People v. Lazo CA2/1 ( 2021 )

Filed 10/4/21 P. v. Lazo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144673-01)
v.
ALEJANDRO LAZO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Roger Ito, Judge. Affirmed in part and
reversed in part.
Janet Uson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohn,
Deputy Attorneys General for Plaintiff and Respondent.
_________________________________________
On April 29, 2017, Southside Whittier gang members
Alejandro Lazo and Reyna Gomez carjacked a Nissan Pathfinder
and used the vehicle in a drive-by shooting spree that left one
person dead and several others injured. Lazo and Gomez were
charged with one count of carjacking, one count of murder, and
14 counts of attempted murder. They were tried separately.1
A jury convicted Lazo of one count of first degree murder
(count 1; Pen. Code, § 187, subd. (a))2, 12 counts of willful,
deliberate, and premeditated attempted murder (counts 2, 3,
6−11, 13−15, & 17; §§ 187, subd. (a), 664), and one count of
carjacking (count 12; § 215, subd. (a)).3 As to each count,
the jury found true gang allegations under section 186.22,
subdivision (b)(4), and firearm enhancement allegations
under one or more of subdivisions (b), (c), (d), and (e)(1) of
section 12022.53. The court sentenced Lazo to prison for 53 years
plus 320 years to life, and imposed certain fines and assessments.
Lazo contends that the evidence was insufficient to support
three of the convictions of attempted murder (counts 2, 8, and 14)
and, in connection with those convictions, the court erred in
giving kill zone instructions to the jury and the prosecutor
1 In March 2020, we affirmed Gomez’s convictions of
one count of murder, 10 counts of attempted murder, and one
count of carjacking in an unpublished opinion. (People v. Gomez
(Mar. 4, 2020, B293727).) We reversed convictions on four
counts of attempted murder and related enhancements based on
instructional error. (Ibid.)
2Subsequent unspecified statutory references are to the
Penal Code.
3
The jury acquitted Lazo of two charges of attempted
murder.
2
made improper comments to the jury regarding the kill zone
theory. We agree with Lazo that the evidence was insufficient
to support the challenged convictions and therefore reverse
those convictions. Consequently, we do not reach the related
instructional and prosecutorial misconduct issues.
Lazo also contends that gang enhancements must be
reversed because (1) the gang expert’s testimony regarding
predicate offenses was based on hearsay concerning case-specific
facts and was therefore inadmissible; and (2) the evidence was
insufficient to establish that the crimes were committed for the
benefit of or in association with a criminal street gang. In light of
our Supreme Court’s recent decision in People v. Valencia (2021)
11 Cal.5th 818, 826 (Valencia), we agree with the first contention,
but hold that the error was harmless with respect to all gang
enhancements except the enhancement associated with the
carjacking count. We reject the second contention.
Lazo further argues that the prosecutor committed
prejudicial misconduct and deprived him of a fair trial because
exhibits in evidence improperly included information about
a prior conviction and Lazo’s parole status, and the prosecutor
made improper statements during his argument to the jury. He
also argues that the prosecutor committed misconduct in various
ways during a re-argument of the murder charge to the jury. In
addition to finding that these contentions have been forfeited by
failing to raise them below, we reject them on the merits, as well
as the related ineffective assistance of counsel contentions.
3
FACTUAL SUMMARY
The events described below took place on April 29, 2017.
A. Carjacking of Johnny G.’s Pathfinder
(Count 12)
At about 2:15 p.m., Johnny G. was in the driver’s seat
of his parked green Nissan Pathfinder sports utility vehicle
(SUV) when a white four-door sedan pulled up behind him.
Lazo and Gomez got out of passenger seats of the white car and
approached the Pathfinder. Lazo walked to the driver’s side of
the Pathfinder and Gomez to the passenger side. Lazo pointed a
gun at Johnny G., and told him to get out of the car. Johnny G.
complied because he was afraid Lazo would shoot him. After
Johnny G. walked to the back of the Pathfinder, Lazo got in the
driver’s seat and Gomez got into the passenger seat. Lazo then
drove away.
As Johnny G. began to walk away, two men got out of
the white car, approached Johnny G. and asked, “Where are
you from?” Johnny G. said, “I don’t bang.” The two men said
something like, “this is South Side,” then returned to their car
and followed the Pathfinder.4
4 During trial, Johnny G. testified that Lazo looked
“similar” to the man who had pointed the gun at him, but he
was “not a hundred percent sure” it was him. Some witnesses
to other charged crimes positively identified defendant during
trial as a principal and other witnesses either could not
identify defendant or expressed some uncertainty about their
identification. On appeal, however, defendant does not challenge
the sufficiency of the evidence supporting the jury’s finding
that he was a principal in each of the crimes of which he was
4
B. Attempted Murder of Tommy A. (Count 15)
At about 3:30 p.m., Tommy A. was in an alley behind a
coffee shop. A green Pathfinder pulled up next to him. Lazo,
the driver of the Pathfinder, handed a gun to Gomez and told
her, “shoot him.” Gomez aimed the gun at Tommy A.’s face, then
lowered the gun and fired one shot, hitting Tommy A. in his groin
area. Gomez then raised the gun, aimed it at Tommy A.’s head,
and pulled the trigger. The gun, however, “jammed.” As Lazo
attempted to clear the jam, the car began to roll away. Tommy A.
then ran to the coffee shop to ask for help.
C. Attempted Murder of Michael L. (Count 17)
At about 3:41 p.m., Rosemary A. and her husband
Roy A. were in their car, waiting for the light to change at the
intersection of Colima and Lambert in Los Angeles County.
Rosemary A. was driving. A car, which Roy A. described as a
dark green or black SUV was in front of them. A black Honda
was in the next lane, adjacent to the driver’s side of the SUV
in front of them. Rosemary A. could see one person inside the
Honda, who was later identified as Michael L. Rosemary A. saw
an arm holding a gun extended from the driver’s side of the SUV
in front of her and point it at the Honda. She then heard one
shot and saw the front passenger window of the Honda shatter.
The SUV turned right and “took off.” Rosemary A. began to
convicted and the sufficiency of evidence supporting that finding
is apparent from the record and we may reasonably infer from
the evidence, viewed in a light favorably to the judgment, that
the male participant in each of the crimes is Lazo and the female
participant is Gomez. Our factual summary reflects these
inferences.
5
follow the SUV and told Roy A. to get the vehicle’s license
number. Rosemary A. then turned back to check on the person in
the Honda. Michael L. had been injured by broken glass from the
shattered window. A surveillance video recording of the incident
was shown to the jury.5
D. Attempted Murders of Benjamin G. and
Maria G. (Counts 13 and 14)
At about 4:00 p.m., Benjamin G. was driving his Ford
Excursion on Imperial Highway. His wife Maria G. was in the
passenger seat. They stopped at the intersection at La Mirada
Boulevard. A green Pathfinder pulled up next to them on their
driver’s side. Lazo was driving the Pathfinder and Gomez was in
the front passenger seat. The light changed to green and, as the
two cars proceeded through the intersection, Benjamin G. heard
two loud knocks against his car. Benjamin G. looked at the
adjacent Pathfinder and saw Lazo “pointing a gun sideways.”
Then Benjamin G.’s window shattered and a bullet hit his arm
and ribs. The Pathfinder sped away. In addition to the shattered
window, two holes were found in the driver’s door of Benjamin
G.’s car.
