2013-06

P. v. Garcia CA5 ( 2013 )

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Filed 6/27/13 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F062834
Plaintiff and Respondent,
(Tulare Super. Ct. No.
v. VCF226445C)
RICHARD MIGUEL GARCIA,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Patrick
O’Hara, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Richard Miguel Garcia, a member of the Norteno gang, was a
passenger in a vehicle with three friends who were also Norteno gang members. They
had spent several hours at a cemetery, drinking beer and mourning the death of a relative
who had been killed by a rival Sureno gang member. As they drove through Orosi, they
saw two men walking on the street who were wearing blue, the color claimed by the rival
gang. One of the vehicle’s passengers shot and killed one of the men; defendant was not
the gunman. At trial, the prosecution’s gang expert testified the homicide was part of the
deadly turf battle between the two gangs in the Cutler-Orosi area.
Defendant was charged and convicted of count I, conspiracy to commit murder
(Pen. Code,1 §§ 182, subd. (a)(1), 187, subd. (a)). In count II, he was found not guilty of
the charged offense of first degree murder, and convicted of the lesser included offense of
second degree murder as an aider and abettor. The jury also found the offenses were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a
principal personally and intentionally discharged a firearm which proximately caused
death (§ 12022.53, subds. (d) & (e)(1)). Defendant was sentenced to 50 years to life.
On appeal, defendant raises several instructional issues and contends the jury was
incorrectly instructed on conspiracy to commit murder under an implied malice theory;
the jury should have been instructed on voluntary and involuntary manslaughter as lesser
included offenses of count II; the aiding and abetting language in CALCRIM No. 400
was erroneous; and the gang enhancement instructions were erroneous. Defendant also
challenges the evidence in support of his convictions for conspiracy and second degree
murder.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
We find that the instructions for conspiracy were incorrect and prejudicial, and
reverse that count. We affirm defendant’s conviction for second degree murder and the
special allegations therein, and correct defendant’s sentence.
FACTS
On the evening of August 28, 2009, two men wearing blue were walking along
Avenue 416 in Orosi. There were three other people on the street who were not involved
in the shooting, but witnessed the following events.
As the two men in blue walked on the street, a green Honda Accord appeared and
pulled up to where the two men were walking. There were four men in the Honda.
Someone in the car yelled the word “ ‘SuRat’ ” at the two men in blue.
One witness [J.R.] testified that the Honda’s driver and the man who was sitting in
the front passenger seat got out of the car. They threw cans at the two men in blue.2 This
same witness testified that the man sitting in the Honda’s back seat, behind the driver, got
out of the car and was holding a gun. The gunman initially aimed the gun at the witness,
but then realized the witness was not with the two men in blue. The gunman then turned
the weapon at the two men in blue, and fired five or six shots. One of the men fell down.
The other man appeared to be hit in the leg, but he was able to escape.
Another witness [G.C.] testified that the gunman got out of the Honda’s back seat,
and the other three men did not get out of the car or open their doors. The gunman fired
five or six shots, one man fell down, and the second man ran away. After firing the shots,
the gunman got back into the car, and the Honda left the area at a high rate of speed.
2 On cross-examination, this witness was impeached with his prior statement to
the deputies that the man in the front passenger seat, later identified as defendant, did not
get out of the car.
3.
The initial investigation
Around 7:50 p.m., deputies from the Tulare County Sheriff’s Department received
a dispatch about a gunshot victim on Avenue 416. The deputies found Arturo Bello lying
on the road. Bello was dead, and his head was in a pool of blood. He had been wearing a
blue tank top, a blue baseball cap, and white tennis shoes with a blue emblem. There
were no weapons near him. There was a beer bottle found on the street in the victim’s
general vicinity.
Apprehension of suspects
Shortly after the shooting, the deputies received the report that a dark colored
Honda was involved. Just after finding the victim’s body, the deputies saw a vehicle
matching the Honda’s description. It was traveling in excess of 75 miles per hour. The
Honda passed two deputies traveling in an unmarked patrol unit. The deputies
immediately activated the signal lights and siren to conduct a traffic stop. The Honda
slowed down and finally stopped.
