time of the shooting (even though it is also plausible that the Jeep had time to pick him up on Elefa Street afterward). This inference, however, simply strands the reasonable trier of fact at the evidentiary dead end of mere presence with knowledge of the purpose of the driver and any other occupants of the Jeep, without any direct evidence from which to infer defendant’s commission of any act that he intended to encourage or facilitate the shooting, or fired the shot on his own (a theory even the People abjured trying to establish), or had any sort of agreement with the others to commit this crime against people who otherwise were strangers to him.
The dissent’s reiteration of the facts that we have related (dis. opn., post, at pp. 3-6) adds nothing (beyond giving recognition to the names of the gangs and individuals involved) other than an explicit attribution to defendant of the desire that the drive-by shooting take place. It also incorrectly suggests that we have omitted the nature of the “party” that defendant attended (id. at p. 10), when in fact we have noted that defendant admitted it was to initiate gang members (ante, at p. 7). Neither the former permissible inference (which attacks a straw man; nothing we have said suggests that defendant was a passenger innocent of the purpose of the trip) nor the latter fact advance a rational trier of fact past this evidentiary dead end. The dissent’s colorful characterizations of our conclusion do not conceal its failure to identify a single act of encouragement or facilitation beyond the likely presence of defendant in the car. Nothing in the evidence indicates that defendant’s mere presence in the car in addition to the “veterano” driver who held “a power of position in the gang” (ibid.) encouraged or facilitated the shooting. To ascribe any other act to defendant is speculation, not the choice of a permissible alternative inference, and therefore insufficient to support the verdict.
The People, like the trial court in denying defendant’s motion to acquit, and the dissent, attempt to use the efforts of defendant to account for mythical gun residue on his hands and the evolving nature of his statements to the police as supplying evidence of a consciousness of guilt from which to infer facilitation or encouragement. However, “consciousness of guilt” is not some protoplasmic substitute that can flow into and fill evidentiary voids in the People’s case. It is merely another inference, but is insufficient itself to prove guilt of an offense. Finding a consciousness of guilt on defendant’s part would assist the jury in deciding whether or not to infer his presence in the Jeep during the shooting. However, any further use of this inference to determine his conduct in the Jeep strays too far out onto the thin ice over a lake of speculation.
As a result, the evidence is insufficient to support any theory of vicarious liability for the shooting (let alone defendant’s direct liability) as a consequence of being present in the Jeep. Principles of double jeopardy preclude the People from retrying the defendant (Burks v. United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1]), so we shall direct the trial court to dismiss the convictions based on the shooting. As it is unknown whether the court would structure the determinate term in the same manner in the absence of the indeterminate sentence, we shall remand for resentencing.
Disposition
The convictions for conspiracy, criminal gang participation, and shooting at an inhabited dwelling are reversed; the other convictions are affirmed. We remand the matter for resentencing, at which time the trial court will dismiss the reversed counts.
DAVIS , J.
I concur:
HULL , J.
Twelve jurors had the benefit of observing the witnesses’ testimony, not just reading it in a cold transcript. Having considered all of the evidence, the twelve jurors unanimously agreed that defendant was guilty of conspiracy, shooting at an inhabited dwelling, and participating in a criminal street gang.
Sitting in the quiet of their appellate court chambers, far removed from the dynamics of the trial, my colleagues find fault in the jury’s findings. The fault lies, however, in the fact that my colleagues have misapplied the time-honored standard of appellate review which requires us to view the evidence in the light most favorable to the judgment and to draw every inference that reasonably can be drawn from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
Thus, I dissent.
Defendant does not dispute that he knew about the shooting at an inhabited dwelling; he simply claims that there is “no proof [he] conspired to commit, committed or aided and abetted the drive-by shooting.” In his view, “[t]he prosecution’s case rested on an attenuated string of speculative and legally impermissible circumstantial inferences which were insufficient to support the jury’s verdicts on the conspiracy and drive-by shooting charges.” The majority are persuaded by defendant’s argument. I am not.