E. Attempted Murder of Anthony E. (Count 11)
At about 4:00 p.m., Anthony E. was driving his car
westbound on Imperial Highway between Santa Gertrudes
Avenue and Ocaso Avenue. He heard a noise and a rear side
window in his car shattered. He then noticed a dark green
SUV driving away from him eastbound on Imperial Highway.
5 The parties did not arrange for transmission of the video
surveillance evidence to this court.
6
He later discovered a hole in the driver’s side back seat of his car
and a fragment of a bullet inside the hole.
F. The Shootings at the Intersection of Santa
Gertrudes Avenue and Alicante Road
At about 4:00 p.m., Lazo and Gomez were involved in a
series of shootings at the intersection of Santa Gertrudes Avenue
and Alicante Road.
1. Murder of Jose Sahagun (count 1) and
attempted murder of Jesus A. (count 2),
Jose Sahagun was driving a white SUV southbound
on Santa Gertrudes Avenue and pulled up to the intersection
at Alicante Road, where he waited for the light to change.
Sahagun’s father-in-law, Jesus A., was in the front passenger
seat. Sahagun’s wife and three other family members were in
rear seats of the SUV. Lazo drove the Pathfinder up alongside
the driver’s side of Sahagun’s white SUV. Gomez got out of
the passenger side of the Pathfinder, approached the driver’s
side of Sahagun’s SUV, and fired at least one shot, and possibly
as many as three shots, at Sahagun from less than one foot
away. Sahagun died as a result of gunshot wounds. There
was no evidence that anyone else in the car, including Jesus A.,
was injured or that any bullets hit or entered the cabin of the
Sahagun’s SUV other than the bullet or bullets that hit Sahagun.
2. Attempted murders of Lisa R. (count 3),
Julio R. (count 6), Leslie G. (count 7),
Robert G. (count 8), Leticia A. (count 9),
and William K. (count 10)
Across the intersection from where Gomez shot Sahagun,
several northbound cars were stopped at the red light. Lisa R.
7
and her 10-year-old daughter were in the lead car in the left-turn
lane. Lisa R. saw Gomez shoot at the window of Sahagun’s
SUV. After Gomez returned to the Pathfinder, the Pathfinder
proceeded slowly through the intersection. When it was nearly
adjacent to Lisa R.’s car, Lazo pointed a semiautomatic handgun
at Lisa R. and fired one shot at her. The bullet shattered her
driver’s side window and the rear passenger window. Lisa R.
received a small cut under her eye as a result. Her daughter
was not injured.
Jorge N. was heading northbound on Santa Gertrudes
Avenue in the number two lane and stopped at the intersection
with Alicante. Jorge N. heard several gunshots, but did not
know where they came from. He noticed a commotion, then
saw the green Pathfinder driving southbound slowly through
the intersection. He saw Lazo holding a gun outside the window
and shooting at cars in the northbound lanes. To Jorge N., it
appeared that the driver was taking aim at cars and shooting
directly at them. At one point, the shooter pointed the gun at
Jorge N. and he “had no choice but to just get out of the way.”
He then heard “the last shot.” Jorge N. was not injured and his
car was not hit.
Julio R. was in his GMC Sierra and waiting in a
northbound lane for the light to change. He heard a gunshot and
noticed a commotion and someone running on the other side of
the intersection. He heard a second shot and saw the driver’s
side window of Sahagun’s SUV shatter. The green Pathfinder
then moved southbound across the intersection as an arm holding
a gun extended from the driver’s window of the Pathfinder. As
the Pathfinder reached the south side of the intersection, Lazo
fired shots at each of the three cars in front of him. When the
8
Pathfinder reached a point adjacent to Julio R.’s vehicle, Julio R.
saw Lazo point the gun at him and pull the trigger twice, but
it did not fire. As the car passed him, Julio R. heard more
gunshots.
Leticia A. was behind two other cars in the northbound-
facing left-turn lane on Santa Gertrudes Avenue. She saw
Gomez shoot at Sahagun’s SUV. After Lazo drove through the
intersection and shot at the cars in front of him, he pulled up
adjacent to Leticia A. and fired a gun at her as she ducked.
Leslie G. and her husband Robert G. were in a car facing
northbound at the Santa Gertrudes Avenue / Alicante Road
intersection. They were in the “number [one] lane,” about
three cars away from the limit line. Leslie G. was driving and
Robert G. was in the front passenger seat. Their two-year-old
son was in the backseat. Leslie G. heard three gunshots and saw
the green Pathfinder cross the intersection and pull up to a point
“parallel” to her car and stop. Although she was in the lane to
the right of the left-turn lane, no car was next to her in the left
turn lane. Lazo raised a gun and pointed it in her direction;
Leslie G. told Robert G. to duck. Lazo fired two or three shots at
their car. A bullet hole and a bullet fragment were found in the
driver’s side mirror of Leslie G.’s car.
William K. was at the Santa Gertrudes Avenue / Alicante
Road intersection heading northbound. He heard three shots,
and saw the Pathfinder drive southbound across the intersection.
The Pathfinder stopped, and Lazo pointed a gun at William K.,
fired, and hit William K.’s windshield.
G. The Aftermath
At 7:00 p.m., Los Angeles County Sheriff ’s Deputies located
Johnny G.’s Pathfinder near Mayberry Park in Whittier. On the
9
ground about 6 to 10 feet away from the driver’s side door, they
found a “live round” of “ammo.” A subsequent search of the
Pathfinder revealed a live .22 caliber cartridge, fired cartridge
casings, and a box of .22 caliber ammunition.
Between 7:30 p.m. and 8:00 p.m., a black Chrysler and a
white Kia sedan were in the parking lot of a motel in Santa Fe
Springs. According to a motel guest, a male passenger got out of
the Chrysler, said, “Hey, homey,” and fired eight or nine gunshots
at the white Kia. The shooter returned to the Chrysler, which
drove away. The white Kia then drove out of the motel parking
lot.
At about 8:00 p.m., Gomez, driving the white Kia sedan,
pulled up alongside Joyce F. on Carmenita Road and honked
her horn repeatedly. Gomez rolled down her window and told
Joyce F. that she had been shot and asked for help. Lazo was in
the passenger seat of the Kia and had also been shot. Joyce F.
noticed that the passenger side of the car and rear windshield
had “a lot” of bullet holes.
An ambulance and police officers arrived. Police found a
.22 caliber handgun between Lazo’s waistband and the seatbelt
clip. As Lazo was being placed on a gurney, .22 caliber
ammunition fell from his pants pocket onto the ground.
DNA recovered from a beer can in the Pathfinder was
consistent with Lazo’s and Gomez’s DNA. DNA found on the
Pathfinder’s steering wheel was consistent with Lazo’s DNA.
Gunshot residue was found on Lazo and Gomez. Ballistics
evidence connected the .22 caliber gun found next to Lazo
with the cartridge cases found in the Pathfinder and the bullet
recovered from Sahagun’s body.
10
H. Gang Evidence
Los Angeles County Sheriff ’s Deputy Claudia Maldonado
testified that Lazo has “SSW”—an acronym for Southside
Whittier—tattooed on his arm and head. The deputy
encountered Lazo at Mayberry Park on April 4 and April 9, 2017,
and each time Lazo “self-admitted” at that time to being a gang
member. On the second occasion, Lazo was with Gomez, who also
admitted being “from Southside Whittier.” Maldonado prepared
field identification—or F.I.—cards for each interaction, which
noted their gang affiliation, tattoos, and gang monikers.
Deputy Fernando Sarti testified as a gang expert. Sarti
testified that the primary activities of the Southside Whittier
gang are vandalism, petty thefts, robberies, sales of narcotics,
carjacking, possession of handguns, shootings, and murders.
