Opinion
G052894
10-12-2017
THE PEOPLE, Plaintiff and Respondent, v. AQUILES SANCHEZ, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF1302) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Aquiles Sanchez of first degree murder (Pen. Code, § 187, subd. (a); count 1) with the special circumstances of murder committed during the commission of robbery (§ 190.2, subd. (a)(17)(A)) and murder committed to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), two counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 2, 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4).
All further statutory references are to the Penal Code.
The court found defendant committed counts 1, 2, and 3 for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), a principal in the crimes discharged a firearm (§ 12022.53, subds. (d), (e)(1)), and defendant had a prior juvenile adjudication of a felony within the meaning of the "Three Strikes" law (§ 667, subd. (d), (e)(1)).
Defendant received a life sentence without the possibility of parole for the murder, plus a consecutive 25 years to life for the gun enhancement. The court imposed a consecutive determinate term of 16 years for the remaining counts and enhancements.
Defendant challenges the adequacy of two jury instructions (CALCRIM Nos. 400, 730), the sufficiency of the evidence to prove the gang murder special circumstance (§ 190.2, subd. (a)(22)), and the accuracy of the abstract of judgment.
The Attorney General concedes the abstract of judgment does not correctly reflect the court's sentencing order in two respects, and we will make the necessary corrections. However, we conclude defendant's remaining assignments of error are meritless, and will affirm the judgment in all other respects.
FACTS
1. Background
In 2010, La Jolla was one of three main criminal street gangs in Placentia. As is true with traditional Hispanic street gangs, La Jolla claimed a certain geographic area as its turf. La Jolla's turf started in south Placentia and extended into east Anaheim. At the time, there were about 100 La Jolla gang members, and 75 of them were active participants in the gang. That year, police investigated over 350 crimes committed by suspected La Jolla gang members, and the gang's primary activities were the commission of robberies, vandalism, and felonious assaults.
2. Crimes
a. Michael Martinez Robbery
On the night of April 28, Michael Martinez (Michael) and a few of his friends were standing on a street corner in Anaheim when a black car pulled to the curb and stopped. Two young Hispanic males got out of the car. Michael described one of the men as "chunkier," and he said the chunkier man carried a silver revolver. The other male was thin and about 15 or 16 years old. The younger, slimmer man was carrying a stick, or possibly a golf club.
We refer to some of the people involved by their first names for clarity and convenience. We intend no disrespect by this practice.
The two men asked Michael and his friends if they "banged." Michael said, "No." The skinny male called out, "La Jolla," and told Michael and his friends to empty their pockets. After taking what they could, the two men got back into the black car and drove away.
Michael waited a month to report the crime, and he was a little uncertain about the date and time. However, when a police officer showed Michael a photographic lineup in connection with this case, Michael identified defendant, who is about five feet, six inches tall and 200 pounds, as the chunky gunman, and codefendant Adrian Martinez (Adrian) as the skinny guy with the golf club.
b. Javier Delgado Robbery
At around 10:00 p.m. on the night of April 28, then 50-year-old Javier Delgado, was walking along a street in Anaheim when a young Hispanic male approached him. The young man had a silver revolver. He put the revolver to Delgado's ribs and demanded his money.
Delgado grabbed the gun and struggled with the young man for a few minutes. As they struggled, a dark colored Honda drove up and stopped 10 to 12 feet away from them. A second young Hispanic man got out of the front passenger seat of the car, displayed a golf club, and demanded Delgado turn over his money. When a third young Hispanic man got out of the car, all three demanded Delgado let go of the gunman and gun. Delgado pushed the gunman into the car, and the trio fled in the dark colored Honda. Delgado could not identify any of the perpetrators.
c. Adrian Ramos Murder and Robbery
About 20 minutes after the Delgado robbery, Oswaldo Soto and four or five of his friends were standing outside Soto's Anaheim house when they heard several gunshots and the sound of a car door slam. Soto watched as a red Honda hatchback containing three young men with shaved heads sped down his street.
Moments later, Adrian Ramos staggered towards Soto and his friends and fell to the ground. Ramos died from multiple gunshot wounds to his chest, shoulder, and arms. Police later discovered that someone had taken Ramos's wallet and cell phone.
3. Investigation
The morning after Ramos's death, police officers executed a search warrant for the apartment where Adrian and his brother, Carlos Martinez (Carlos), lived. They found Ramos's cell phone in the bathroom and arrested the brothers. Defendant and Edgar Salgado were arrested later that night. The police also seized Salgado's black, four-door Acura.
