People v. Mejico CA2/2 ( 2022 )

Filed 7/27/22 P. v. Mejico CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311150
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA033116)
v.
STEVE ERENESTO MEJICO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Juan C. Dominguez, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steve Erenesto Mejico (defendant)
appeals from the order denying his petition filed pursuant to
Penal Code former section 1170.95 (now § 1172.6).1 Defendant
contends that the trial court erred by treating the evidentiary
hearing held pursuant to former section 1170.95, subdivision (d)
as a trial de novo, that the trial court was collaterally estopped
from finding that he could be convicted of first degree murder
under the law as amended after his conviction of second degree
murder, that this court should apply a de novo review to the
sufficiency of the evidence, and that substantial evidence did not
support the trial court’s finding that he harbored malice. Finding
no merit to defendant’s contentions, we affirm the order denying
defendant’s petition.
BACKGROUND
In 1997 defendant and his codefendant Glenn Tracchia, Jr.,
were each convicted by a jury of the second degree murder of
Robert Imperial with true findings that a principal was armed
with a firearm and that the murder was committed for the
benefit of, at the direction of, and in association with a criminal
street gang with the specific intent to promote and assist in
criminal conduct by gang members. Defendant was sentenced to
16 years to life in prison. We affirmed the judgment in People v.
Tracchia (B117379, Oct. 19, 1998) (nonpub. opn.).
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) All further statutory references are to the Penal
Code, unless otherwise indicated.
2
Former section 1170.95
In 2018, the Legislature passed Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Senate Bill 1437), which amended sections 188
and 189, the laws pertaining to felony murder and murder under
the natural and probable consequences doctrine. “To amend the
natural and probable consequences doctrine, Senate Bill 1437
added section 188, subdivision (a)(3) . . . : ‘Except [for felony-
murder liability] as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.’”
(People v. Gentile (2020) 10 Cal.5th 830, 842-843.) This
amendment effectively eliminated murder based upon the
natural and probable consequences doctrine. (Id. at p. 850.)
The Legislature added former section 1170.95 (now
§ 1172.6), which provides a procedure for those convicted of
murder to retroactively seek relief if they could not be convicted
under sections 188 and 189 as amended effective January 1,
2019. (Stats. 2022, ch. 58, § 10; Stats. 2018, ch. 1015; People v.
Lewis (2021) 11 Cal.5th 952, 957.) If presented with a facially
adequate petition, the court appoints counsel and then
determines if the petitioner made a prima facie case for relief.
(Former § 1170.95, subd. (c).) If so, the court must issue an order
to show cause why relief should not be granted, as was done in
this case, and an evidentiary hearing is held. (Ibid.; Lewis, at
p. 971.) At the evidentiary hearing the prosecution must prove
beyond a reasonable doubt that the petitioner is guilty of murder,
attempted murder, or manslaughter under amended sections 188
and 189. (Former § 1170.95, subd. (d)(3).) Both the prosecution
and the petitioner are permitted to “offer new or additional
3
evidence.” (Ibid.) The trial court acts as an independent
factfinder and determines whether the prosecution has met its
burden. (People v. Ramirez (2021) 71 Cal.App.5th 970, 984.)
Defendant’s petition
In March 2020 defendant filed a petition for resentencing
pursuant to former section 1170.95. The trial court found
defendant had made a prima facie case for relief upon showing
that at his trial the jury was instructed on the natural and
probable consequences doctrine, which had been argued to the
jury. An order to show cause issued and an evidentiary hearing
was held pursuant to former section 1170.95, subdivision (d).
Relevant 1997 trial evidence
The parties stipulated at trial that the Dogpatch gang is a
criminal street gang. The prosecution’s gang expert, Sheriff’s
Deputy Tommy Harris, testified to his familiarity with the
Dogpatch gang and that the gang committed crimes such as
robberies, burglaries, narcotics offenses, and assaults. He added
that crimes against other gang members were usually assaultive.
David Valdez, who was also convicted of Imperial’s murder, was a
self-admitted member of the gang. Defendant and Tracchia were
also Dogpatch gang members. Deputy Harris testified that in
gang culture respect is important, and if the member of one gang
disrespects another gang or one of its members, it can precipitate
a rivalry.2 It is common when a gang or one of its members is
disrespected that other members of that gang will try to regain
respect by fighting with members of the rival gang, which leads
to greater violence. Regaining respect can range from “fighting or
2 Deputy Harris explained that the question, “Where are you
from?” is intended to mean “what gang do you belong to?”