The gang’s “territory” includes Mayberry Park, where Southside
Whittier gang members congregate.
Deputy Sarti testified about two “predicate” crimes
purportedly committed by Southside Whittier gang members.
The crime in each case was being a felon in possession of a
firearm. One of the crimes is evidenced by a court minute order
reflecting a conviction of Jose Antonio Garcia on March 18, 2016.
The other crime is shown by a court minute order reflecting a
conviction of Richard Arredondo on October 23, 2015. Deputy
Sarti’s testimony that Garcia and Arredondo were members of
the Southside Whittier gang was based on the deputy’s review
of field identification cards and “arrest cards” concerning the
individuals, tattoos on Garcia “depicting his gang affiliation,”
and booking photographs of Arredondo “where he depicts his
gang affiliation.”
11
Deputy Sarti further testified that Lazo and Gomez
are active members of the Southside Whittier gang. He based
this opinion on photographs of tattoos on Lazo and Gomez
reflecting membership in the Southside Whittier gang and field
identification cards prepared by others.
Over defense objection, the prosecutor gave Deputy Sarti
a hypothetical that mirrored the facts shown by evidence in this
case. Deputy Sarti stated his opinion that the crimes described
in the hypothetical were committed for the benefit of, and in
association with, a criminal street gang. The activity benefitted
a gang, he explained, because the firing of a weapon “enhances
the reputation of the gang within the gang world as well as
within the community.” The crimes are committed in association
with a gang because “there’s two individuals from the same gang
working together to commit these crimes.”
I. Defense
The defense did not present any witnesses or affirmative
evidence.
DISCUSSION
A. Sufficiency of the Evidence of Attempted
Murder on Counts 2, 8 and 14
The convictions on counts 2, 8, and 14 were for the
attempted murders of Jesus A., Robert G., and Maria G.,
respectively. These alleged victims were in the front passenger
seats of the cars driven by Sahagun, Leslie G., and Benjamin G.,
respectively. The prosecution relied on a kill zone theory of
criminal liability as to these crimes and the court instructed
12
the jury on that theory.6 Lazo contends that the evidence is
insufficient to support the convictions on these counts under
a kill zone theory.7 We agree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended
killing.’ [Citation.] When a single act is charged as an attempt
6 As to count 2, the court instructed the jury as follows:
“A person may intend to kill a specific victim or victims and at
the same time intend to kill everyone in a particular zone of harm
or ‘kill zone.’ In order to convict the defendant of the attempted
murder of Jesus [A.] in count 2, the People must prove that the
defendant not only intended to kill Jose Sahagun, but also either
intended to kill Jesus [A.], or everyone within the kill zone. If
you have a reasonable doubt whether the defendant intended
to kill Jose Sahagun or intended to kill Jesus [A.] by killing
everyone in the kill zone then you must find the defendant not
guilty of the attempted murder of Jesus [A.]” The court gave the
same instruction on counts 8 and 14, substituting the names of
Robert G. and Maria G., respectively for the name of the alleged
victim.
7 The Attorney General contends that the evidence is
sufficient to support the convictions under the kill zone theory
and does not argue that the convictions can be affirmed under
any other theory.
13
on the lives of two or more persons, the intent to kill element
must be examined independently as to each alleged attempted
murder victim; an intent to kill cannot be ‘transferred’ from
one attempted murder victim to another under the transferred
intent doctrine.” (People v. Canizales (2019) 7 Cal.5th 591, 602
(Canizales).)
Although the doctrine of transferred intent does not
apply to the crime of attempted murder, our Supreme Court
has “embraced the concept of a concurrent intent to kill
as a permissible theory for establishing the specific intent
requirement of attempted murder.” (Canizales, supra, 7 Cal.5th
at p. 602.) This concept was applied in People v. Bland (2002)
28 Cal.4th 313, where the court approved of a “kill zone” theory
of attempted murder, which applies “ ‘when the nature and scope
of the attack, while directed at a primary victim, are such that
we can conclude the perpetrator intended to ensure harm to the
primary victim by harming everyone in that victim’s vicinity.’ ”
(Id. at p. 329.) The Attorney General in this instant case relies
on the kill zone theory to support the convictions on counts 2, 8,
and 14.
In Canizales, the Supreme Court clarified that “the kill
zone theory for establishing the specific intent to kill required
for conviction of attempted murder may properly be applied only
when a jury concludes: (1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force
the defendant used, are such that the only reasonable inference
is that the defendant intended to create a zone of fatal harm—
that is, an area in which the defendant intended to kill everyone
present to ensure the primary target’s death—around the
primary target[;] and (2) the alleged attempted murder victim
14
who was not the primary target was located within that zone of
harm. Taken together, such evidence will support a finding that
the defendant harbored the requisite specific intent to kill both
the primary target and everyone within the zone of fatal harm.”
(Canizales, supra, 7 Cal.5th at p. 607.)
The Canizales court further stated: “In determining the
defendant’s intent to create a zone of fatal harm and the scope
of any such zone, the jury should consider the circumstances
of the offense, such as the type of weapon used, the number
of shots fired (where a firearm is used), the distance between
the defendant and the alleged victims, and the proximity of the
alleged victims to the primary target. Evidence that a defendant
who intends to kill a primary target acted with only conscious
disregard of the risk of serious injury or death for those around
a primary target does not satisfy the kill zone theory. . . . [T]he
kill zone theory does not apply where ‘the defendant merely
subjected persons near the primary target to lethal risk. Rather,
in a kill zone case, the defendant has a primary target and
reasons [that] he cannot miss that intended target if he kills
everyone in the area in which the target is located.’ ” (Canizales,
supra, 7 Cal.5th at p. 607.)
The Canizales court anticipated that, in light of its
refinement of the kill zone test, “there will be relatively few cases
in which the theory will be applicable” and cautioned trial courts
to “provide an instruction to the jury only in those cases where
the court concludes there is sufficient evidence to support a
jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm.” (Canizales, supra, 7 Cal.5th
at p. 608; see People v. Cardenas (2020) 53 Cal.App.5th 102, 112
15
(Cardenas) [under Canizales’s “strict requirements of the kill
zone theory[,] the defendant must have specifically intended to
kill everyone in the area around the primary target as a means of
killing the primary target”].) “The use or attempted use of force
that merely endangered everyone in the area is insufficient to
support a kill zone instruction.” (Canizales, supra, 7 Cal.5th at
p. 608.)
People v. Booker (2020) 58 Cal.App.5th 482 (Booker) is
instructive. In Booker, codefendants Damon Booker and George
Lewis were members of the Poccet Hood gang. (Id. at p. 494.)
They and other Poccet Hood gang members were in a liquor store
where they saw Jose Raya speaking with someone who was
a member of a Poccet Hood rival gang. (Id. at pp. 488, 502.)
Raya was not a member of a gang. (Id. at p. 488.) Raya and his
girlfriend, Reann Lott, left the liquor store in Lott’s car. Raya
was driving and Lott was in the front passenger seat. (Ibid.)
Lewis, with Booker in the passenger seat, followed Raya in a
white car. As Lewis and Booker pulled up next to Raya, Raya
told Lott to duck down. As she ducked, Lott saw a hand emerge
from the front passenger window of the white car and heard
five shots fired at their car. (Ibid.) (Other evidence indicated
that Booker fired as few as three and as many as seven shots.)
(Id. at p. 500, fn. 12.) Raya was hit and died as a result of
multiple gunshot wounds to his head. (Id. at pp. 488−489.)