There were four people in the Honda. Josh Hernandez (Josh) was the driver.
Defendant was sitting in the front passenger seat. Santos Hernandez (Santos), Josh’s
brother, and Rodney “Lance” Zayas were in the back seat.3
Josh was wearing a black baseball cap with a red letter “C,” and had a red bandana
hanging out of his back pocket. Josh had a tattoo on his arm in red ink which said
“Hernandez de Catela.”
Zayas had a .22-caliber live bullet in his pocket. Zayas also had “X4” and “TC”
tattoos, which were gang-related. Santos had a “C” tattoo on his arm, which stood for
Catela. Defendant did not have any visible tattoos and was not wearing any red or gang-
related attire when he was arrested.
3We will refer to Santos and Josh by their first names for ease of reference; no
disrespect is intended.
4.
At an in-field showup, one of the witnesses identified Zayas as the gunman, and
said the three other suspects had been in the Honda.
Search of the car
A Taurus nine-shot .22-caliber revolver was found on the floorboard of the
Honda’s backseat. It contained one .22-caliber live round but no expended shells. A
plastic case was also in the backseat, and it contained a single .22-caliber live round and a
cylinder lock. The live rounds which were found in Zayas’s pocket, the revolver, and the
plastic case were the same brand.
There were two CD cases in the car marked with the words “NorCal” and other
northern gang-related words. There were beer bottles in the car.
Searches of the suspects’ residences
The deputies searched defendant’s bedroom in his mother’s house and found a
Blackberry cell phone with gang photographs; a school group photo which depicted one
person throwing a “four” sign and had derogatory phrases about the southern gang
written on it; and other papers with gang letters on them. Defendant shared the bedroom
with his brother, and the cell phone belonged to his brother.
When the deputies searched Josh’s house in Bakersfield, they found a coffee mug
with a drawing of the Huelga bird, the words “Catela, BPC,” drawings of the “smile now,
cry later” masks, and it said: “ ‘F*** those who oppose.’ ” There was a photograph of
Josh “throwing up” a “four” sign with a red rag, signifying the Norteno gang.
Detective Crystal Derington testified that “Brown Pride Catela” was a northern
gang in Cutler, and the words on the mug were “basically calling out their rival saying
that they’ll take care of business and do what it takes to stand their ground and take
control of their territory .…”
Zayas’s house in Orosi was searched, and the deputies found a .12-gauge
Mossberg semiautomatic shotgun under the dresser in Zayas’s bedroom. It contained
5.
five shotgun shells. There was red clothing in Zayas’s bedroom closet. The deputies also
found three letters from jail inmates and a page of gang-rap lyrics.
The fatal gunshot wound
The victim suffered two gunshot wounds. The fatal wound entered his upper lip,
just below his nose. The bullet traveled front to back, slightly downward, and slightly
right to left. It fractured the victim’s teeth4 on his upper jaw, continued through the
airway in the back of the mouth, severed the brain stem from the spinal cord, and went
through the base of the skull. There was a fragment exit wound on the back of his scalp.
A small caliber bullet fragment with rifling marks was recovered from his neck. This
bullet wound was “immediately” fatal.
The victim had a second gunshot wound which entered the right side of his back.
The bullet’s trajectory was at an angle – slightly back to front, upward, and slightly left to
right. The bullet hit the liver, entered the right chest cavity, and hit a rib. There was no
exit wound. A deformed, small caliber bullet with rifling marks, and bullet fragments
were recovered from the victim’s body.
There were multiple abrasions on the victim’s face and body. The victim’s blood-
alcohol level was 0.18 percent, and there was evidence that he had ingested marijuana.
Defendant’s first statement
At 7:32 a.m. on August 29, 2009, Detective Zaragoza conducted a videotaped
interview with defendant. He advised defendant of the warnings pursuant to Miranda v.
