People v. Lopez CA2/3 ( 2022 )

Filed 12/23/22 P. v. Lopez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317628
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA497696
v.
JOSUE BRAYN LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed with directions.
David Y. Stanley, 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, Scott A. Taryle and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Josue Brayn Lopez (defendant) was convicted of
first degree murder as a direct aider and abettor. On appeal, he
contends there was insufficient evidence of premeditation and
deliberation to support his conviction. He also claims that an
error in the abstract of judgment requires correction. We agree
that the abstract must be corrected, but we otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Rodriguez and Sanchez are murdered.
Selvin Martute was also known as Mr. Rodriguez and Little
Boy; we refer to him as Rodriguez. Danny Sanchez was also
known as Kevin Sanchez, Gasparin, and Cornejo; we refer to him
as Sanchez. Rodriguez and Sanchez were always together and
appeared to be best friends. They were members of Parkview
Locos, a clique of the MS-13 gang.
On April 3, 2020, Rodriguez and Sanchez were in an alley
behind Wi Spa, located at 2700 Wilshire Boulevard, which is in
MS-13 territory. A car drove up and two members of the 18th
Street gang pinned Rodriguez against a fence and killed him.
Sometime after Rodriguez was killed, surveillance cameras
recorded defendant and three members of Parkview Locos on
bicycles arriving at Sanchez’s home, which was a tent or shed
with a blue tarp near Hoover Street and Carondelet Street. Video
footage showed them leaving on their bicycles about eight
minutes later.
On April 6, 2021, Sanchez was found dead in his tent; he
had a large amount of blood on his lap and pants area. Sanchez
had been stabbed 27 times and died from multiple sharp force
injuries to his organs, including his lungs and major arteries.
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2. Gang Evidence
MS-13 has three main “cliques” that operate in the
Rampart area of Los Angeles—Rampart Locos, Parkview Locos,
and Coronado Locos. While each clique operates independently,
its members are friendly and work with each other as they are all
under the umbrella of MS-13. MS-13’s main rival is the 18th
Street gang.
Gangs have certain codes of conduct, and gang members
want to get “respect” from their peers and those in leadership
positions. MS-13 members are expected to look out for each other,
and running away from a conflict would be a sign of weakness.
When members of MS-13 encounter rivals, especially members of
18th Street, they are expected to retaliate. It would be a sign of
weakness if an MS-13 member was unwilling to act violently
when confronted with a rival gang, and would signal to the rival
gang that there is an opportunity to move in and take over MS-13
territory. Such a display of weakness would put the MS-13
member in danger and subject him to discipline within his own
gang for failing to abide by MS-13’s code of conduct. That
discipline might include assaulting the member with fists, bats,
or other blunt objects, and, at times, stabbing and murdering the
individual.
Each clique has a “shot caller.” The shot caller makes sure
the clique is maintaining the code of conduct and committing
crimes that benefit the gang. An MS-13 gang member with
multiple tattoos is “not at the bottom of the totem pole;” the
individual has “proven themselves” and “earned that respect to
obtain each tattoo.” It is sometimes necessary to involve members
of one clique in the discipline of another clique member to provide
oversight. MS-13 is very strict about its code of conduct and is
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willing to kill its own members to maintain order within the
gang.
3. The Undercover Operation1
On April 16, 2021, before he was interviewed by the police,
defendant was placed in a cell with an undercover agent who
wore a recording device. Police detectives listened to the
conversation between defendant and the agent while it took
place.
Defendant was a member of the Coronado Locos clique.2 He
knew Rodriguez because Rodriguez sometimes “kicked it” with
defendant’s clique. After Rodriguez was murdered, some
individuals from Parkview Locos told defendant that Sanchez
had set Rodriguez up to be killed. In response, defendant asked
them, “[W]ell, what are you fools doing about it?” The Parkview
Locos individuals were “youngsters” who were “iffy” about what
they were doing. Defendant wanted to “go see what’s up” and talk
to Sanchez. He told the group they “should know what’s up” and
“do what you got to do.” Defendant offered to go with the group to
help and provide back up.