Booker and Lewis were convicted of the murder of Raya and
the attempted murder of Lott. (Id. at p. 487.) With respect to
the attempted murder count, the court had instructed the jury
on the kill zone theory. (Id. at p. 496.)
Division Seven of this court reversed the attempted murder
conviction. After an extensive discussion of the development
16
of the Supreme Court’s kill zone jurisprudence, culminating in
Canizales, the court explained: “[T]he type and extent of force
used do not support a reasonable inference Booker and Lewis
intended to kill Raya by killing everyone in the car’s cabin. At
most, the evidence supports a reasonable inference [that] Booker
and Lewis acted with conscious disregard of the risk Lott might
be seriously injured or killed. . . . Booker as sole shooter fired a
total of three to seven shots directed at the front driver’s side of
Lott’s stationary car. Further, Booker’s shots were directed at
Raya at close range, striking him twice in his head and once in
his arm in a manner consistent with Raya defensively raising
his left arm during the shooting. The driver’s side front window
of Lott’s car was shattered, but there were no bullet holes in the
car’s body or doors that would have reflected a spray of bullets.
Nor was there evidence any bullets reached the front passenger
side of the car where Lott was sitting, and Lott was not
injured. . . . And finally, there was no evidence suggesting
Booker used a rapid-firing semiautomatic or automatic weapon.”
(Booker, supra, 58 Cal.App.5th at p. 500, fn. omitted.)
Turning to the instant case, there was insufficient evidence
to support a kill zone instruction with respect to count 2—the
alleged attempted murder of Jesus A. The evidence was
undisputed that the Pathfinder pulled up alongside the SUV
driven by Sahagun. Jesus A. was in the front passenger seat of
Sahagun’s vehicle. Gomez got out of the Pathfinder, approached
the driver’s side of Sahagun’s SUV and fired one to three shots
at Sahagun from less than one foot away. The Attorney General
concedes, this evidence demonstrates that “Gomez specifically
targeted Sahagun.” There was no evidence of a “spray of bullets”
within Sahagun’s vehicle or other evidence from which a jury
17
could reasonably infer that Gomez intended to kill Jesus A. or
anyone else in the vehicle as a means of ensuring Sahagun’s
death. There was, therefore, insufficient evidence to support
a finding that Gomez intended to kill Jesus A. under a kill zone
theory.
We reach the same conclusion with respect to count 8 (the
attempted murder of Robert G.) and count 14 (the attempted
murder of Maria G.). These alleged victims were the passengers
in cars driven by Leslie G. and Benjamin G., respectively. The
Attorney General concedes that the drivers—the persons closest
to Lazo’s gun—were the specific targets in both cases. In neither
instance is there substantial evidence that Lazo “intended
to create a zone of fatal harm—that is, an area in which [he]
intended to kill everyone present to ensure the primary target’s
death—around the primary target.” (Canizales, supra, 7 Cal.5th
at p. 607.) There is no evidence that a bullet entered the cabin
of Leslie G. and Robert G.’s car and the only bullet that entered
Benjamin G. and Maria G.’s car hit Benjamin G. Although the
distances between Lazo’s gun and his targeted victims were
farther than the distance between the shooter and target in
Booker, the slightly greater distances are not enough to compel
a different result. As in Booker, “[a]t most, the evidence supports
a reasonable inference [that the shooter] acted with conscious
disregard of the risk [that the passengers] might be seriously
injured or killed.” (Booker, supra, 58 Cal.App.5th at p. 500.)
Subjecting the passengers to such “lethal risk,” however, is
insufficient to support the application of the kill zone theory.
(Canizales, supra, 7 Cal.5th at p. 607; accord, Cardenas, supra,
53 Cal.App.5th at p. 116.)
18
The Attorney General argues that “[f]iring more than
enough bullets to kill the driver and passenger at close range
meets the definition of creating a kill zone.” No authority is cited
for this statement and, as Booker demonstrates, it is incorrect.
Although the shooter in Booker fired as many as seven shots
at the driver sitting next to a front seat passenger, the evidence
was insufficient to support a kill zone instruction. Here, the
additional shots Gomez and Lazo fired undoubtedly endangered
others in the cars driven by Sahagun, Benjamin G., and Leslie G.,
but such endangerment, without more, “is insufficient to support
a kill zone instruction.” (Canizales, supra, 7 Cal.5th at p. 608.)
Because we conclude that the convictions on counts 2, 8,
and 14 must be reversed for insufficient evidence under our
high court’s kill zone authorities, we need not consider Lazo’s
challenges to the kill zone instructions on those counts or to
alleged misconduct by the prosecutor in arguing the kill zone
theory to the jury.
B. Gang Expert’s Evidence of Predicate Offenses
Lazo contends that the gang enhancements and gang-
related firearm enhancements must be reversed because the gang
expert’s evidence of predicate offenses was based on inadmissible
hearsay. Although we agree with Lazo’s claim of error, we
conclude that the error was harmless with respect to all but one
of the gang enhancement findings.
To prove a gang enhancement allegation under
section 186.22, subdivision (b), the prosecution is required
to prove that members of a relevant gang engage in, or have
engaged in, a “pattern of criminal gang activity.” (§ 186.22,
subd. (f).) That phrase is defined in part as the commission or
attempted commission of “two or more” enumerated offenses,
19
commonly referred to as predicate offenses. (Id., subd. (e);
Valencia, supra, 11 Cal.5th at p. 826.) The enumerated offenses
include murder and carjacking. (§ 186.22, subd. (e)(3) & (21).)
The required two or more predicate offenses must be
“committed on separate occasions, or by two or more persons”
(§ 186.22, subd. (e)) and prior to or contemporaneous with
the charged offense (People v. Duran (2002) 97 Cal.App.4th
1448, 1458 (Duran)). This requirement can be satisfied with
“evidence of the defendant’s commission of the charged offense
and the contemporaneous commission of a second predicate
offense by a fellow gang member” (People v. Loeun (1997) 17
Cal.4th 1, 10 (Loeun)) other than aiding and abetting the charged
offense (People v. Zermeno (1999) 21 Cal.4th 927, 932 (Zermeno)).
In Valencia, a case decided after the trial in this case,
the prosecution sought to prove the predicate offense requirement
by introducing certified copies of court documents related to
convictions of three ostensible gang members and the testimony
of a gang expert concerning the facts of the offenses. (Valencia,
supra, 11 Cal.5th at p. 827.) The gang expert, however, had
no personal knowledge of such facts; his knowledge “came from
conversations with other officers and a review of police reports.”
(Ibid.)
The Valencia court discussed a distinction the court had
drawn in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez),
between gang expert testimony concerning background
information and testimony regarding “case-specific facts.”
(Valencia, supra, 11 Cal.5th at pp. 830−831.) Background
information includes facts that “are generally accepted by
experts in their field of expertise” and “will usually be applicable
to all similar cases.” (Id. at p. 836; see also id. at p. 837, fn. 15
20
[“ ‘general background information’ refers to expert knowledge
derived from hearsay that is generally accepted as accurate by
experts in the field”].) Experts may testify to such information,
notwithstanding its hearsay derivation, the court explained,
because “[a] level of reliability is provided when an expert lays
foundation as to facts grounded in his or her expertise and
generally accepted in that field.” (Id. at p. 836.)