A conspiracy, an agreement by two or more persons to commit a crime (Pen. Code, § 182), “requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to commit a public offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy.” (People v. Cook (2001) 91 Cal.App.4th 910, 918; Pen. Code, §§ 182, subd. (b), 184.)
The elements may be established through circumstantial evidence (People v. Herrera (2000) 83 Cal.App.4th 46, 64); in other words, they may “‘“be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. . . .”’” (Ibid.)
Aiding and abetting liability requires proof that the “aider and abettor act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560, italics in original.) “‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ [Citation.] [¶] . . . [¶] . . . [I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Viewed in the light most favorable to the judgment, the record discloses the following:
In the early morning hours of November 25, 2004, there was a drive-by shooting at the home of Ralph Mattos and Luis Muniz, who were active members of the Norteño gang, which is a rival of the Sureño gang. Just before the shooting, Mattos heard the sound of a bottle hitting a blue Cadillac that was parked in front of the house. After the shooting, Mattos saw a white Jeep Cherokee drive off with a person “hanging out” the front passenger window. Someone in the house called 9-1-1.
When an investigating officer arrived, he observed bullet holes in the side of the house that faced the street. Some of the holes “continued through on to the interior” of the house. Two expended bullets were found inside, one near the couch in the living room and the other near the entrance to the hallway. An expert testified that these two bullets were “consistent with .38 special or .357 magnum” bullets. Other expended bullets were “embedded” in the wall. Because there were no shell casings at the scene, an expert opined the shooting was done with a revolver. Pieces of a broken bottle were found near the Cadillac.
Mattos told the officer that two men, who appeared to be Hispanic, were in the Jeep Cherokee. At trial, Mattos testified there were three men in the vehicle.
Ten minutes after receiving the report of a drive-by shooting involving a white Jeep Cherokee, an officer spotted a vehicle that matched the description driving in an area about two to three miles from the location of the shooting. After summoning assistance, the officer stopped the white Jeep Cherokee.
Two men were in the Jeep. Moises Castillo was the driver, and defendant was in the front passenger seat. Cotton work gloves were “crumpled up” on the driver’s seat of the Jeep. Forensic testing established there was gunshot residue on one of the gloves, and particles that were “probably . . . gunshot residue” on the other glove.
On the floorboard of the passenger seat was a cap with the letters S U R over the number 13 embroidered in blue on the cap. Defendant was wearing a blue belt with the number 13 on the buckle. He also had one dot tattooed on a finger of his right hand, three dots tattooed on each of three fingers of his left hand, and the number 13 tattooed on his left leg. An expert on gangs testified that members of the “Sureño” criminal street gang wear the color blue; identify themselves by the number 13; use the term “Sur”--the Spanish word for “south”--as a shorthand for “Sureño”; and “have either a 13 tattooed somewhere” or “will do three dots on one hand and one dot on the other.”
Also found on the right rear passenger seat floorboard of the Jeep was a bandana “balled up and tied at the top.” Inside were four unfired bullets, namely, “three .38-special revolver rounds and one .357-revolver round.” Although the bullets in the Jeep were lead tipped and did not match the copper jacketed expended bullets found in the residence, they were consistent with the expended bullets found at the scene, and all were designed to be used in a revolver and could be shot from the same gun. There were no empty shell cases in the Jeep.
A glass pipe containing a usable amount of methamphetamine, and a baggie containing 2.14 grams of methamphetamine, were found on the front passenger seat floorboard, and a baggie with .33 grams of methamphetamine was found on the ground just outside the front passenger door of the Jeep, where defendant got out of the vehicle.
After initially disclaiming any knowledge of what had happened, defendant later admitted to an officer that the Jeep Cherokee had been used for the drive-by shooting at the home of Mattos and Muniz.
According to defendant, the shooting had occurred as follows:
Defendant, a Sureño gang member, went with Castillo, another gang member, to a party at which two recruits were going to be “jumped in,” i.e., initiated into the gang. The party was near the Mattos/Muniz residence. (A defense investigator testified that the locations were 1.2 miles apart.)