Defendant made two recorded telephone calls from jail after his arrest. The calls were transcribed and entered into evidence at trial. Defendant first called a woman named Gabby. He asked Gabby to hide the "years" he had put in a glove and placed in a drawer. "Years" is slang for bullets.
After detectives heard this conversation, they returned to Adrian's house and encountered a woman named Gabby Jacobo. She handed them a black glove that contained 11 rounds of ammunition. A firearms expert compared these bullets with one bullet recovered during the autopsy. Although all the bullets were Remington .22-caliber long rifle bullets, the expert could not determine whether the unfired bullets were from the same lot or box as the bullet recovered from Ramos's body.
Defendant's second call was reportedly to his mother. However, during the second call, defendant talked to someone he called "Chuy Louie," and "fool", and he told this person, "I think somebody ratted me out. They're giving me life."
Forensic technicians collected DNA from the inside of Ramos's cell phone, the bullets found in defendant's home, and several items in Salgado's car. DNA profiles were generated and compared to the DNA profiles of defendant, Adrian, and Salgado.
Adrian could not be excluded as a major contributor to the DNA left on Ramos's cell phone, defendant could not be excluded as a major contributor to the bullets found in his home, and Salgado was a major contributor to DNA found on the inside of his car.
4. Accomplice Testimony
Adrian and Salgado negotiated plea agreements with the district attorney prior to trial. In exchange for their guilty pleas to two counts of robbery, defendant's accomplices received a sentence of 16 years and four months.
Adrian, who was 15 years old at the time of the crimes, told investigators he had been associating with the La Jolla gang for over four years. He grew up in La Jolla's turf, and his older brother associated with La Jolla. Salgado, then 20 years old, had been a La Jolla gang member for about six years.
Adrian and Salgado testified about putting in work for the gang. They said "work" meant participating in crimes and roughing up rival gang members. Salgado admitted he put in work for the gang to prove himself and show his gang allegiance. He also said gang members routinely engaged in robberies and assaults to impress other gang members and garner respect.
According to Adrian and Salgado, the evening of April 28 started with a beer party in La Jolla's turf. Defendant, Adrian, and Salgado knew each other, and they talked during the party. At one point, defendant told Adrian and Salgado he had a gun with him. Later, he showed them a .22-caliber revolver.
After a couple of hours, Adrian, Salgado, and defendant moved the party to Salgado's garage where they drank more beer. The trio then decided to cruise around Anaheim in search of people to rob. They went outside La Jolla's claimed territory because they did not want to rob people living inside the gang's territory. The trio wanted to get electronics or money with the goal of purchasing marijuana. Salgado drove his black Acura, and he had a golf club in the car.
For the first robbery of the evening, Salgado stopped his car near a group of young men, and defendant and Adrian got out of the car. Defendant had his gun and Adrian took the golf club. While Salgado waited in the car, defendant pointed his gun at the young men while Adrian took money and other items from their pockets. Afterward, Adrian and defendant returned to Salgado's car, and they drove away.
A few minutes later, Salgado pulled over and let defendant out of the car. Adrian and Salgado watched defendant follow a pedestrian around a street corner. When defendant did not quickly return, Adrian and Salgado decided to investigate. They found defendant wrestling with Delgado for the gun. Adrian grabbed the golf club and got out of the car while he and Salgado yelled at Delgado to let go of defendant and the gun. When Delgado complied, the three robbers got back into Salgado's car and fled.
The trio was still driving around Anaheim looking for potential robbery victims when they saw Ramos. As before, Salgado stopped the car, Adrian grabbed the golf club, and defendant grabbed his gun. Ramos apparently saw Adrian and defendant approaching him because he nodded his head at them in greeting. Defendant responded by pointing his gun at Ramos and demanding money while Adrian took Ramos's cell phone and wallet. Ramos said he was from "U.B.," which Adrian thought was a tagging crew.
Adrian and defendant walked back to Salgado's car. Adrian had his hand on the car door when defendant turned around and walked back toward Ramos, firing four to seven gunshots at him in rapid succession. Ramos turned and fled while defendant and Adrian got back into Salgado's car. After they left the area, Adrian and Salgado asked defendant why he shot Ramos. Defendant replied that Ramos had said something disrespectful to him.