4
jumping somebody, all the way to murder.” It is also common for
gang members to carry weapons, mostly handguns.
On July 15, 1996, Imperial, his cousin Thomas Fierro and
his cousin’s friend Tom Bushnell went to Valdez’s house.
Bushnell was a tattoo artist and Valdez was a client. Neither
Bushnell nor Fierro belonged to a gang. When Bushnell
introduced his companions, Valdez said to Imperial, “This is
Dogpatch. Where are you from?” Imperial replied that he was
from La Mirada, meaning he was from the Varrio La Mirada
gang. After drinking beer and smoking marijuana outside the
house for approximately 45 minutes, they went inside. At some
point Valdez called Bushnell into another room and asked
whether Fierro and Imperial were both from La Mirada.
Bushnell said that only Imperial was from La Mirada and offered
to leave if there was a problem. Valdez told him not to worry, to
“go ahead and kick back.” About a half hour later first Valdez
telephoned someone and then Imperial made a call, after which
Valdez again used the telephone.
About half hour later, a car arrived. Valdez opened the
door, and defendant, Tracchia, and an unidentified man entered
the house. They introduced themselves to Fierro and Bushnell
and identified themselves as Dogpatch gang members. Imperial
told them he was “Porky” from La Mirada. Valdez, defendant,
and the unidentified man went into the kitchen and spoke among
themselves, while Tracchia sat on the couch in the living room
next to Imperial and Fierro.
When Valdez, defendant, and the unidentified man came
out of the kitchen, defendant asked Imperial, “Where are you
from again?” When Imperial again said, “Porky from La Mirada,”
defendant replied, “Oh, we have to talk,” or “Oh. Oh. We have to
5
talk.” Defendant, Tracchia, Valdez, and the unidentified man
positioned themselves two in front of Imperial and two behind
him and “escorted” him outside to the front yard. One of them
tried to shut the door behind them, but Fierro kept it open and
sat on the corner of the couch so that he could watch as they
stood in a semicircle surrounding Imperial for approximately 20
minutes. Defendant, Tracchia, Valdez, and the unidentified man
appeared to be trying to explain something to Imperial, and on
about four occasions the four men would huddle together and
talk, then return to Imperial. At some point Fierro became
concerned because of the look on Imperial’s face, and he and
Bushnell went outside to ask what was happening. Imperial said
not to worry, that it was “just bull shit.” At Imperial’s request,
Fierro and Bushnell went back inside but kept the door open.
Valdez came inside after about 10 minutes and went into
his bedroom. Three to five minutes later he came out with a
thick jacket and returned outside. Defendant and Tracchia,
followed by Imperial and then Valdez, walked toward a gray or
blue car that had not been there when Fierro had arrived at the
house. The car was later identified as the blue Buick Regal
owned by Tracchia’s grandmother, which Tracchia regularly
drove. Fierro ran outside and asked, “[W]here are you going?”
Imperial told Fierro to go back inside and Valdez said they were
going to buy beer and marijuana. Imperial got into the back seat
of the car with Valdez, while defendant and Tracchia got into the
front seat, and the car sped away. The unidentified man
remained behind and appeared to be watching Fierro and
Bushnell.
About 10:00 or 10:30 that evening, Eduardo Segoviano was
walking down Wing Lane when he heard loud, angry voices and
6
saw two men pushing Imperial against a fence near a flood
control channel. One man was pushing Imperial and the other
striking him. Imperial broke away and ran in Segoviano’s
direction, as the assailants chased him, and fired a gun.
Segoviano hid in a yard and heard more gunshots in quick
succession. He saw flashes, but did not see the gun or which man
had the gun. After the gunfire stopped, Segoviano heard tires
spinning and the sound of a car driving away. When Segoviano
emerged from hiding, the men were gone. He then saw Imperial
lying in a yard.3
Another witness was in his nearby driveway when he heard
a sound “like a backfire or a gunshot.” When he looked in the
direction of the sound, he saw a Buick Regal in the middle of the
intersection with its headlights off. The witness heard two more
gunshots before he saw the car speed away.
About 15 to 20 minutes after defendant and his companions
had left with Imperial, the Buick Regal screeched to a stop in
front of Valdez’s house. (B117379 1 RT 96-97, 160)~ As Valdez
got out, the unidentified man ran outside and got into the car,
which sped away with its headlights off. Valdez hurried into the
house sweating and looking shocked. He went to the bathroom,
washed his face and hands, before going into his bedroom, then to
his roommate’s bedroom. When he came out he told everyone to
get out. Both Fierro and Bushnell asked several times where
3 Imperial was pronounced dead at the scene. He died from a
single gunshot wound that penetrated his back, perforated a
lung, and pierced his heart before lodging in the muscles of his
chest. The path of the bullet was consistent with being shot
while Imperial was running away.