By contrast, the court in Sanchez explained, “ ‘[c]ase-
specific facts are those relating to the particular events and
participants alleged to have been involved in the case being
tried.’ ” (Valencia, supra, 11 Cal.5th at p. 831, quoting Sanchez,
supra, 63 Cal.4th at p. 676.) “ ‘If an expert testifies to case-
specific out-of-court statements to explain the bases for his
opinion, those statements are necessarily considered by the jury
for their truth, thus rendering them hearsay. Like any other
hearsay evidence, it must be properly admitted through an
applicable hearsay exception.’ ” (Valencia, supra, 11 Cal.5th
at p. 833, quoting Sanchez, supra, 63 Cal.4th at p. 684.)
The Valencia court “acknowledge[d] that the statutorily
required predicate offenses do not fit neatly into the description
[of case-specific facts] Sanchez provided” because the predicate
offenses will “have occurred before ‘the case being tried.’ ”
(Valencia, supra, 11 Cal.5th at p. 839.) The court concluded,
however, “that facts concerning particular events and
participants alleged to have been involved in predicate offenses,
too, constitute case-specific facts that must be proved by
independently admissible evidence.” (Ibid.) Proof of such facts,
therefore, “may not be established solely by the testimony of
an expert who has no personal knowledge of [such] facts.” (Id.
at p. 826.)
21
Applying this rule to the case before it, the Supreme
Court explained that the gang expert’s testimony concerning
the proffered predicate offenses was inadmissible hearsay
and the contents of police reports, which the expert relied
on, constituted testimonial hearsay for purposes of the Sixth
Amendment’s confrontation clause. (Valencia, supra, 11 Cal.5th
at pp. 839−840.) Under the applicable Chapman8 standard for
prejudice, the court concluded, the error was not harmless and
required reversal. (Id. at p. 840.)9
Applying Valencia’s holding here, Deputy Sarti’s testimony
regarding the predicate offenses committed by Jose Antonio
Garcia and Richard Arredondo included inadmissible hearsay.10
8 Chapman v. California (1967) 386 U.S. 18.
9The Supreme Court decided Valencia on July 1, 2021.
Although the Attorney General filed his respondent’s brief five
weeks later, he does not mention the case.
10 Although Lazo’s counsel did not object to Deputy Sarti’s
testimony regarding the predicate offenses, we do not deem the
argument forfeited. Valencia had not been decided at the time
of Lazo’s trial and the weight of appellate authority supported
the prosecution’s use of expert testimony to prove the predicate
offenses. (See, e.g., People v. Bermudez (2020) 45 Cal.App.5th
358, 376, disapproved in Valencia, supra, 11 Cal.5th at p. 839,
fn. 17; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411,
disapproved in Valencia, supra, 11 Cal.5th at p. 839, fn. 17;
People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175,
disapproved in Valencia, supra, 11 Cal.5th at p. 839, fn. 17.)
A “defendant need not predict subsequent substantive changes
in law in order to preserve objections.” (People v. Perez (2020)
9 Cal.5th 1, 10.) Moreover, because the issue implicates Lazo’s
substantial rights, we exercise our discretion to review the issue.
22
Although the court minute orders the prosecution introduced into
evidence may be admissible to prove the fact of the convictions
of Garcia and Arredondo reflected in the orders (see People v.
Thompkins (2020) 50 Cal.App.5th 365, 412−413; Evid. Code,
§ 452.5, subd. (b)), they do not reflect Garcia’s or Arredondo’s
gang membership. (See People v. Garcia (2020) 46 Cal.App.5th
123, 171−172 [“the use of a record of a prior conviction to prove
any fact other than the fact of conviction violates the Sixth
Amendment”].) Such facts are “case-specific facts that must be
proved by independently admissible evidence.” (Valencia, supra,
11 Cal.5th at p. 839.) Deputy Sarti’s testimony that Garcia and
Arredondo were Southside Whittier gang members was not based
on his personal knowledge, but rather on inadmissible hearsay
from field identification cards and arrest cards prepared by
others. Under Valencia, therefore, the evidence was improper.11
If the only evidence of predicate offenses was Deputy
Sarti’s testimony regarding Garcia and Arredondo, Valencia
would require reversal of the gang enhancements. Under
(See § 1259; In re Sheena K. (2007) 40 Cal.4th 875, 887−888,
fn. 7; People v. Williams (1998) 17 Cal.4th 148, 161−162, fn. 6.)
11 Deputy Sarti also referred to pictures of tattoos on
Garcia and Arredondo, which he stated depicted their “gang
affiliation.” Gang tattoos are not hearsay. (People v. Iraheta
(2017) 14 Cal.App.5th 1228, 1248.) Deputy Sarti, however,
did not describe the tattoos or testify that they evidenced
membership in Southside Whittier. His testimony about the
tattoos, therefore, does not constitute substantial evidence of
Garcia’s or Arredondo’s membership in the Southside Whittier
gang.
23
Watson,12 we will reverse if it is reasonably probable that the
defendant would have obtained a more favorable result in
the absence of the error. (Watson, supra, 46 Cal.2d at p. 836.)
Here, if Deputy Sarti’s opinions that Garcia and Arredondo
were Southside Whittier gang members were properly excluded,
there would have been no evidence of their gang membership;
and without such evidence, the prosecution would have failed
to establish that the crimes committed by Garcia and Arredondo
are predicate offenses for purposes of the gang enhancement.
The Attorney General, however, asserts that any error
in allowing Deputy Sarti to testify as to the predicate offenses
committed by Garcia and Arredondo is harmless because the
prosecution also relied on the charged crimes committed by
Lazo and the contemporaneous crimes that Gomez committed.
Indeed, with respect to the predicate offense issue, the prosecutor
argued to the jury: “The current crime itself . . . can [be used to
show] a pattern of criminal activity as a predicate. Or I can
bring in other evidence that there [were] other crimes committed
by Southside Whittier. So what do we have? In this case we
have two defendants, two suspects at least, Reyna Gomez and
this defendant here, Alejandro Lazo, committing the crimes of
murder, attempted murder, [and] carjacking . . . . So we have
that evidence here. I’ve also provided you with those two court
minute orders . . . . One of them was [regarding] a Southside gang
member by the name of Richard Arredondo and the other was a
Southside Jose Garcia.”
The Attorney General’s argument has merit. As noted
above, the predicate offense requirement can be satisfied with
12 People v. Watson (1956) 46 Cal.2d 818.
24
“evidence of the defendant’s commission of the charged offense
and the contemporaneous commission of a second predicate
offense by a fellow gang member.” (Loeun, supra, 17 Cal.4th
at p. 10.) In contrast to Deputy Sarti’s inadmissible opinions of
Garcia’s and Arredondo’s gang membership, Deputy Maldonado’s
testimony regarding her personal interactions with Lazo and
Gomez at Mayberry Park in April 2017, when they admitted
to her that they are Southside Whittier gang members, is
admissible and sufficient evidence to establish that Lazo and
Gomez are such gang members.
Because Lazo and Gomez are fellow Southside Whittier
gang members, Lazo’s crime of attempting to murder Michael L.,
for example, constitutes a predicate offense for purposes of that
charged offense; and, if Gomez attempted to murder Tommy A.