On cross-examination, Adrian admitted he initially denied any involvement in the crimes. He also feared his brother Carlos might be identified as the shooter until he fingered defendant. Adrian wrote an apology letter to Ramos's family. He expressed remorse and said he did not want to do anything, but he had to because "they" would have done something to him.
Adrian also testified the trio committed a fourth, uncharged robbery that night. (Evid. Code, § 1101, subd. (b)). As they had done before, defendant pointed his gun at the victims while Adrian removed their possessions. However, this time Salgado got out of the car, and he hit one of the robbery victims with the golf club.
Salgado, too, initially denied any involvement in Ramos's murder out of concern for his family's safety. Later, he decided to negotiate a plea agreement because he had a wife and a 10-month-old child.
5. Gang Evidence
Anaheim Police Department Sergeant Daron Wyatt testified as the prosecution's gang expert as he had done on prior occasions in both state and federal court proceedings. Wyatt began his 13-year career with the Placentia Police Department in 1995. Between 1997 and 1999, he handled the "gang caseload in Placentia," and between 2004 and 2008, he was the sergeant in charge of a special enforcement unit that supervises gang-related investigations. Wyatt had contact with La Jolla gang members throughout his career with the Placentia Police Department.
In 2008, Wyatt went to work for the Anaheim Police Department where he continued to have contact with La Jolla gang members because the gang's sphere of influence extended into parts of Anaheim.
During his career, Wyatt has spoken to over 3,000 gang members, both in the field and in custody, and many of these people have been La Jolla gang members. He has also been involved in over 300 gang-related criminal investigations, and a good portion of these crimes were committed by members of La Jolla. Wyatt had also authored about 150 search warrant affidavits involving gangs, and approximately 50 of those warrant affidavits were for the homes of La Jolla gang members.
Based on Wyatt's contact with gang members and the victims of gang crimes, he learned gang philosophy, culture, and expectations, the mechanics of gang membership, and the significance of tattoos, graffiti, and guns. Wyatt explained La Jolla gang members use the letters "LJ" to represent La Jolla, either "VLJR" or "BLJR" for varrio, or barrio, La Jolla rifa, and the words, "Mad Ones," in their graffiti and tattoos.
Wyatt said defendant admitted to law enforcement he was an active participant in La Jolla in 2007, and he has the words, "Mi Vida Loca" and "Mad," tattooed on his right hand, and the word, "La Jolla," tattooed on his right arm. Wyatt also knew defendant's gang moniker, "Gizmo." Adrian and Salgado also had gang monikers, "Mighty" and "Grinch," respectively. Plus, said police officers found a belt buckle bearing the number 13 in defendant's home. The number 13 is associated with southern California gangs.
Wyatt explained the driving force behind gang life is the gang culture's notions of respect. Wyatt described respect in the gang culture as "a vicious cycle" of tit-for-tat "that starts off with a single act of disrespect, such as looking at somebody the wrong way." He said disputes over respect provide gang members with a ready excuse for violence.
In addition, gang members commit crimes to earn respect, and they tend to violently retaliate for any perceived act of disrespect. Younger gang members garner respect by committing violent crimes, which is also known as "putting in work" for the gang. One way to ensure gang members get credit for committing crimes is to shout the gang's name during the crime, and gang members often commit crimes in concert so they will have witnesses to verify their activity.
Guns are also very important in gang culture, and gang members use guns to broker power, intimidate others, and exert influence. Gang members often share guns, and younger gang members sometimes commit more serious crimes to gain respect. Gang members must also "back up" each other, which means gang members have a duty to assist fellow gang members during assaults. Having back up provides gang members with "support, reserves, [and] intimidation," and the simple failure to back up a fellow gang member will also cause a violent reprisal. Plus, the commission of violent crimes bolsters the reputation of the gang, and the individual gang members, which furthers the criminal activities of the gang.
Wyatt testified La Jolla was the most prosecuted criminal street gang in Orange County in 2005, and he testified about two predicate offenses involving La Jolla gang members. In 2006, La Jolla gang member Jorge Urdiano pled guilty to a gang-related assault with a deadly weapon. In 2008, a jury convicted active La Jolla gang member Jose Suarez of a first degree murder committed with a gun and for the benefit of La Jolla.