7
Imperial was, but Valdez kept telling everyone to leave without
answering them.
Fierro and Bushnell went outside where they saw Valdez
come out, go to the side of the garage, and retrieve something
wrapped in a piece of clothing. Bushnell approached and saw
that Valdez was carrying a gun wrapped in a red rag. Valdez
ordered Bushnell to “just fucking leave” and took the gun inside
the house.
The next morning Valdez telephoned Bushnell and said,
“[H]e’s gone, huh?” Bushnell asked him, “[W]hy did you have to
kill him?” Valdez replied that he had to shoot Imperial because
“La Mirada was talking smut about Dogpatch.”
During a search of Valdez’s house, a .38-caliber revolver
and ammunition were recovered from Valdez’s bedroom. An
expended bullet found at the scene of the shooting and the bullet
recovered from Imperial’s body were determined to have been
fired by Valdez’s gun. Prior to defendant’s trial Valdez pled
guilty to second degree murder. Valdez claimed defendant and
Tracchia got out of the car with Imperial, and he remained in the
car, where he heard a gunshot before defendant and Tracchia
returned to the car without Imperial.
The trial court’s findings
The trial court concluded that the evidence showed beyond
a reasonable doubt that defendant acted with express or implied
malice:
“Although it is possible that the only thing
[defendant] thought was going to take place at this
remote location was the assault of [Imperial], said
interpretation of the circumstantial evidence is not
reasonable for the following reasons.
8
“Upon arriving at the Valdez residence,
[Imperial] was immediately challenged as to his gang
affiliation. In response to Valdez’ question he stated
he was from the ‘La Mirada’ street gang. Thereafter
two phone calls followed, with [defendant] and the
other two arriving about an hour later. They went
into the kitchen and spoke. [Defendant] again asked
[Imperial] what gang he claimed, and after [Imperial]
responded, he stated ‘Oh . . . we have to talk homey.’
The discussion moved outside, and it appeared that
[Imperial] was trying to explain something and had a
concerned look on his face. During the discussion the
gentlemen huddled together and spoke amongst
themselves away from [Imperial].
“Immediately thereafter, Valdez went inside
the house and came out holding a jacket. The
circumstantial evidence points strongly to the fact
that Valdez went to retrieve the gun. They then
drove [Imperial] to a remote location where he was
killed. Valdez told Tom Bushnell shortly after the
shooting that he had killed [Imperial] because he had
been ‘talking smut about Dogpatch’.
“At trial Sgt. Harris testified as follows:
“Q: ‘How is disrespect by one gang or one gang
member or another gang towards another gang
member answered by the gang or gang member
disrespected?’ . . .
“A: ‘Well, they’re going to go and try to regain
that respect. It could be as little as fighting or
jumping somebody, all the way to murder’.
“There appears to be no logical reason for
taking [Imperial] to a remote location if the intent
was simply to assault him. They were at Valdez’
private residence and the assault could have taken
9
place right there and then. Furthermore, there
appears to be no logical reason for the various
separate discussions that took place prior to driving
[Imperial] from the residence. Finally, [Imperial]
was outnumbered 4 to 1. There appears to be no
logical reason to retrieve a gun if the intent was only
to assault. The circumstantial evidence strongly
points to the conclusion that during the course of the
various discussions the decision was made to kill
[Imperial]. That explains why, prior to driving away
from the location, Valdez went inside the residence to
retrieve the gun.
“As the prosecutor stated during her argument
at the eligibility hearing ‘[Imperial] was never going
to come back alive once he got into the car with
[defendant] and the others’. The court agrees with
this conclusion.
“Lastly, [defendant] argued that the evidence
established that only two of the individuals exited the
car and chased [Imperial]. The other individual,
which could have been [defendant], remained within
the car and may not have been aware that the other
two were going to kill [Imperial]. The court disagrees
with this interpretation of the facts. The
circumstantial evidence strongly points to the
conclusion that the decision to kill [Imperial] was
made prior to [his] entering the car and that by
virtue of the various discussions, all were aware what
was going to happen to [him]. Additionally, the
evidence established that the vehicle belonged to
Tracchia’s grandmother and that he often drove the
vehicle. Therefore, it would appear reasonable that it
was Tracchia who remained with the car and that it
was Valdez and [defendant] who chased [Imperial]
and killed [him].”