Arizona (1966)

384 U.S. 436

(Miranda), and defendant agreed to answer questions about
the homicide.5 Defendant, who was 23 years old, said Josh picked him up the previous
4 Several teeth were found on the street near the victim’s body.
5 The videotapes of defendant’s two interviews were played for the jury and not
transcribed by the court reporter. The prosecution apparently prepared transcripts for the
jury to review during trial, but the transcripts were not introduced into evidence or
6.
day, and Zayas and Santos were in the car. Josh drove them to a cemetery, where they
visited the grave of Josh’s brother. They stayed there for about two hours and drank beer.
Defendant said they left the cemetery in Josh’s car. They were driving through Orosi
when defendant fell asleep. Defendant said when he woke up, the deputies were behind
Josh’s car to conduct the traffic stop. Defendant said he did not know anything about a
homicide, he did not do anything wrong, and he fell asleep after they left the cemetery.
At the end of the interview, Detective Zaragoza told defendant he was going to be booked
into jail and asked if he claimed membership in a gang. Defendant said he was not
involved in any gangs, and he could be housed in general population in the jail.
While not depicted on the videotape, Detective Zaragoza testified that defendant
was “dry heaving” into a waste basket for about 10 to 15 minutes at the beginning of the
interview, but he was coherent and did not appear under the influence. The videotape
reflects that defendant was calm and polite during the interview.
Defendant’s second statement
Around 9:00 a.m. on the same day, defendant asked to speak to the detectives
again, and said he had been too scared to tell the truth. Detective Zaragoza conducted
another videotaped interview. Defendant was again advised of the Miranda warnings,
and defendant said he wanted to talk to Zaragoza. Defendant was very calm and polite
during the interview.
Defendant said he lied during the first interview to protect Zayas, and that Zayas
fired the gun. Defendant said they left the cemetery in Josh’s car. Josh was driving,
defendant was in the front passenger seat, and Zayas and Santos were in the back seat.
included in the record. Our summary is based on our review of the videotapes
themselves, introduced as exhibit Nos. 69 and 70.
7.
Defendant said there were two men walking on the street, and they were wearing
blue. Josh drove past them, then turned the car around and pulled up right next to them.
Defendant said they did not yell at the men but “we all recognized them.”
Detective Zaragoza asked defendant, “Who came up with the idea to go
mobbing?”6 Defendant replied: “Well, we all did but we never thought that that was
going to happen.” Defendant said they had decided to have a barbeque, but first they
were going to do a little mobbing. They were driving around and “one thing led to
another.”
On further questioning, defendant said that Zayas was the person who said they
should go mobbing. Defendant said he never agreed to go mobbing but admitted that he
remained in the car. Defendant said Zayas always had the gun, but defendant claimed he
did not know about the gun before the shooting.
Detective Zaragoza asked defendant if going mobbing meant they were going to
look for southerners. Defendant said, “Not necessarily,” and that it could mean that they
were going to look for someone or just drive around and cruise. Defendant denied that
the Surenos were their targets.
Defendant said Zayas started firing the gun. Defendant said no one else got out of
the car. Defendant thought Zayas fired five or six shots. Defendant said everyone in the
car was stunned that Zayas had a gun and fired the shots.
Defendant said that after Zayas finished shooting, Zayas got back in the car and
said, “ ‘[L]et’s get the f*** out of here,’ ” and “ ‘I got ‘em, I got ‘em.’ ” Josh took off for
Orosi, but the deputies stopped them.
6 As we will explain post, the prosecution’s gang expert testified that “mobbing”
meant “to get together” in a vehicle, look for a rival gang member, and take action
against that person.
8.
Detective Zaragoza asked defendant if he was a Norteno. Defendant said no.
Defendant said he lived in Cutler, that there were a lot of northerners, and some were his
friends. Defendant said some people were gangbangers, and he “kicked it” with them,
but claimed he was not in a gang.