Defendant told the undercover agent he knew the group
was going to “whack” Sanchez because defendant and the
Parkview Locos were “turned up” and “were talking about
whacking [Sanchez] back.” Defendant knew the Parkview Locos
members “were gonna do something” and felt that someone from
1The type of undercover operation conducted in this case is known as a
“Perkins operation.” (See Illinois v. Perkins (1990) 496 U.S. 292.)
2He has several gang tattoos including a tattoo of horns on the top of
his head, an “MS” tattoo on his cheek, and a huge tattoo of “MS” on his
chest.
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another clique should be present to say the discipline was
justified or “legit.”
When they arrived at Sanchez’s tent, defendant sat down
next to Sanchez while the Parkview Locos group stood in front
and around them. Defendant and the others questioned Sanchez
about whether he had set Rodriguez up. Someone from Parkview
Locos took out a knife, and defendant tried to signal to Sanchez
that the individual wanted to stab and kill him. Parkview Locos
members looked to defendant for direction and advice, but he felt
any issue with Sanchez was a matter within their clique.
Defendant was just there to “scope it out to see like if it’s legit.”
Three individuals from Parkview Locos began stabbing
Sanchez, causing him to scream. Defendant covered Sanchez’s
mouth because he was making too much noise and defendant did
not want them to get caught. In response to being asked by the
agent if anyone was holding Sanchez down, defendant stated,
“Yeah, like it was me. Like I was going like this to him the whole
time.” At some point, Sanchez got up and ran or moved around.
The individuals from Parkview Locos continued “whacking”
Sanchez, so Sanchez sat back down. Defendant told them that
Sanchez was making too much noise and defendant covered
Sanchez’s mouth “again.” Sanchez bit defendant’s hand, causing
him to let go. Someone stabbed Sanchez a final time and then
they left the tent. Defendant covered Sanchez, who was still
moving, with a blanket and left. Defendant had to change his
clothes because he “was covered in blood and shit.”
4. Defendant’s Police Interview
Ten minutes after the undercover operation was completed,
two detectives interviewed defendant. He said he was 23 years
old and had been in the Coronado Locos clique of MS-13 since he
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was 12. Defendant told the detectives he was angry when he
heard Rodriguez had been killed.
Defendant agreed to go to a meeting to confront Sanchez if
people needed his help. He was there to give his opinion as to
who was right and who was wrong, but he denied being a “shot-
caller” for this meeting. Defendant sat next to Sanchez at the
meeting. The others began stabbing Sanchez and defendant
covered Sanchez’s mouth but let go when he realized they really
were stabbing him, which defendant had not expected them to do.
Defendant told them to stop but the last person stabbed Sanchez
one more time. He could tell Sanchez was dying, and he felt bad
and put a blanket over him. If it had been up to defendant, he
would have told the group to stab Sanchez in the legs instead of
killing him. Defendant also told the detectives that if he had not
participated in Sanchez’s murder, he would have been labeled “a
snitch, a bitch” and endangered himself and his family. Indeed,
he would “probably [be] somewhere buried.”
5. Conviction and Sentencing
After a jury trial, defendant was found guilty of first degree
murder in violation of Penal Code section 187, subdivision (a) for
Sanchez’s murder.3 He was sentenced to a prison term of 25 years
to life.
DISCUSSION
1. Substantial evidence supports the murder conviction.
It is undisputed that defendant was prosecuted under a
direct aider and abettor theory. Consistent with that theory, the
3 All undesignated statutory references are to the Penal Code.
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jury was instructed on aider and abettor culpability. The jury was
also instructed on the definitions of malice, and on first and
second degree murder. As noted, the jury returned a verdict of
first degree murder. Defendant contends the evidence is
insufficient to support his conviction because the only evidence of
his specific intent was based on speculation from a gang expert
on how gangs operate. We are not persuaded.