10
The petition was denied on January 29, 2021. Defendant
filed a timely notice of appeal. We affirm the order.
DISCUSSION
I. Collateral estoppel and double jeopardy
Defendant initially contends that “by approaching the
evidentiary hearing as a trial de novo and basing its denial of
[defendant’s] resentencing petition on a theory of the case
previously rejected by the jury at trial, the superior court
contravened the terms of [former] section 1170.95 and violated
[defendant’s] state and federal constitutional rights to due
process of law.” (Capitalization and boldface omitted.) We glean
from the ensuing argument that defendant takes issue with the
trial court’s independent review of the evidence and its conclusion
that defendant would be guilty of first degree murder under the
amended murder statutes. Defendant argues that by finding
defendant guilty of second degree murder, the jury necessarily
found that defendant did not harbor an intent to kill; thus the
trial court was collaterally estopped to find that defendant had
an intent to kill, which finding was barred by the prohibition
against double jeopardy.
Defendant’s characterization of the proceedings as a trial
de novo is an exaggeration, and defendant remains convicted of
second, not first degree murder. “‘[I]t is the [trial] court’s
responsibility to act as independent fact finder and determine
whether the evidence establishes a petitioner would be guilty of
murder under amended sections 188 and 189 and is thus
ineligible for resentencing under [former] section 1170.95,
subdivision (d)(3).’” (People v. Ramirez, supra, 71 Cal.App.5th at
p. 984.) In addition, “[a]n evidentiary hearing under [former]
11
section 1170.95 . . . does not implicate double jeopardy because
section 1170.95 ‘involves a resentencing procedure, not a new
prosecution.’ [Citation.] The retroactive relief provided by
[former] section 1170.95 is a legislative ‘act of lenity’ intended to
give defendants serving otherwise final sentences the benefit of
ameliorative changes to applicable criminal laws and does not
result in a new trial or increased punishment that could
implicate the double jeopardy clause.” (People v. Hernandez
(2021) 60 Cal.App.5th 94, 111.)
We need not address defendant’s collateral estoppel
challenge to the first degree murder finding, as the trial court
also found the prosecutor had proven that defendant could still be
convicted of second degree murder after the amendments to the
murder laws. Second degree implied malice murder was not
eliminated by Senate Bill 1437. (People v. Gentile, supra, 10
Cal.5th at p. 850.) “Though [Senate Bill 1437] abolished the
natural and probable consequences doctrine, it maintained the
viability of murder convictions based on implied malice, and the
definition of implied malice remains unchanged. (§ 188.)”
(People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements).)
One harbors implied malice when committing an act that is
dangerous to life, knowing that it endangers the life of another,
and does so with a conscious disregard for life. (People v. Nieto
Benitez (1992) 4 Cal.4th 91, 106-107.) Thus “notwithstanding
Senate Bill 1437’s elimination of natural and probable
consequences liability for second degree murder, an aider and
abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
her conduct endangers the life of another and acts with conscious
disregard for life.” (People v. Gentile, supra, at p. 850.)
12
II. Substantial evidence of second degree murder
A. Standard of review
Defendant contends that substantial evidence did not
support the trial court’s second degree murder finding. Relying
on People v. Vivar (2021) 11 Cal.5th 510 (Vivar), defendant
contends that because the trial court’s factual determinations
were solely based on the cold record, this court should conduct an
independent review, without giving deference to the trial court’s
findings as is usual in a substantial evidence review. We
disagree. Vivar is an inapt comparison as it did not involve
former section 1170.95, but a ruling on whether there had been a
sufficient showing of prejudice to vacate a conviction by those
facing negative immigration consequences—a ruling that was
predominantly a question of law. (Vivar, at pp. 517, 524.)4 Here,
the issue is whether defendant knew his conduct endangered the
life of another and acted with conscious disregard for life. (See
People v. Gentile, supra, 10 Cal.5th at p. 850.) “‘Evidence of a
defendant’s state of mind is almost inevitably
circumstantial . . . .’” (People v. Nguyen (2015) 61 Cal.4th 1015,
1055.) It is thus “a question of fact based upon reasonable
4 Moreover, as noted in Clements: “[T]he Supreme Court
emphasized in Vivar that the ‘embrace of independent review in
this context is a product of multiple factors with special relevance
here: the history of section 1473.7, the interests at stake in a
section 1473.7 motion, the type of evidence on which a section
1473.7 ruling is likely to be based, and the relative competence of
trial courts and appellate courts to assess that evidence.’ (Vivar,
supra, 11 Cal.5th at p. 527.) The same factors don’t support
applying independent review in the context of reviewing a trial
judge’s ruling after a full hearing under [former] section 1170.95
subdivision (d)(3).” (Clements, supra, 75 Cal.App.5th at p. 302.)