Defendant said he “kicked it” with Santos, Josh, his brothers and cousins.
Defendant knew Santos and Josh were northerners. Defendant was asked: “Do you kick
it with northerners?” Defendant nodded his head, “[Y]es.” Defendant was asked,
“[W]hich clique?” Defendant said: “I was never in a clique. I just hung around with
them.”
Defendant said he hung around with Santos, Josh, and with “BPC.” Defendant
was asked, “[H]ow long you been kicking it with them?” Defendant replied: “A long
time … seven or eight years.”
“Q. So you kick it with the BPC, the northerners?
“A. Yeah.”
Defendant was repeatedly asked if he knew Zayas had a gun before the shooting.
Defendant eventually admitted that “we knew” Zayas had a gun before the shooting,
because Zayas picked up the gun at his house. Defendant explained they left the
cemetery and drove to Zayas’s house. Zayas went into the house and then returned to
Josh’s car. Defendant said when Zayas got into the car, he showed them that he had a
gun, and it was a chrome .22- or .25-caliber revolver. Defendant admitted he had seen
Zayas with a gun on other occasions. Defendant said they carried guns to feel safe from
the southerners.
Defendant repeatedly denied that he touched the gun. When asked if his
fingerprints could be on the gun, defendant said they might be. Defendant then added
there was a “big possibility” that he touched the gun, but he could not remember since he
was drunk that night.
9.
Defendant admitted that southerners had once shot at him. He knew that
southerners had shot Josh a couple of times. Defendant also knew that Zayas’s brother
had been murdered by a southerner in a gang-related shooting.
As the interview continued, defendant was asked if anyone in the car said they
should look for southerners. Defendant said that Zayas said, “ ‘[H]ey, f***, let’s go look
for some scraps.’ ” Defendant said they “ran into those guys,” and Zayas said they were
“scraps.” Defendant admitted that he said, “[F]*** ‘em” when he saw the two men on
the street.
Defendant said Zayas got out of the car, fired the shots, got back into the car, and
said, “ ‘I got ‘em, I got ‘em.’ ” Defendant said Zayas meant he got the southerner he had
shot. Josh and Santos said, “ ‘[L]et’s jam.’ ” Defendant said, “Let’s get the f*** out of
here.”
Defendant was asked what they talked about in the car before the traffic stop.
Defendant said they were all “tripping out.” Zayas was scared, and he wanted defendant
to run away with the gun. Defendant said no because he didn’t shoot the gun.
“Q. You’ve been a northerner for what, eight years…?
“A. Not anymore since today. F*** that. I don’t need this shit, man.”
Defendant said he wanted “witness protection” and did not want to be involved
with gangs.
PROCEDURAL HISTORY
Defendant, Josh, Santos, and Zayas were jointly charged with count I, conspiracy
to commit murder (§§ 182, subd. (a)(1) & 187); count II, first degree murder of Bello
(§ 187, subd. (a)), with a special circumstance that the offense was committed by active
10.
participants in a criminal street gang (§ 190.2, subd. (a)(22)); and count III, attempted
murder of the second man (§§ 664/187, subd. (a)).7
As to all counts, it was alleged that a principal personally and intentionally
discharged a firearm which proximately caused death (§ 12022.53, subds. (d), (e)(1)); and
the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(C)). As to count II, murder, it was separately alleged that codefendant Zayas
personally used a firearm (§ 12022.5, subd. (a)(1)).
Defendant pleaded not guilty. The court granted the prosecutor’s motions to sever
defendant’s trial from the three codefendants, and to dismiss count III, attempted murder,
against defendant.
After a separate jury trial, Zayas was found not guilty of first degree murder, and
guilty of the lesser included offense of second degree murder with a firearm and gang
enhancements. He was found not guilty of attempted murder. Zayas was sentenced to 40
years to life. (People v. Zayas (F062556) filed 6/21/2012)
Santos pleaded no contest to voluntary manslaughter and the gang enhancement,
with an indicated sentence of 16 to 21 years in prison. The record is silent as to the
disposition of the charges against Josh.