As his initiation into the gang, one of the recruits selected the Mattos/Muniz house for a drive-by shooting because Muniz lived near the recruit, was a member of the rival Norteño gang, and had been “messing with” the recruit. Someone gave one of the recruits a handgun, and Castillo told one recruit that he knew what he needed to do. Castillo then left in his Jeep Cherokee with that recruit and three other men--namely, a person called “Puppet”; a person called “Payaso”; the young recruit who had chosen the Mattos/Muniz residence for a drive-by shooting; and another person whom defendant did not know. The recruit may have been a 13-year-old called “Lucky,” who lived near the Mattos/Muniz residence. At another point, defendant stated that only three left in the Jeep, namely, Castillo, Puppet, and the recruit.
Puppet, whose real name was Edgar Martinez, admitted to an officer that there was an initiation to “jump” Lucky into the gang; however, Puppet claimed that it was a date prior to the drive-by shooting.
Defendant said that Castillo later returned to the party with Lucky, and then defendant left with Castillo. They were “heading home” when stopped by the police.
Asked to explain why there was gunshot residue on his hand, defendant said that when he was at the gang initiation party, he handed Lucky a gun magazine that Lucky dropped.
No evidence was introduced at trial that defendant actually had gunshot residue on his hand.
The prosecution’s criminal street gang expert testified that an initiate is “jumped in” a gang by committing a crime on behalf of the gang to show his loyalty. It is important to recruit new members because the gang needs “new blood to thrive and grow.” To this end, veteran Sureños have come from other counties to agitate young Hispanics in the Roseville area, causing an increase in gang activity. The majority of Sureño gang activity concerns maintaining respect, which is gained by attacking other gangs, such as the Norteños, and committing crimes. Gang members must continue to commit crimes to maintain their gang membership.
From this evidence, a jury reasonably could find that, although defendant claimed he did not conspire, aid and abet, or participate in the shooting, and was aware of it only because it was discussed at the party, defendant actually knew about it because he was in the Jeep Cherokee when the shooting occurred.
Indeed, defendant was in the Jeep when it was stopped only two or three miles from the location of the shooting and only about 10 minutes after the shooting occurred. And he was in the Jeep with Castillo, who, defendant admitted, was the Sureño gang member who told the shooter that the shooter knew what he needed to do, and then drove the shooter to the victims’ house. It is true the distance and passage of time would have allowed Castillo to have gone with others, dropped them off after the shooting, and returned to pick up defendant at the gang initiation party. But a contrary finding--that defendant went with Castillo to the shooting, and they dropped off the shooter and the gun after the drive-by was done--was reasonable based on the following evidence:
For starters, substantial evidence supports a conclusion that Castillo, who helped orchestrate the drive-by shooting, held a position of power in the Sureño gang of which he and defendant belonged. Even defendant referred to Castillo as a “veterano” of the gang. Defendant’s tattoos, style of dress, and admission that he had been a Sureño for three years indicated he, too, was a veteran Sureño gang member. And the fact defendant went with Castillo to the Sureño gang initiation party leads to a reasonable inference that, like Castillo, defendant held a position of power in the gang. Therefore, based on the prosecution gang expert’s testimony that veteran gang members desire to recruit new members in order to make the gang “thrive and grow,” the jury reasonably could conclude that the purpose defendant and Castillo had in going to the gang initiation party was to encourage and participate in the initiation. The expert’s testimony and the actions of Castillo and the recruit also support a finding that defendant understood the initiation would involve the new gang member attacking a rival gang member. Indeed, defendant was there when the plan was hatched to do the drive-by shooting. Defendant was there when the new member was given a handgun and when Castillo told the recruit that he knew what he needed to do. And defendant was in the drive-by vehicle shortly after the shooting took place. All this supports a reasonable inference that defendant conspired in the plan to do the drive-by shooting at the victims’ house and was present when the shooting occurred, acting at least as an aider and abettor of the shooting.
The inference also is supported by evidence that defendant initially denied knowing about the drive-by shooting, when in fact he did, which is circumstantial evidence of his consciousness of guilt. Other evidence of his consciousness of guilt was the fact that when told there was gunshot residue on his hands, he did not act surprised and deny such a possibility. Instead, he claimed it was attributable to the fact that he had handed a gun magazine to the shooter when the shooter dropped it at the gang initiation party. From this, the jury reasonably could infer defendant felt compelled to provide an innocent explanation since he believed that gunshot residue was in fact on his hands because he was near the shooter when the gun was fired or because defendant was the person who fired the gun.