13
inferences.” (People v. Hewlett (1951) 108 Cal.App.2d 358, 377.)
As the question presented is one of fact, we decline to apply a de
novo review.
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the [trier of fact] might have
drawn from the circumstantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 396.)
“[B]ecause ‘we must begin with the presumption that the
evidence . . . was sufficient,’ it is defendant, as the appellant, who
‘bears the burden of convincing us otherwise.’” (People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial
evidence ground “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conclusion of the trier of fact].’” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
“[S]econd degree murder . . . is ‘the unlawful killing of a
human being with malice aforethought but without the
additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree
murder.’ [Citation.] Malice may be either express (as when a
defendant manifests a deliberate intention to take away the life
14
of a fellow creature) or implied. [Citation.] ‘Malice is implied
when the killing is proximately caused by “‘an act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’” [Citation.] In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the
life of another . . . .’” (People v. Cravens (2012) 53 Cal.4th 500,
507.)
Thus defendant here must show that under no hypothesis
was there sufficient evidence to support a finding that he knew
his conduct endangered Imperial’s life and acted with conscious
disregard for that life. (See People v. Cravens, supra, 53 Cal.4th
at p. 507.)
B. Defendant’s contentions
Defendant contends that there was no evidence that he
harbored express or implied malice. As we find ample evidence to
support a finding of implied malice, we do not reach defendant’s
arguments regarding evidence of intent to kill. (See People v.
Letner and Tobin (2010) 50 Cal.4th 99, 168.)
With regard to implied malice, defendant contends that the
evidence failed to establish that he engaged in conduct dangerous
to life or that he acted with a conscious disregard for life; and he
contends that the trial court’s findings were based upon mere
speculation. Defendant bases his contention on the claim that
there was no evidence that defendant knew that Valdez was
armed, which he infers from his claim that no one saw Valdez
with a firearm before he left the house, that no one heard
discussions of a plan for Valdez to arm himself, and that no gun
was seen until after Imperial broke away from his assailants and
15
ran. Defendant is dismissive of the gang expert’s testimony that
it was “common” for gang members to carry a gun, arguing that it
was not established that it was common for Dogpatch gang
members to carry guns or that Valdez was known to carry guns.
Defendant argues that even proof of knowledge that Valdez was
armed with a gun would not support an inference of awareness
by defendant that Valdez would use it to murder Imperial.
Defendant concludes there was no credible, reliable or solid
evidence showing his awareness that Valdez was armed or his
intent to aid and abet Valdez in an assault with a firearm.
Defendant seems to equate circumstantial evidence with an
absence of any evidence and conflicting inferences as speculative
unless they favor the defense. In essence, after setting forth
selected trial evidence, defendant has summarized the facts in
the light most favorable to the defense and has drawn only those
inferences that favor him. As stated above, we must view the
record in the light most favorable to the judgment, even when the
judgment rests primarily on circumstantial evidence (People v.
Kraft, supra, 23 Cal.4th at p. 1053), and we “must accept logical
inferences that the [trier of fact] might have drawn from the
circumstantial evidence” (People v. Maury, supra, 30 Cal.4th at
p. 396). “‘“‘If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’”’”
(People v. Stanley (1995) 10 Cal.4th 764, 793.)
Regardless, we do not find defendant’s inferences
reasonable, and we disagree with much of defendant’s version of
the evidence. The evidence overwhelmingly supports the trial
court’s position that an inference that the Dogpatch gang
16
members intended a simple assault was unreasonable. Clearly,
the four Dogpatch gang members took issue with Imperial’s
affiliation with La Mirada. As soon as Imperial arrived, Valdez
learned his gang affiliation was La Mirada. Shortly thereafter
Valdez made a phone call and then another, right after Imperial
made a phone call. Within another half hour defendant,
Tracchia, and the other man, all of whom identified themselves
as Dogpatch gang members, arrived. Imperial again identified
himself as Porky from La Mirada. After Valdez, defendant, and
Tracchia conferred in the kitchen, defendant again asked
Imperial what gang he claimed and observed, “Oh, we have to
talk,” or “Oh. Oh. We have to talk.” The four Dogpatch gang
members then “escorted” Imperial outside, surrounded him, and
appeared to be explaining something to him between side
conferences among themselves.