Defendant was tried separately for count I, conspiracy to commit murder, and
count II, first degree murder with a special circumstance, and the special allegations.
Santos testified for the prosecution at defendant’s jury trial. Santos stated that he was
concerned for his safety and considered a “rat” by the Nortenos because he was testifying
against defendant.
7While defendant was charged with murder with a special circumstance, the
prosecutor announced that she would not seek the death penalty.
11.
SANTOS’S TRIAL TESTIMONY
Santos testified that he had been a member of the North Side Cutler Norteno gang,
but he was no longer in a gang. The Nortenos lived in Cutler while the Surenos, their
rivals, lived in Orosi. Santos had an “X-4” tattoo on his arm which meant 14, the number
claimed by the Nortenos.
Santos testified he did not know if his brother, Josh, had also been a member of
the Nortenos, but admitted that Josh hung out with him, and he was involved with the
Nortenos. Santos and Josh had been shot at on previous occasions by members of the
Sureno gang. Santos testified that Zayas was also a member of the Nortenos.
Santos had known defendant for 10 years. They worked together and frequently
drank and went to parties together. Santos did not know if defendant was involved with a
gang. Santos did not talk about his own gang status with defendant, but “everybody
knew that I was” in the gang.
The cemetery
Santos testified that on the morning of August 28, 2009, he and his wife went to
the cemetery in Sultana to visit the grave of his younger brother, who had died in a car
accident. Josh arrived separately in his Honda. Santos’s wife left, and Santos and Josh
remained at the cemetery. Santos and Josh drank beer and cried about their brother.
While Santos was at the cemetery, he received a call from Zayas. Santos told
Zayas where they were. Around 1:00 p.m., Zayas arrived at the cemetery. Zayas’s older
brother was also buried there. Santos knew that Zayas’s brother had been shot and killed
by South Siders.
Santos testified they called defendant while they were still at the cemetery,
because they wanted to arrange a barbeque. They left the cemetery, drove to defendant’s
house, and picked him up. They bought more beer, and then returned to the cemetery.
Santos testified the four men stayed at the cemetery and drank beer. Zayas was
angry and upset as he thought about his brother.
12.
Zayas retrieves the gun
Santos testified that around 6:00 p.m., they left the cemetery in Josh’s Honda.
Josh was driving, defendant was in the front seat, and Santos and Zayas were in the back
seat.
Josh drove the group to Zayas’s house in Orosi so Zayas could get some money
for food. Zayas went into the house while the other men stayed in the car and continued
to drink.
Santos testified that when Zayas returned to the car, he had a revolver in his
waistband. Santos was surprised to see the gun. Josh briefly took the gun from Zayas to
make sure it was not loaded. Santos and defendant did not hold the gun.
Santos testified that Zayas said, “ ‘Let’s go for a ride,’ ” and used the term
“mobbing.” Santos believed that Zayas was “mad, looking for trouble” with South
Siders. Santos knew the term “Scrap hunting” meant mobbing with a gun. Santos
testified that everyone in the car knew Zayas had a gun. Santos thought Zayas was just
looking for a fight. Santos testified none of them tried to get out of the car. Josh
continued driving, and they all agreed to drive to Orosi to go mobbing.
The shooting
Santos testified they drove around Orosi looking for Scraps. Zayas saw “two
guys” wearing blue hats who were walking on Avenue 416. Josh drove past the two men
and Zayas yelled something at them. Defendant swore at the two men. The two men
yelled something back, and they threw something at Zayas.
Santos testified Josh turned the car around and drove up to the two men. Zayas
got out of the car and fired shots at them. Santos testified it happened very quickly.
Santos, Josh, and defendant stayed in the car. Zayas fired five or six rounds. Santos
could not tell if he hit anyone.