At a minimum, there is substantial circumstantial evidence that defendant (an active Sureño gang member) accompanied Castillo (a veteran Sureño gang member who helped orchestrate the drive-by shooting) and the gang recruit knowing that, as an initiation into the Sureño gang, the recruit was going to shoot at the residence of rival Norteño gang members. This implies more than mere presence; it supports a reasonable inference that defendant encouraged and supported the drive-by shooting.
Accordingly, there was substantial evidence that defendant conspired, aided and abetted, and participated in the drive-by shooting at the inhabited dwelling of rival gang members (Pen. Code, §§ 182, 246) and that he did so while actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)).
The majority disagrees, stating that “the prosecutor proved at most that the defendant had accompanied a veteran member of a local gang to a gathering in Roseville, who likely left the affair with an unknown number of unknown passengers to shoot at the home of local antagonists unknown to the defendant. Later, the defendant was a passenger in the Jeep (after an unknown interval of time had elapsed) in close proximity to the apartment at which the gang had gathered, which was only two to three minutes away from the home-shooting. [¶] . . . [¶] On these facts, there might be a reasonable inference that the defendant continued to accompany the driver in the Jeep at the time of the shooting (even though it is plausible that the Jeep had time to pick him up on Elefa Street afterward). This inference, however, simply strands the reasonable trier of fact at the evidentiary dead end of mere presence with knowledge of the purpose of the driver and any other occupants of the Jeep, without any direct evidence from which to infer the defendant’s commission of any act that he intended to encourage or facilitate the shooting, or fired the shot on his own (a theory even the People abjured trying to establish), or had any sort of agreement with the others to commit this crime against people who otherwise were strangers to him.” (Original italics.)
In the passage quoted above, the majority leaves out not only the purpose of the gathering that defendant attended with a veteran Sureño gang member (Castillo), which was to conduct an initiation of new members into a subset of the Sureño gang (a ceremony that usually includes a recruit committing a crime to show bravery and loyalty to the gang), but also the fact that defendant himself was a documented member of the Sureño gang. And contrary to what the majority says, nothing about the evidence established only that it was “likely” Castillo left the party with others to shoot at the home of “local antagonists” (a fancy way of saying it was the home of members of the Norteño gang, a rival of the Sureño gang). Indeed, uncontested evidence showed that Castillo actually left with others in the Jeep Cherokee to do a drive-by shooting (i.e., when a recruit decided for his initiation into the Sureño gang he would shoot at the home of rival Norteño gang members, Castillo drove off with the recruit and others after the recruit was handed a gun and was told by Castillo that the recruit knew what he had to do). The quoted passage of the majority opinion also mischaracterizes the evidence by saying it established “at most” an “unknown number of unknown passengers” left the “affair” (we should call it what it was--a party to initiate a new gang member). Actually, some evidence identified specific persons as being among those who left with Castillo in the Jeep to do the drive-by shooting.
The majority does have it right in acknowledging the evidence established that defendant was in the Jeep Cherokee soon after the drive-by shooting occurred. And my colleagues concede, as they must, that the evidence leads to a “reasonable inference” that defendant “continued to accompany the driver in the Jeep at the time of the shooting” (although it is a begrudging concession in that they say such a reasonable inference “might” be drawn from the evidence).
And tucked into the next sentence is an apparent concession by the majority that the evidence leads to a reasonable inference that defendant was in the Jeep at the time of the drive-by shooting “with knowledge of the purpose of the driver and any other occupants of the Jeep . . . .” Not only is this inference reasonable, it was inevitable in light of the fact that defendant, in his statement to law enforcement, admitted he knew that Castillo and others in the Jeep intended to do a drive-by shooting.
In my view, the majority having conceded that the jury could reasonably find defendant was in the Jeep at the time of the shooting and knew of the intention of the others in the Jeep to shoot at the house of rival gang members, it necessarily follows the jury could reasonably find that defendant was there having been part of the conspiracy and to aid and abet the crime.