Defendant apparently infers from the absence of an
identified rivalry between Dogpatch and La Mirada at the time
that no violence was intended. However, the expert testified that
in gang culture disrespect shown by a gang member to another
gang or gang member can precipitate a rivalry, and regaining
respect commonly involves fighting with members of the other
gang, which may lead to greater violence, even murder.
Defendant acknowledges Valdez reported that La Mirada had
“talk[ed] smut” about Dogpatch, but dismisses this evidence
because there was no evidence that “talking smut” required the
murder of a person merely associated with the other gang. While
that may be true there was evidence that such “smut” talking
would require an assault with a deadly weapon: Valdez told
Bushnell that he had to shoot Imperial because “La Mirada was
talking smut about Dogpatch.”
17
We agree with the trial court that the circumstances
support the inference that Valdez retrieved a gun before the
assault on Imperial and refutes defendant’s inference that
defendant did not know Valdez was armed. Immediately
following the confrontation with Imperial in the front yard and
conferring with his fellow gang members, Valdez went into his
bedroom (the same room where sheriff’s deputies later found the
murder weapon) and came out with a jacket. Right after Valdez
returned from the crime scene, he washed his face and hands,
and soon after Bushnell saw Valdez with a gun wrapped in
clothing and then in a cloth.
Defendant urges the inference that defendant did not know
Valdez had a gun because the evidence did not show that anyone
saw him with a gun before he left the house or heard discussions
about Valdez arming himself. We disagree. Clearly defendant
and his fellow gang members made some sort of plan that July
evening that involved taking Imperial to another location in
order to earn respect for their gang. Immediately after making
the plan, Valdez went into the house and retrieved a thick jacket.
In addition a fourth Dogpatch member remained behind in the
house, apparently to watch Fierro and Bushnell.
As discussed above, the trial court reasonably inferred that
defendant and his fellow gang members intended an assault.
There was nothing in the evidence to suggest that this mid-July
evening was chilly. It is thus not reasonable to infer that Valdez
needed to retrieve a jacket for warmth. Considering all the
circumstances, the trial court reasonably inferred that the
purpose of the jacket was to conceal a firearm and that purpose
would have been obvious to his fellow gang members.
18
In support of his position that he did not see a gun,
defendant goes so far as to affirmatively assert that Valdez did
not draw his gun until he was chasing Imperial. Adding that
when Imperial broke away Valdez, unexpectedly and on his own,
decided to pull out a gun. Defendant concludes that no one saw a
gun until then, relying on Segoviano’s testimony that he did not
see a firearm until Valdez chased Imperial down and fired at
him. Defendant fails to cite to the trial record that Valdez was
identified as the shooter or that the shooter drew his gun only
after Imperial ran from his assailants, or for his suggestion that
Segoviano saw the shooter pull out his gun. Segoviano did not
identify Valdez as the shooter, and he testified that he did not see
a gun, only flashes. Defendant offers only speculation, and as
defendant has stated multiple times in his briefs, speculation is
not evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 735.)
Defendant argues that even if proved he knew Valdez was
armed with a gun, that would not support an inference of
awareness that Valdez would use it to murder Imperial.
Defendant concludes that there was no credible, reliable or solid
evidence showing awareness that Valdez was armed or an intent
by defendant to aid and abet Valdez in an assault with a firearm.
As we have discussed, the circumstances provide substantial
evidence that Valdez armed himself after defendant, Tracchia
and the other man made plans to isolate Imperial from his
friends, took him to a relatively secluded place, and assaulted
him while one of them carried a firearm. In addition, the fact
that one of them remained in the car in the middle of the street
with the lights out, ready for the quick getaway it made
19
immediately after the last shot was fired, indicated that the three
men intended something far more serious than a simple assault.5
We agree with the People that whether defendant was one
of the two who assaulted Imperial or remained in the car as the
getaway driver, substantial evidence established that he
displayed a conscious disregard for Imperial’s life, as he either
drove his companions to and from the scene or he ran from the
scene and fled in the car immediately after the gunfire, under
circumstances that he would most certainly know that the victim
was probably injured or dying.
We thus conclude that substantial evidence supported the
denial of defendant’s former section 1170.95 petition.
DISPOSITION
The order denying the petition is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
5 The trial court inferred that Tracchia remained in the car,
as it belonged to his grandmother, and he often drove the vehicle.
20