Zayas got back into the car and said, “ ‘I think I got one.’ ” Santos testified that he
had no idea that Zayas was going to shoot anyone. Josh and defendant were shocked
13.
about what Zayas did. Santos testified that Zayas shot a Sureno because he was mad that
a Sureno killed his brother.
Josh immediately drove away from Orosi. No one in the car said anything. The
deputies pursued them. When the deputies appeared behind their car, Zayas looked
scared and told defendant to take the gun and run away. Defendant refused and Josh
stopped the car.
Santos testified that after he was arrested, he was placed in a patrol car with
defendant. Santos told defendant that he was going to claim he was drunk. Defendant
did not say anything. Santos testified that when he was initially interviewed, he claimed
he was drunk and passed out. However, he later told the detectives what happened in the
car.
GANG EXPERT’S TESTIMONY
Tulare County Sheriff’s Detective Steven Sanchez was assigned the North County
Gang Violence Special Unit. He testified the Norteno gang claimed the color red and the
number 14. The letters “TC” were a local Norteno tattoo which meant Tulare County.
Other Norteno tattoos included “X4” for 14, and the Huelga bird.
The Norteno subset gangs in Tulare County included the Brown Pride Catela
(BPC), North Side Catela, and East Side Orosi.8 There were over 150 Norteno gang
members in the Cutler-Orosi area. The primary activities of the Norteno gang included
homicide, attempted homicide, robbery, carjacking, and felony graffiti. One of the goals
of the gang was to instill fear of retaliation.
The Surenos were the rivals of the Nortenos and claimed the color blue and the
number 13. A derogatory name for the Surenos was Scraps.
8 Another officer testified that Brown Pride Catela was the predominant Norteno
gang in the area.
14.
Detective Sanchez testified that gang members gain respect by being feared in the
community. When they are disrespected, they will be seen as weak unless they respond.
They could be disrespected by rival gang members yelling their names or tagging graffiti
in their turf. Gang members will typically commit offenses in front of fellow gang
members. They will achieve greater status within their gang if they commit violent
crimes. It is a sign of betrayal for a gang member to testify against another gang
member.
“Mobbing”
Detective Sanchez testified there was a Norteno turf war in the Cutler-Orosi area.
Surenos claimed Orosi while Nortenos claimed Cutler, and the two towns were separated
by one street. The violence between the two gangs had escalated within the past five
years because each gang was trying to claim the other city as their turf.
Sanchez explained that “mobbing” meant “to get together” in a vehicle, look for a
rival gang member, and take action against that person. It was common for gang
members to go mobbing and look for their rivals. Detective Sanchez did not know if it
was common for gang members to have a weapon while they were mobbing. “Scrap
hunting” meant that a Norteno was looking for a rival Sureno.
Predicate offenses
Detective Sanchez testified about two predicate offenses involving members of the
Norteno gang in Tulare County. Robert Clevenger and Enrique Gonzalez, members of
BPC, were convicted of committing an assault with a deadly weapon in May 2007. They
were driving around in the Orosi area, confronted two Surenos, and Gonzalez opened fire
on the Surenos. The participants in the other predicate offense were Javier Sahagun,
Humberto Melchor, and George Lua, also members of BPC, who were convicted of
committing an assault with a deadly weapon in October 2008. They had been in a car
which opened fire on a Sureno in Cutler.
15.
Gang status
Detective Sanchez testified that in order to validate a person as a gang member,
law enforcement officers rely on certain criteria. Based on such criteria, Zayas was a
validated member of the Norteno gang: he had previously associated himself with the
Nortenos when he was booked into jail, he had gang-related tattoos, and gang-related
items were found at his house. Josh was also a validated Norteno and member of BPC.
Josh often associated with Zayas. Josh was wearing Norteno clothing and colors when he
was stopped after the shooting, he had gang-related tattoos, and gang indicia was found at
his house. Santos was a validated gang member and admitted being a member of North
Side Catela.