In Wyatt's expert opinion, defendant, Adrian, and Salgado were active participants in La Jolla in 2010. He based his opinion on his personal experience, and the facts of the instant crimes. In addition, defendant told Adrian and Salgado he shot Ramos in retaliation for being disrespected, which Wyatt said often triggers retaliation. When asked hypothetical questions based on the facts of the crimes, Wyatt opined the three active participants in La Jolla committed the robberies and murder for the benefit of, in association with, or at the direction of La Jolla, and with the specific intent to promote, further, or assist criminal conduct by La Jolla gang members. As for the murder, Wyatt testified the "whole concept of respect, disrespect, and retaliation in the [gang] subculture requires [the shooter] to take action if he feels that he was disrespected, particularly in front of fellow gang members."
6. Arguments of Counsel
The prosecutor and defense counsel focused their arguments on the murder charge, and neither attorney even mentioned the other three charges.
The prosecutor argued defendant was a "cold-blooded killer" who almost got away with murder, and he presented the jury with the option to convict defendant of first degree murder under a premeditation theory, or first degree murder under a felony murder theory based on defendant's commission of a murder during a robbery.
Defense counsel argued defendant had not participated in any of the charged crimes. She challenged the reliability of the accomplices' testimony. According to defense counsel, Adrian and Salgado had personal motivations for framing her client for the murder. She said Adrian most likely implicated defendant in an effort to divert suspicion away from his brother, Carlos, and Salgado made a deal to escape a murder conviction because he had a wife and young child. Plus, defense counsel asserted there was no independent evidence of her client's identity as the gunman.
On rebuttal, the prosecutor pointed to robbery victim Michael's testimony as independent evidence of defendant's identity, and the fact defendant had possession of bullets that matched the type of bullet retrieved from Ramos's body. Furthermore, the prosecutor asserted defendant's recorded jail calls demonstrated a consciousness of guilt.
DISCUSSION
1. Instructional Error, General Principles and the Standard of Review
Defendant challenges the adequacy of the court's instructions on aiding and abetting as applied to the Ramos robbery and murder, and the instruction on the felony murder special circumstance.
Defendant forfeited any challenge to these instructions by failing to object at trial. Nevertheless, we address the merits because "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; § 1259 [ an appellate court may "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].) --------
In a criminal case, the court must give correct instructions on the charged crimes, enhancements, and special circumstance allegations, and other instructions that are responsive to the evidence and relevant to the basic principles of the law necessary to the jury's understanding of the case. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) We independently determine whether the instructions correctly state the law. (People v. Camino (2010) 188 Cal.App.4th 1359, 1380; People v. Bell (2009) 179 Cal.App.4th 428, 435.)
a. Aiding and Abetting - CALCRIM No. 400
The standard CALCRIM No. 400 instruction states, "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
After hearing closing arguments but before instructing the jury, the court modified the standard CALCRIM No. 400 instruction by adding the following sentences: "In this case, aiding and abetting may be used only to prove that the defendant is guilty of the crimes charged in counts 3 [and] 4. The defendant may not be found guilty of the crimes charged in counts 1 and 2 based on aiding and abetting." (Italics added.)
Defendant asserts the court's modification of CALCRIM No. 400 improperly vouched for his accomplices' testimony and deprived him of the constitutional right to a fair trial on counts 1 and 2.
We reject the notion the court's modification improperly vouched for the accomplices testimony, but we agree the court erred by not allowing the jury to apply the principles of aiding and abetting to count 2.
b. Improper Vouching
Defendant argues the court's modification of CACRIM No. 400 was "partisan and impermissibly lightened the prosecution's burden of proof" by endorsing the testimony of his accomplices. He claims the court's error is analogous to the error in People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson). We disagree.
In Johnson, two codefendants were tried jointly in front of the same jury, and both of them testified in their own defense and each blamed the other. (Johnson, supra, 243 Cal.App.4th at p. 1251.) The court instructed the jury each defendant was an accomplice as a matter of law if they found a crime had been committed. The appellate court found error because both codefendants claimed to be innocent. Under the circumstances, applying the accomplice as a matter of law instruction could only have the effect of imputing guilt to the confessing codefendant. (Id. at p. 1270.) The court also noted the instruction as applied to codefendants who both take the stand directly undermines each defendant's constitutional right to testify in his or her own defense. (Id. at p. 1271.)
Here, defendant did not testify. In addition, defendant's argument ignores the fact the court gave a separate instruction on accomplice testimony (CALCRIM No. 335). This instruction told the jury Adrian and Salgado were defendant's accomplices as a matter of law, and explained the requirement their testimony be corroborated by independent evidence to be considered reliable. The court read CALCRIM No. 335 immediately before Adrian testified and after closing arguments.