11 minutes earlier, her crime constitutes a second predicate
offense. A similar correlation of charged offenses committed
by Lazo with a prior offense committed by fellow gang member
Gomez can be established for each of the charged crimes except
the first—the carjacking of the Pathfinder. The evidence of the
carjacking establishes that Lazo, who pointed a gun at Johnny G.
and demanded that he get out of the Pathfinder, was the direct
perpetrator and Gomez, who stood at the passenger side of the
Pathfinder and entered the Pathfinder with Lazo, aided and
abetted Lazo in that crime. Because our Supreme Court has
held that aiding and abetting a crime does not constitute a second
predicate offense with respect to a crime perpetrated directly by
the defendant (Zermeno, supra, 21 Cal.4th at p. 932), Gomez’s
apparent aiding and abetting of the carjacking cannot satisfy the
predicate offense requirement in proving the gang enhancement
connected to Lazo’s carjacking offense. Nor can the Attorney
25
General rely on Gomez’s criminal conduct after the carjacking
as a predicate offense with respect to the carjacking count. (See
Duran, supra, 97 Cal.App.4th at p. 1458; People v. Godinez (1993)
17 Cal.App.4th 1363, 1365.)
It follows from the foregoing that the jury’s true findings
of the gang enhancement allegations must be reversed if the
findings are based on the inadmissible evidence introduced
through Deputy Sarti regarding the predicate offenses that
Garcia and Arredondo committed, but (with the exception
of the finding connected to the carjacking count) affirmed if
the findings are based on the evidence of Lazo’s and Gomez’s
criminal conduct.
As noted above, the prosecutor expressly argued both
factual theories to the jury. If the problem with the jury’s
possible reliance on Deputy Sarti’s evidence concerning Garcia
and Arredondo was that such evidence was insufficient to
establish the predicate offenses, we would presume that the
jury relied on the factually adequate alternative ground and
affirm the enhancement findings (with the exception of the
enhancement as to the carjacking conviction). (See People v.
Guiton (1993) 4 Cal.4th 1116, 1129.) Here, however, where one
of the factual theories of predicate offenses is defective because
it is based on inadmissible evidence, our Supreme Court has
explained that the error is prejudicial if the “reviewing court is
unable to determine from the record whether a jury convicted on
admissible evidence or rejected that evidence and convicted on
inadmissible evidence improperly received.” (People v. Robinson
(1964) 61 Cal.2d 373, 406; accord, People v. Green (1980) 27
Cal.3d 1, 69.) If, however, “on the record it appears beyond a
reasonable doubt that the jury based its verdict on the theory
26
supported by ‘admissible evidence submitted under correct
instructions[,]’ . . . there is no miscarriage of justice and the
judgment must be affirmed. (People v. Cantrell (1973) 8 Cal.3d
672, 686; see People v. Aledamat (2019) 8 Cal.5th 1, 13 [applying
Chapman’s beyond a reasonable doubt harmless error standard
in cases of “alternative-theory error”].)
Here, as to each of the charged offenses, the jury’s verdicts
necessarily establish that one Southside Whittier gang member—
namely, Lazo—committed a predicate offense prior to, or
contemporaneous with, the charged offenses. (See People v.
Gardeley (1996) 14 Cal.4th 605, 625; Loeun, supra, 17 Cal.4th
at p. 4.) More specifically, the jury’s verdict that Lazo committed
carjacking—one of the crimes enumerated in section 186.22,
subdivision (e)—constitutes a predicate offense as to the
carjacking offense as well as to the subsequent murder and
attempted murders of which he was convicted. The verdicts
thus establish beyond a reasonable doubt that the jury found
that Lazo himself committed offenses that constitute predicate
offenses under the gang enhancement statute.
We must still be convinced beyond a reasonable doubt that
the jury found that Gomez had committed a predicate offense
prior to or contemporaneously with Lazo’s crimes. (§ 186.22,
subd. (e).) Although the jury did not render verdicts or make
express findings that Gomez committed crimes in this case,
the verdicts it rendered against Lazo and the evidence in this
case lead us to conclude beyond a reasonable doubt that the jury
determined that Gomez, a Southside Whittier gang member,
attempted to murder Tommy A. The evidence was undisputed
that Lazo drove the carjacked Pathfinder up to Tommy A.,
handed a gun to Gomez, and told Gomez to “shoot him.” Gomez
27
fired at Tommy A. and hit him in his groin area. She then raised
the gun, aimed it at Tommy A.’s head, and pulled the trigger.
The gun, however, jammed and Tommy A. was able to escape.
Based on this evidence, the jury found Lazo guilty of attempted
murder on a theory that he aided and abetted the perpetrator:
Gomez. Even if that verdict alone does not necessarily imply
that Gomez had the requisite mental state necessary to be guilty
of attempted murder (see People v. McCoy (2001) 25 Cal.4th
1111, 1122 [an aider and abettor’s guilt may be greater than
the actual perpetrator’s]), when the verdict is viewed in light
of the evidence, the inference of her guilt is so compelling as
to allow no reasonable doubt that the jury found that Gomez
had committed that crime for purposes of establishing a second
predicate offense by a Southside Whittier gang member.
The error in allowing Deputy Sarti’s opinion testimony
regarding the gang membership of Garcia and Arredondo and
of presenting to the jury a theory of predicate offenses based on
such evidence is therefore harmless, except, as explained above,
with respect to the enhancement associated with the carjacking
conviction. Because there was no lawful basis upon which the
jury could have found two predicate offenses associated with the
carjacking count, the gang enhancement for that count must be
reversed.
C. Sufficiency of the Evidence to Support the
Gang Enhancements
Lazo further argues that the evidence was insufficient to
support the finding that he committed his crimes “for the benefit
of, at the direction of, or in association with any criminal street
gang.” (§ 186.22, subd. (b).) We reject the argument.
28
Whether a crime is committed in association with a gang
can be established by expert testimony (People v. Albillar (2010)
51 Cal.4th 47, 63), provided it is not “purely conclusory” (People v.
Prunty (2015) 62 Cal.4th 59, 85). Here, Deputy Sarti testified
that gang members will work with other gang members because
they can trust each other. “They would rather take someone
within their gang that they trust and they know are going to
be loyal to them in case they get caught.” Committing crimes
with another trusted gang member, Deputy Sarti testified,
increases the likelihood that they will complete the crime without
getting caught. Gang members will also commit crimes with
one another so that each has someone that can confirm that he
or she committed the crimes, which can enhance the individual’s
standing within the gang. In response to a hypothetical question
that mirrored the facts of this case, including the fact that
two gang members committed the crimes together, Deputy Sarti
opined that the hypothetical criminals were acting in association
with a gang because “there’s two individuals from the same gang
working together to commit these crimes.”
In addition to Deputy Sarti’s testimony, there is evidence
that Lazo’s and Gomez’s crime spree began as a broader
Southside Whittier gang-related enterprise. The carjacking that
provided the vehicle for committing the shootings involved not
only Lazo and Gomez, but at least two others who were together
with Lazo and Gomez in the white car that pulled up behind the
Pathfinder. As Lazo and Gomez drove away in the Pathfinder,
two men got out of the white car and told Johnny G. words to the
effect of, “this is South Side.” Jurors could easily infer from that
statement that the carjacking was gang-related and reasonably
29
infer that the shooting spree that followed soon afterward was
connected with the carjacking and similarly gang-related.
Based on the foregoing, the evidence was sufficient to
support findings that Lazo committed the crimes in association
with a criminal street gang.
D. Exhibit 49—Minute Order re Lazo’s Prior
Offense
The prosecution introduced exhibit 49 while questioning
Deputy Sarti about predicate offenses. The first three pages of
the exhibit are minute orders issued in the case of People v. Jose
Antonio Garcia (L.A. Sup. Ct. case No. VA141398). As discussed
above, the minute orders reflect the conviction of Garcia of the
crime of being a felon in possession of a firearm. Following the
first three pages are five pages of court minute orders in the case
of People v. Alejandro Lazo (L.A. Sup. Ct. case No. VA139882),
presumably the defendant in this case. These pages, appear to
reflect Lazo’s conviction by plea in February 2016 of violating
section 245, subdivision (a)(1) and section 520.13 The document
also states that the court sentenced Lazo to three years in prison
on each count, with the sentence on the second count to run
concurrently with the first.