Instead, the majority take the illogical step of concluding that such an inference is unreasonable because, in the majority’s view, there was no direct evidence from which to infer defendant committed any act intended to encourage or facilitate the shooting or had any “sort of agreement” with the others to commit this crime “against people who otherwise were strangers to him.” Thus, the majority believe that the only reasonable inference which can be drawn from defendant’s presence at the time of the shooting--with knowledge the shooting was going to occur--is that defendant was nothing more than a bystander.
The majority’s analysis falters on its misperception that there was no evidence, direct or circumstantial, that defendant committed an act intended to encourage or facilitate the shooting. I find it difficult to understand how the majority could reach that conclusion.
After all, this was not a Sunday drive in the park. Defendant, a Sureño gang member, admitted that he went with Castillo, a veteran member of a subset of the Sureño criminal street gang, to a party being held to initiate new members into the gang (an expert on gangs testified veteran Sureños come from other areas to promote Sureño gang activity in the Roseville area). By defendant’s own admission, he was there when a recruit decided to do a drive-by shooting of the Mattos/Muniz home because Muniz was a rival Norteño gang member and had been “messing with” the recruit. Defendant also admitted that he saw someone give the recruit a gun and that he heard Castillo say the recruit knew what he needed to do.
It takes no leap of imagination to infer from this evidence that defendant’s presence in the Jeep when the shooting occurred (which the majority concede is a reasonable inference) reflected defendant was there due to his agreement to support and encourage the recruit to carry out the planned drive-by shooting. To infer, instead, that he was simply an innocent bystander is naive and just plain silly.
In any event, to the extent a reasonable jury could have concluded the prosecution failed to meet its burden of proving that defendant conspired to have the drive-by shooting occur, and aided and abetted its commission, this jury found otherwise. It is well settled law that a “‘judgment is not subject to reversal on appeal simply because . . . conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. [Citation.] We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. [Citation.]’ (People v. Millwee[, supra, ] 18 Cal.4th [at p.] 132; see People v. Bean (1988) 46 Cal.3d 919, 932-933.) Thus, ‘“[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ (People v. Perez (1992) 2 Cal.4th 1117, 1124.)” (People v. Massie (2006) 142 Cal.App.4th 365, 373.)
I reiterate the elements of a conspiracy may be “‘“inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. . . .”’” (People v. Herrera, supra, 83 Cal.App.4th at p. 64.) For reasons stated above, (1) defendant’s relationship with Castillo and the Sureño criminal street gang, (2) defendant’s interest in promoting Castillo’s subset of the Sureño gang, even though defendant was a member of another subset of the gang in a different city (an expert testified veteran Sureños have come from other areas to promote Sureños gang activity in Roseville), (3) defendant’s activity in going with Castillo to a Sureño gang initiation party, (4) Castillo’s activity, in defendant’s presence, of conspiring to have a recruit do the shooting and then driving off in the Jeep Cherokee with the recruit and others to commit the crime, (5) defendant’s activity of being in the Jeep Cherokee at the time of the shooting, and (6) defendant’s initial denial of knowing anything about the shooting (evidence of his consciousness of guilt) and his later effort to explain why gunshot reside was on his hands (again, evidence of his consciousness of guilt) constitute substantial evidence from which the jury could reasonably infer that defendant was guilty of the crimes charged.
In second-guessing the jury’s factual findings, the majority misapply the standard of review to reach a result they apparently would have reached if they had been members of the jury. That is not our role and, as I have explained, it is not the legal principle which guides our decision on appeal.
Far from correcting what they seem to perceive to be a miscarriage of justice, the majority create a miscarriage of justice by overturning the verdicts of twelve jurors who reasonably inferred from the evidence that defendant, a validated Sureño gang member, was part of the plan to commit a drive-by shooting at the house of rival Norteño gang members, as an initiation of a new recruit into the Sureño gang.
Because I conclude that the evidence is sufficient to support the jury’s verdicts and that defendant’s other claims of error lack merit, I would affirm the judgment.