In light of the court's correct instructions on accomplice testimony, we conclude there is no reasonable likelihood the jurors misinterpreted the court's modification of CALCRIM No. 400 to somehow endorse his accomplices testimony. (People v. Houston (2012) 54 Cal.4th 1186, 1229 [considering the instructions as a whole and the evidence adduced at trial, we "determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner"]; People v. Acosta (2014) 226 Cal.App.4th 108, 119 [same].)
c. Improper Limitation of Aider and Abettor Liability
Defendant next argues the prosecution relied on the principles of aider and abettor liability with respect to counts 1 and 2 (in addition to counts 3 & 4), and the court's error put the jury in an all-or-nothing situation with respect to the murder and gang murder special circumstance. We disagree.
With respect to count 1, the prosecutor argued defendant personally fired the fatal shots, and there was no contrary evidence adduced at trial. Defendant argues his accomplices lied, but the ballistics evidence, robbery victim Michael's testimony, and defendant's jail calls also tied him to the gun and the murder. Because there was no evidence anyone else fired the fatal bullets, the facts simply do not support giving aiding and abetting instructions in connection with the murder, or the gang murder special circumstance.
On the other hand, the prosecutor's argument completely omitted counts 2, 3, or 4. Count 2 charged defendant with Ramos's robbery. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.)
Here, defendant held the gun on Ramos while Adrian removed his property. Defendant did not personally take Ramos's property. Defendant argues this division of labor means he necessarily acted as an aider and abettor. However, the court in People v. Delgado (2013) 56 Cal.4th 480, (Delgado) stated, "It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." (Id. at p. 487.)
The Delgado court recognized that in cases where two defendants jointly participate in a crime, the aider and abettor doctrine "obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Delgado, supra, 56 Cal.4th at p. 487, citing People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Adrian took Ramos's property while defendant used force or fear to hold Ramos against his will. In this case, Adrian and defendant were both direct perpetrators and aiders and abettors of the Ramos robbery.
In this case, as in Delgado, the evidence in the record supports the jury's finding defendant acted as a direct perpetrator in the Ramos robbery. In short, assuming the jury had been instructed on aiding and abetting, it would have merely provided another avenue for defendant's conviction. (Delgado, supra, 56 Cal.4th at p. 492.)
In light of the facts adduced at trial, we are convinced any error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 17 [no basis for reversal of the judgment when the error had no impact on the verdict], citing Chapman v. California (1967) 386 U.S. 18, 24.)
d. Felony Murder Special Circumstance - CALCRIM No. 730
The court instructed the jury with the current version of the standard CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony) instruction. Defendant argues the court's instruction "completely omitted the element of the felony-murder special circumstance that the murder must occur during the robbery and not be an independent act after completion of the robbery."
Defendant acknowledges the court gave another instruction that covered the relevant concepts. (CALCRIM No. 540A [Felony murder: First Degree-Defendant Allegedly Committed Fatal Act].) However, defendant asserts the failure to duplicate the language in CALCRIM No. 540A in the current version of CALCRIM No. 730 constitutes a "serious instructional omission" because the jury could have found he and his accomplices completed the robbery before the murder. We disagree.
As the prosecutor emphasized, "all that's required for felony murder is that the act which causes death, the shooting, occurs during the commission of a robbery. And the law, of course, explains in legal terms, what does that mean. How long the robbery lasts. It continues. Not just up to the moment that someone grabs the cell phone and rummages through the pockets. It continues up until the point where the robbers reach a place of temporary safety."
Here, the undisputed evidence showed the robbers had not even left the scene of the robbery before the murder. Adrian and defendant barely made it back to Salgado's car before defendant turned around and shot Ramos for making some disrespectful comment. On these facts, no rational jury would have concluded the robbers had reached a place of temporary safety before defendant shot Ramos. (See People v. Gomez (2008) 43 Cal.4th 249, 255 [a theft continues "until the perpetrator has reached a place of temporary safety with the property"].)
Moreover, an appellate court does not review instructions in isolation. (People v. Haskett (1990) 52 Cal.3d 210, 235 [single instruction must not be viewed in isolation but in the context of the whole charge].) As noted, CACLRIM No. 540A explained the relevant concepts to the jury. Plus, the first sentence of the current version of CALRIM No. 730 requires the jury to find, "The defendant is charged with the special circumstance of murder committed while engaged in the commission of robbery," and the final paragraph of the instruction specifically required the jury to find "defendant intended to commit a robbery independent of the killing."