13 The minute order does not indicate the substance of
section 245, subdivision (a) or section 520. Section 520, at the
relevant time, prescribed the punishment for extortion of “any
money or other property from another, under circumstances
not amounting to robbery or carjacking, by means of force, or
any threat.” (Former § 520.) Section 245, subdivision (a)(1)
criminalizes assault with a deadly weapon other than a firearm.
30
Lazo contends that the inclusion of the five pages referring
to his prior conviction constitutes prosecutorial misconduct and
deprived him of his right to a fair trial.
Lazo has forfeited any argument concerning the admission
of the extraneous pages in exhibit 49 by failing to object to them
below. (See People v. Ashmus (1991) 54 Cal.3d 932, 976; People v.
Valdez (2004) 32 Cal.4th 73, 124−125.) As the Attorney General
points out, the inclusion of the pages referring to Lazo could have
been avoided if counsel had raised the issue any time prior to
the commencement of jury deliberations. Lazo did not, however,
raise any objection to the document or otherwise bring the issue
to the court’s attention in any way.
In any event, the inclusion of the extra pages, which the
Attorney General describes as a “careless mistake,” does not
constitute a “deceptive or reprehensible” prosecutorial method
(see People v. Hill (1998) 17 Cal.4th 800, 819) and did not deprive
Lazo of a fair trial. Nor is there any basis for concluding that the
exhibit was prejudicial under any standard. The only reference
to exhibit 49 during trial occurred when the prosecutor drew
Deputy Sarti’s attention to “just the top page” of the exhibit,
and asked the deputy if it indicated that Jose Antonio Garcia
committed the crime of being a “felon with a firearm.” Deputy
Sarti said it did. Neither side thereafter referred to the exhibit
or mentioned it during closing arguments. The jury did not ask
any question about the document. Indeed, there is no reason to
believe that the jury, if it looked at the document at all, looked
beyond the “top page”—the only page that the prosecutor
indicated was relevant. Even if a juror did notice the additional
pages attached to the Garcia minute orders, there is no reason to
believe that the information had any effect on the jury’s verdict.
31
Lazo further contends that his counsel was constitutionally
deficient by failing to examine exhibit 49 and object to the
offending pages of the exhibit. Even if we assume that counsel
acted below the standard of care by failing to inspect the exhibit
or object to it, Lazo has made no showing that these deficiencies
in counsel’s performance were prejudicial under Strickland v.
Washington (1984) 466 U.S. 668.
E. Exhibit 48—Notation of Parole on Field
Identification Cards
The prosecution introduced the two field identification
cards concerning Lazo as evidence that Lazo had admitted to
Deputy Maldonado to being a member of the Southside Whittier
gang. On the back side of the cards, there is a box that is checked
in front of the word, “parole.” Lazo contends that his status as
a parolee was irrelevant and unduly prejudicial under Evidence
Code section 352, and that the reference to “parole” should have
been redacted.
The argument is forfeited by failing to raise it below. In
any case, the prosecutor’s failure to redact the reference to parole
does not constitute misconduct. The prosecutor did not refer to
the offending statement or question any witness about it, and
there is no basis in the record for concluding that it came to the
attention of any juror or, if it did, that it had a prejudicial effect
on the verdict. For the same reason, Lazo’s argument that he
was deprived of the effective assistance of counsel because his
counsel failed to object to the reference is without merit.
32
F. Prosecutor Comments on Ballistics Expert
Testimony
Lazo contends that the prosecutor committed prejudicial
misconduct by vouching for the credibility of the ballistics
evidence. There was no error.
A criminalist and ballistics expert testified to her opinion
that the gun found next to Lazo in the white Kia fired bullets
connected to cartridges found in the Pathfinder and a bullet
taken from Sahagun’s body. The expert explained how she
compared the marks on the bullet cartridges found in the
Pathfinder and on the bullet taken from Sahagun’s body with
marks on bullets and bullet cartridges created when she test-
fired Lazo’s gun.
After her testimony, the court permitted a juror to submit
a question to the ballistics expert asking: What is the probability
that markings on the bullets and cartridges could match both
the tested gun and another gun? The expert answered: “This is
not a field like DNA in which there is [sic] genetic populations
or probability that can be stated at this point. There is research
being conducted to better answer that question,” including the
development of “software and . . . algorithms with computers and
technology to supplement the examiner’s opinion and develop
some better statistics around the field, but today there is no
number that I can give. It’s not analogous to DNA.” On cross-
examination regarding the question, the expert stated that,
“as an examiner[,] what I’m looking for is a certain quantity
and quality of marks that have duplicated, that have reproduced,
not 100 percent.”
During closing argument, the prosecutor addressed the
juror’s question and the expert’s response. He acknowledged
33
that the expert stated that “there’s no statistical analysis for
[ballistics testing],” and added: “The alternative is this. The
alternative is that this defendant here is seen in that car, in
that green Pathfinder, his DNA is found in that green Pathfinder.
His DNA is found in the Kia. He is found with a gun that has
his DNA in the magazine of that gun. He’s got that gun in his
hip pocket. The alternative to this gun being the same gun used
by this defendant to shoot Tommy [A.], the alternative is that
somebody else on that particular Saturday, on April 29th of 2017,
another male Hispanic, female Hispanic got a green Pathfinder,
went to all these various locations, shot all these people and
somehow the gun that they had . . . leaves the exact same
ballistic imprints that’s found on the gun that this defendant had
that night. That is—I’m just going to say it. That is impossible.
Okay? Because that’s the alternative. Because all the evidence
points to this defendant being the shooter, this defendant being
the driver, this defendant having the gun. And to say that
there’s a possible other gun that might have been used in those
series of facts, it’s just not possible.” Lazo did not object to these
statements.
During his rebuttal argument, the prosecutor reiterated his
point: “[T]he alternative [to the argument that Lazo’s gun is the
gun used in the subject shootings] is somebody else has the exact
same firearm in the exact same car, a green Pathfinder, a white
Kia, and they went on the same exact rampage that they did[,]
and it just so happens that the two guns that shoot exactly alike
and leave the exact same defects, one of them falls into [Lazo’s]
hip pocket. And that is unreasonable. That is impossible.”
Again, Lazo did not object.
34
On appeal, Lazo contends that the prosecutor’s comments
amounted to “unsworn testimony without being subject to
cross-examination” and created “a significant danger the jurors
would misunderstand the prosecutor’s comments to mean they
were not required to independently assess the ballistics expert’s
testimony.”
Lazo forfeited this argument by failing to object to
the prosecutor’s statements. Even if the argument has been
preserved, it is without merit. We agree with the Attorney
General that the prosecutor’s comments did not constitute
improper vouching for the ballistics expert or were otherwise
outside the “wide latitude” that prosecutors are given during
argument. (People v. Bonilla (2007) 41 Cal.4th 313, 336–337; see
People v. Frye (1998) 18 Cal.4th 894, 971 [prosecutor does not
commit improper vouching when his comments about a witness’s
testimony “are based on the ‘facts of [the] record and the
inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief ’ ”].)
G. Alleged Vouching for Deputy Sarti
Lazo argues that the prosecutor committed misconduct
by improperly vouching for Deputy Sarti during the prosecutor’s
rebuttal argument. Even if the argument was not forfeited by
Lazo’s failure to object during trial, he has failed to establish
prejudicial error.