Detective Sanchez testified that defendant did not possess any gang indicia when
he was arrested in this case. The officers did not find any weapons or gang-related attire
when they searched defendant’s house. Defendant has a tattoo of his last name on his
leg. It was common for gang subjects to have such tattoos, but Sanchez conceded it was
not a gang-related tattoo.
Detective Sanchez conceded that as of the day before the homicide in this case,
defendant did not meet any of the criteria used to validate a person as a gang member.
He was unable to locate any field interview or crime reports about defendant.
However, Sanchez testified that someone could be validated as a gang member by
meeting the gang criteria based on one actual crime committed by that person. Sanchez
believed defendant was a validated Norteno and part of BPC as of the date of the
shooting because he admitted gang membership during his interview with Detective
Zaragoza; he associated with gang members; he was involved in a gang-related crime;
and he possessed gang indicia, gang writings, and gang photographs at his house.
When defendant was booked in this case, defendant said he did not have any
known enemies. However, the intake officer who interviewed defendant reported that
16.
defendant said he was a Norteno dropout, and had known enemies in custody from both
southern and northern sides.
Detective Sanchez testified that when defendant was interviewed by the officers
about the homicide, he admitted that he had been associated with BPC for approximately
eight years. He never claimed to be a dropout. Defendant also admitted that he “kicked
it” with “ ‘these guys,’ ” identified as Santos, Josh, and their cousins. Defendant told the
detectives that Zayas picked up the gun from his house, that it was Zayas’s idea to go
mobbing, and defendant knew they were going to go out and “look for some Scraps.”
Defendant said that he saw the two men walking down the street, and he thought they
were Surenos. Defendant admitted that he said, “ ‘[F]*** ‘em.’ ” Detective Sanchez
testified such a phrase meant to assault the rivals.
Sanchez testified the items found in defendant’s bedroom were also indicative of
Norteno gang membership, including the photograph with “BPC” written on it, along
with the words, “ ‘gang that all his Scraps belong 6 feet under.’ ” Some of the people in
the photograph were “X-ed” out in blue ink. Sanchez testified it was common to find
yearbooks which belonged to gang members, where they had crossed out the pictures of
rival gang members. Sanchez admitted that he did not know if defendant wrote the gang
language on the photograph. The Blackberrry cell phone, which belonged to defendant’s
brother, contained a photograph that depicted defendant with six individuals, posing with
a marijuana plant. Some of the subjects were flashing Norteno gang signs. However,
defendant was not flashing a gang sign.
Hypothetical question
The prosecutor asked Detective Sanchez a hypothetical question about four
Nortenos who visit the cemetery and talk about a relative who was killed by a Surenos.
They decide to go mobbing, and the surviving relative picks up his gun. They drive
around and see two guys wearing Sureno blue. The Nortenos shout out gang slurs, the
two guys in blue yell something in return. The driver makes a U-turn and pulls up to
17.
where the two guys are walking. The gunman shoots at both men in blue, and he kills
one of them.
In response, Detective Sanchez testified that such a high-profile assault would be
committed for the gang’s benefit, and boost the gang members’ status within the gang.
“Also, it continues the war on the streets between the North and South, especially in the
Cutler-Orosi area[,]” and this one incident would “fuel ten other incidents that happen in
the future because of this. It’s going to continue the gang war. It also sends a message to
the rivals that one gang is particularly responsible for doing the shooting.”
DEFENSE EVIDENCE
Scott LaFleur had been defendant’s high school English teacher in the late 1990s.
LaFleur described defendant as a great kid, and he was shocked to hear about the charges
against him.
Manuel Lopez lived next to defendant in Cutler and had known him for 15 years.
Lopez described defendant as a quiet person who was not violent. Lopez was also
surprised when he heard about this case. Lopez never knew defendant to be involved
with gangs.
Defendant’s trial testimony
Defendant testified that he hung around with Josh and Santos. He knew they were
Nortenos, but testified that they had a social relationship. On the day of the shooting,
they picked him up and drove to the cemetery where they drank beer and smoked
marijuana. Defendant said he did not know Zayas’s brother, but knew he had been shot
by rival gang members.