When the sufficiency of the evidence to support a conviction
is challenged on appeal, we review the entire record in the light
most favorable to the judgment to determine whether it contains
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. Elliott (2012) 53 Cal.4th
535, 585.) Our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether the evidence
might be reasonably reconciled with the defendant’s innocence.
(People v. Manibusan (2013) 58 Cal.4th 40, 92.) “Evidence of a
defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to
support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194,
1208.)
Murder is of the first degree when it is willful, deliberate
and premeditated. (§ 189, subd. (a).) A killing is premeditated
and deliberate if it is considered beforehand and occurred as the
result of preexisting thought and reflection, rather than as the
product of an unconsidered or rash impulse. (People v.
Pearson (2013) 56 Cal.4th 393, 443.) “Deliberation” refers to
careful weighing of considerations in forming a course of
action; “premeditation” means thought over in advance. (Ibid.)
Premeditation and deliberation do not require any extended
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period of time. (People v. Salazar (2016) 63 Cal.4th 214, 245.) The
issue is not so much the duration of time as it is the extent of
reflection, because thoughts may follow each other with great
rapidity, and cold, calculated judgment may be arrived at quickly.
(People v. Potts (2019) 6 Cal.5th 1012, 1027.)
Three categories of evidence are especially probative to
establish premeditation and deliberation: (1) what was the
defendant doing before he committed the crime (planning
activity), (2) facts about the relationship between the victim and
the defendant (motive), and (3) the manner of killing. (People v.
Potts, supra, 6 Cal.5th at pp. 1027–1028; People v. Anderson
(1968) 70 Cal.2d 15, 26–27.) The so-called Anderson factors are
not all required and are not exclusive; instead, they are a
framework to guide appellate review. (People v. Morales (2020) 10
Cal.5th 76, 89.)
“Aiders and abettors may still be convicted of first degree
premeditated murder based on direct aiding and abetting
principles. ([People v.] McCoy [(2001)] 25 Cal.4th 1111, 1117–
1118.) Under those principles, the prosecution must show that
the defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or
facilitating its commission. (Id. at p. 1118.) Because the mental
state component—consisting of intent and knowledge—extends to
the entire crime, it preserves the distinction between assisting
the predicate crime of second degree murder and assisting the
greater offense of first degree premeditated murder. … An aider
and abettor who knowingly and intentionally assists a
confederate to kill someone could be found to have acted willfully,
deliberately, and with premeditation, having formed his own
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culpable intent. Such an aider and abettor, then, acts with the
mens rea required for first degree murder.” (People v. Chiu (2014)
59 Cal.4th 155, 166–167.)
There is sufficient evidence in the record of planning,
motive, and manner of killing from which the jury could find that
defendant aided and abetted the Parkview Locos members in
murdering Sanchez, and that defendant knew they intended to
kill and he shared that intent.
First, defendant and the Parkview Locos members had a
motive for killing Sanchez. MS-13 had a code of conduct
mandating that its members retaliate against rival gangs and
especially against 18th Street gang members. Discipline for
failing to uphold this code included assault, stabbing, and
murder. MS-13 was willing to kill its own members to maintain
order within the gang. Sanchez was murdered by members of his
own gang as discipline for setting Rodriguez up to be killed by
18th Street gang members, or for not retaliating when 18th
Street gang members murdered Rodriguez in MS-13 territory.
Defendant also admitted he got “mad” when he found out that
Rodriguez had been killed “by the enemies and shit.” And
defendant “was mad about how these fools were kind of iffy about
what they were doing. …”
Second, there was planning evidence. Defendant and
individuals from Parkview Locos met and discussed disciplining
Sanchez for Rodriguez’s murder. During their meeting before
Sanchez was killed, defendant asked them, “[W]ell, what are you
fools doing about it?” Defendant then offered to go with the group
to help and provide back up when Sanchez was confronted.