During cross-examination of Deputy Sarti, defense counsel
asked how often Deputy Sarti, in testifying as a gang expert,
concluded that the crimes described in a prosecutor’s hypothetical
were committed for the benefit of or in association with a gang.
Deputy Sarti answered, “[p]robably 80 or 90 percent” of the time.
35
During the defense closing argument, counsel argued
that Deputy Sarti is “given a hypothetical that exactly mirrors
this case, and then he is asked[,] is this done for the benefit of,
direction, or in association with a criminal street gang? He says
yes. Of course.”
During the prosecutor’s rebuttal argument, the prosecutor
addressed Deputy Sarti’s testimony that he opines favorably for
the prosecution 80 or 90 percent of the time. Counsel argued:
“But what he also testified is this. Look, in the other [10] to
20 percent of the time I don’t see it. I don’t see it. I don’t see
the relationship between gangs and a crime and I don’t think it’s
done for the benefit of a gang. And what he told you is this. If a
D.A. asks me to do it, I tell them no. If a D.A. asked me to do it, I
would get up on the stand and I would say no. There’s no reason
for him to put his career on the line and get up here and just
simply rubber stamp anything that the prosecution is asking him
to say.” Lazo asserts that this last sentence, which he quotes in
isolation, constitutes improper vouching for Deputy Sarti.
Lazo did not object to the statement below and his
challenge on appeal is therefore forfeited. Even if the argument
is not forfeited, the challenged statement is within the “ ‘wide
latitude’ ” counsel is given to fairly comment on the evidence.
(People v. Wharton (1991) 53 Cal.3d 522, 567.)
H. Alleged Misconduct During Prosecutor’s
Re-argument on Count 1
After two days of deliberations, the jury informed the court
that it had “agreed on all the counts but one.” The remaining
count was count 1, the murder of Sahagun. The court read the
verdicts on the counts the jury had reached, which included the
findings that the attempted murders were committed willfully,
36
deliberately, and with premeditation. Upon inquiry from the
court, the jury asked for clarification regarding aiding and
abetting liability (to which the court referred them to jury
instructions on the point) and requested re-argument with
respect to “the criteria for first degree murder as it applies to
this case.”
Lazo contends that the prosecutor committed misconduct
during the re-argument by lowering the prosecutor’s burden of
proof, misstating the evidence, and misstating the law. These
arguments have been forfeited by failing to raise the issue below.
Even if not forfeited, we would reject them on the merits as we
explain below.
The prosecutor argued that in determining whether Lazo
committed first degree murder of Sahagun, “you [the jurors]
have to look at the totality of what happened [that] day,” not
at the shooting of Sahagun in “isolation alone.” The prosecutor
proceeded to recount the shooting of Tommy A., where Lazo
“hands the gun to [Gomez] and tells her to shoot him.” The
prosecutor further described the other attempted murders,
which the jurors had previously found were committed with
premeditation, willfulness, and deliberation. The prosecutor
then argued: “You all found that each of those individuals in the
car that were lined up in front of him he had the premeditation,
the willfulness and deliberation to kill each of those as well.
So it’s unlikely—in fact, I’d say it’s unreasonable for him to
have that premeditation and willfulness and deliberation to kill
Tommy [A.], Michael [L.], Benjamin [G.], Maria [G.], Anthony [E.]
and then get to the Sahagun family and not have that specific
intent to kill him, and then when he gets the gun back and
goes on his shooting spree again attempt[s] to kill Lisa [R.],
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William [K.], Leticia [A.], Julio [R.]—you found that he had the
premeditation, willfulness and deliberation in the attempted
murders of the people preceding Mr. Sahagun and after Mr.
Sahagun. And to believe that when it came to Mr. Sahagun he
did not have the premeditation and willfulness and deliberation,
I think that goes counter to the evidence. So based on the facts
that we have here of that intent that he had to kill from the
very beginning of . . . Tommy [A.] all the way to the end of . . .
William [K.], he had that same premeditation and willfulness and
deliberation to kill along the way when it came to Mr. Sahagun
as well.”
Lazo contends that the prosecutor’s argument “improperly
bootstrapped the unresolved murder charge to the multiple guilty
verdicts already rendered” and that the effect of the argument
“was to remove the elements of the murder charge from the
jury’s consideration and to lower the prosecution’s burden of
proving all elements of the murder charge beyond a reasonable
doubt.” We disagree. The prosecutor argued, in essence, that
the jury can infer from the fact that Lazo acted with willfulness,
premeditation, and deliberation in the commission of the
attempted murders that took place before and after the shooting
of Sahagun that he acted with the same mental state when
he aided and abetted Gomez in the shooting of Sahagun.
The statements did not lessen the burden of proof and do not
constitute misconduct.
Lazo further contends that the prosecutor committed
misconduct by misstating the evidence when he argued that
Lazo handed the gun to Gomez prior to Gomez “exiting the
vehicle” just before she shot Sahagun. We reject the argument.
The prosecutor argued that, after Gomez shot Tommy A., Lazo
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had possession of the gun during the attempted murders of
Michael L., Benjamin G., and Anthony E. prior to reaching the
intersection of Santa Gertrudes and Alicante. The prosecutor
then stated that Lazo “gives that gun to . . . Gomez just like he
did with [the shooting of] . . . Tommy [A.] . . . [¶] . . . He had to
turn that gun over to . . . Gomez because he’s used it immediately
before. He knows what . . . Gomez is capable of. He has told her
what to do. He has seen her do it. And he hands that gun over
to her when they pull up to the Sahaguns.”
The assertion that Lazo handed the gun to Gomez during
the short time between his attempted murders of Michael L.,
Benjamin G., and Anthony E.—all of which took place within
minutes of Gomez’s shooting of Sahagun—is a reasonable
inference, particularly in light of his handing of the gun to Gomez
for the purpose of shooting Tommy A. about one-half hour earlier.
The comment is not misconduct.
Lazo next argues that the prosecutor misstated the
law when he stated: “ The premeditation, willfulness and
deliberation, it doesn’t matter what the female did. It doesn’t
matter if . . . Gomez had other thoughts in her head. The fact
that . . . Lazo . . . had that premeditation and willfulness and
deliberation, that intent when he turned that gun over and she
ended up shooting and killing him, that makes him liable for
first degree murder.” Lazo argues that this is incorrect because
aiding and abetting the crime of murder requires the defendant
to “ ‘know and share the murderous intent of the actual
perpetrator.’ (People v. McCoy[, supra,] 25 Cal.4th [at p.] 1118.)”
Contrary to Lazo’s suggestion, the jury could have
convicted Lazo of first degree murder by aiding and abetting
Gomez even if “Gomez had other thoughts in her head” and did
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not premeditate or deliberate the murder herself. (See People v.
McCoy, supra, 25 Cal.4th at p. 1122 [“[A] person, with the mental
state necessary for an aider and abettor, helps or induces another
to kill, that person’s guilt is determined by the combined acts of
all the participants as well as that person’s own mens rea. If that
person’s mens rea is more culpable than another’s, that person’s
guilt may be greater even if the other might be deemed the actual
perpetrator.”].)
Because we conclude the prosecutor’s challenged comments
did not constitute misconduct, Lazo’s related arguments that
his counsel was ineffective by failing to object to the comments
necessarily fails.
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DISPOSITION
The attempted murder convictions on counts 2, 8, and 14
are reversed based on insufficiency of the evidence. The true
finding on the gang enhancement allegation under Penal Code
section 186.22, subdivision (b) as to the conviction on count 12
is reversed. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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