Defendant testified that they drove to Zayas’s house to pick up money for a
barbeque. Zayas returned to the car and showed them a gun. Josh took the gun away
from Zayas to make sure it was not loaded. Defendant became concerned and asked Josh
to take him home. However, defendant did not try to leave.
18.
Defendant testified that “mobbing” meant drinking, smoking weed, and driving
slowly. He admitted that mobbing could lead to trouble. Defendant saw the two men in
blue walking down the street. Defendant pretended not to see them, but Zayas started
yelling and exchanging words with them. Defendant told Josh to keep driving, but he did
not tell Josh to pull over and let him out.
Defendant testified Josh turned around and drove up to the two men. Zayas got
out of the car and started shooting. Defendant never thought Zayas would shoot anyone,
and he was shocked when Zayas opened fire. After the shooting, defendant said, “ ‘Let’s
get the f*** out of here[,]’ ” because he had nothing to do with it. Defendant did not
want to wait for the police to arrive, because he was afraid that Zayas might believe he
was a “rat” and kill him too.
Defendant testified that he was not completely honest when he was initially
interviewed in this case. He was shocked, sick, and afraid, and he was trying to protect
Zayas. Defendant felt scared and pressured by the gang investigators. Defendant
decided to ask for the second interview to clear things up.
Defendant admitted that he lied during his interviews with the officers. During
one of the interviews, he said that he might have touched the gun in the car. He only said
that because he felt pressured by the officers. Defendant testified that he never touched
the gun. Defendant admitted that he also told the officers that he said, “ ‘[F]*** em,’ ”
when he saw the two men walking on the street. However, defendant testified he never
actually said that when he was in the car.
Defendant knew Josh, Santos, and Zayas were Nortenos, and he got into the car
that day with three known Nortenos. Defendant admitted that he said he “kicked it” with
Josh and Santos, but he never said he was a Norteno or in BPC, and he had never been in
a gang.
19.
Defendant testified the school photograph found in his bedroom belonged to a
friend, and someone else wrote on the picture. Defendant claimed that the officers
“labeled” him as a Norteno dropout.
Verdicts and sentence
Defendant was convicted of count I, conspiracy to commit murder. In count II, he
was found not guilty of first degree murder, but guilty of second degree murder as a
lesser included offense. The jury found the firearm and gang enhancements true. He was
sentenced to 50 years to life.
DISCUSSION
I. Instructions for conspiracy to commit murder
Defendant contends his conviction in count I for conspiracy to commit murder
must be reversed because the conspiracy instructions referred the jury back to the murder
instructions, and the murder instructions included an implied malice theory. Defendant
correctly notes that a conviction for conspiracy to commit murder must be based on
express malice and cannot be based on an implied malice theory. Defendant argues that
the instructions incorrectly permitted the jury to convict him of conspiracy based on an
implied malice theory, and the instructional error was prejudicial. We agree and must
reverse his conviction in count I.
A. Murder
“Murder is the unlawful killing of a human being ... with malice aforethought.”
(§ 187, subd. (a).) Murder is divided into first and second degree murder. (§ 189; People
v. Chun (2009)

45 Cal.4th 1172

, 1181.) First degree murder is a “willful, deliberate, and
premeditated killing.” (§ 189.)
“Second degree murder is defined as the unlawful killing of a human being with
malice aforethought, but without the additional elements – i.e., willfulness,
premeditation, and deliberation – that would support a conviction of first degree murder.
[Citations.]” (People v. Nieto Benitez (1992)

4 Cal.4th 91

, 102, italics in original; People
20.
v. Swain (1996)

12 Cal.4th 593

, 600 (Swain).) There are three theories of second degree
murder: unpremeditated murder with express malice; implied malice murder; and second
degree felony murder. (Swain,

P. v. Garcia CA5 ( 2013 )

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