Defendant also told the undercover agent he knew the group was
going to “whack” Sanchez because defendant and the Parkview
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Locos were “turned up” and “were talking about whacking
[Sanchez] back.” Defendant felt that someone from another clique
should be present when they confronted Sanchez to say the
discipline was justified or “legit.”
Third, the manner of killing supported an inference of
premeditation and deliberation. Sanchez was cornered in his tent
by four people from his own gang. And with defendant’s help, the
Parkview Locos members stabbed Sanchez 27 times. (See People
v. Sandoval (2015) 62 Cal.4th 394, 425 [jury could reasonably
infer premeditation and deliberation when a weapon was fired 28
times over two minutes].)
There was also strong evidence that defendant aided or
encouraged the commission of the murder and shared the
murderous intent of the actual perpetrators. (See People v.
McCoy, supra, 25 Cal.4th at p. 1118.) As we discussed before,
defendant told the undercover agent he knew the Parkview Locos
members were going to “whack” Sanchez because defendant and
the Parkview Locos were “turned up” and “were talking about
whacking [Sanchez] back.” And after they got to Sanchez’s tent,
defendant covered Sanchez’s mouth because Sanchez was making
too much noise while he was being stabbed. In fact, defendant
said he held Sanchez down “the whole time.” Defendant also said
he brought a blindfold with him to Sanchez’s tent because he was
mad. And defendant acknowledged that a Parkview Locos
member kept looking at defendant for direction when they were
in Sanchez’s tent.
Defendant relies on People v. Killebrew (2002) 103
Cal.App.4th 644, for his assertion that expert testimony about
the general practices of gangs cannot be used to establish a
defendant’s mens rea. Defendant’s interpretation of its holding is
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overbroad. Killebrew does not generally prohibit such testimony;
rather, the reviewing court concluded that in view of the facts
and circumstances of that case, the expert’s opinion about the
defendant’s subjective knowledge and intent was inadmissible.
Notably, the expert’s testimony in Killebrew was the only
evidence offered by the prosecution to establish the elements of
the crime. “As such, it [was] the type of opinion that did nothing
more than inform the jury how [the expert] believed the case
should be decided. It was an improper opinion on the ultimate
issue and should have been excluded.” (Id. at p. 658.)
Here, in contrast to Killebrew, the evidence of defendant’s
intent to help kill Sanchez was not based solely on the gang
expert’s testimony. As explained by the Attorney General,
defendant’s mental state was established through his “own
admissions and the circumstances of Sanchez’s death, in addition
to the gang expert testimony that gave context to the gang
undertones.”4 We also observe that defendant has not pointed us
to the specific expert testimony that was objectionable, or shown
that he preserved the issue by objecting to the testimony at trial.
This argument is, therefore, deemed forfeited. (See People v.
Perez (2020) 9 Cal.5th 1, 7 [ordinarily, the failure to object to the
admission of expert testimony at trial forfeits an appellate claim
that such evidence was improperly admitted].)
In sum, substantial evidence supports defendant’s first
degree murder conviction as a direct aider and abettor.
4By way of example, the gang expert testified that he believed the
attack on Sanchez was planned based on defendant’s statements
during the undercover operation.
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2. The abstract of judgment should be corrected.
Defendant also argues, and the Attorney General concedes,
that the abstract of judgment must be corrected to remove a
checkmark in the box indicating that sentencing occurred
pursuant to “PC 667(b)-(i) or PC 1170.12,” that is, under the
Three Strikes law. As defendant points out, no prior conviction
for a serious or violent felony was pled or proven, and he was not
sentenced under the Three Strikes law. We therefore agree that
the abstract must be corrected to remove the checkmark in box
No. 8.
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DISPOSITION
The judgment is affirmed. The trial court is directed
to correct the abstract of judgment by removing the checkmark in
box No. 8 indicating that defendant was sentenced under the
Three Strikes law and to ensure that a certified copy of the
corrected abstract is sent to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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