Defendant argues the jurors would not have known how to correlate all the pertinent instructions, but we must presume otherwise. (People v. Spaccia (2017) 12 Cal.App.5th 1278, 1287 [we view instructions as a whole and presume jurors are capable of understanding and correlating all given instructions]; People v. Yoder (1979) 100 Cal.App.3d 333, 338) When considered together, the court's instructions adequately explained the elements of the felony murder special circumstance.
Defendant's reliance on People v. Sakarias (2000) 22 Cal.4th 596, 624-625 (Sakarias) and People v. Wilkins (2013) 56 Cal.4th 333, 344-345 (Wilkins) is misplaced. Both cases are factually distinguishable.
In Sakarias, the court responded to a jury question by erroneously telling the jury that if it found the defendant entered the burglary victim's house with the intent to steal, the subsequent killing and the burglary were part of one continuous transaction. In this regard, the court's response interfered with the jury's fact-finding function. (Sakarias, supra, 22 Cal.4th at p. 624.) Here, the court did not similarly interfere with the jury's fact-finding process.
In Wilkins, the court refused the defendant's request to give an instruction on the escape rule (CALCRIM No. 3261), which applies when the killing occurs during the perpetrator's flight from the underlying felony. (Wilkins, supra, 56 Cal.4th at p. 345.) Defendant and his accomplices had not yet left the scene of the robbery when defendant committed murder. The escape rule did not apply in this case.
2. Sufficiency of the Evidence to Support the Gang-Murder Special Circumstance
Defendant challenges the sufficiency of the evidence to support the gang murder special circumstance under section 190.2, subdivision (a)(22), which mandates a sentence of death or life without the possibility of parole if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." (Italics added.)
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. [Citations.]'" (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
An appellate court does "not resolve credibility issues or evidentiary conflicts. Instead, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.' [Citations.]" (People v. Solis (2013) 217 Cal.App.4th 51, 56-57.)
Defendant first asserts the intent requirement of section 190.2, subdivision (a)(22) is "more precise and narrower than the mental state elements" in the gang enhancement statute (§ 186.22, subd. (b)(1)). However, no published case has come to that conclusion. To the contrary, in People v. Carr (2010) 190 Cal.App.4th 475, the court stated the language in section 190.2, subdivision (a)(22) "substantially parallels the language of section 186.22, subdivision (b)(1), which authorizes a sentencing enhancement for felonies '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 . . . .'" (Carr, at p. 488.)
Defendant also asserts Wyatt's expert opinion was based on pure speculation, and there was no evidence defendant bragged about the murder. He also relies on the fact the crimes were committed outside of La Jolla's claimed turf, and no one yelled, "La Jolla," showed gang signs, or wore other indicia of gang identity when Ramos was shot.
However, if the facts reasonably justify the jury's factual findings, the fact those circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 12.) Here, three La Jolla gang members committed a series of robberies. Adrian and Salgado testified they were required to "put in work" for the gang by committing crimes and assaulting rival gang members. Salgado even admitted the instant crime spree would serve to enhance their reputations in the gang. Adrian said he heard Ramos say the name of a tagging crew, and defendant explained the murder as retaliation for an act of disrespect.
In addition, Wyatt's testimony focused on the role of respect and retaliation for acts of disrespect, reputation and the use of violent crimes to enhance reputation, and loyalty and backing up your fellow gang member. His testimony was not vague, generic, or speculative. For the most part, Wyatt's expert opinions were based on his personal experience with La Jolla.
This evidence is sufficient to support the jury's determination defendant murdered Ramos in retaliation for an act of gang-related disrespect, and with the intent to elevate the reputation of La Jolla and himself in comparison to other gangs and gang members. Thus, substantial evidence supports the jury's finding defendant committed murder and robbery with the specific intent to further La Jolla's criminal activities.
3. Corrections to the Abstract of Judgment
Defendant contends and the Attorney General concedes the abstract of judgment does not properly reflect the court's order for victim restitution, or the court's award of 2,044 actual days of presentence custody credit. We agree. Thus, the abstract of judgment must be corrected.
DISPOSITION
The abstract of judgment is corrected to reflect the court's order defendant, Adrian, and Salgado are joint and severally liable for victim restitution, and the court's award of 2,044 actual days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.