People v. Rodriguez ( 2021 )

Filed 7/19/21
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C087974
Plaintiff and Respondent, (Super. Ct. No.
STKCRFECOD20150006748)
v.
JESUS ALBERTO RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, William
D. Johnson, Judge. Affirmed as modified.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell,
Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto, Deputy
Attorney General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts II – IV, VI.
1
Defendant and his codefendant Ralph Gamboa went on a two-day crime spree in
Stockton. They robbed and attempted to rob numerous victims, and when met with
resistance or perceived noncompliance, they resorted to violence. In separate incidents
on the same day, defendant shot Victor D.R. in the head but he survived, Gamboa later
shot and killed Luis Z., and defendant later shot and killed Javier R. 1
A jury found defendant guilty of all 19 counts charged and found true 11 firearm
enhancements and two robbery-murder special-circumstances allegations. The trial court
sentenced defendant to an aggregate term of 178 years eight months to life plus two
consecutive terms of life without the possibility of parole. On appeal, defendant asserts:
(1) the evidence was legally insufficient to support the special circumstances finding as to
Luis because he was not the actual killer and the evidence was insufficient to prove that
he had the intent to kill Luis or was a major participant who acted with reckless
indifference to human life; (2) following the enactment of Senate Bill No. 1437, his
conviction for Luis’s murder must be reversed; (3) as related to Javier R., the evidence
was insufficient to prove defendant attempted to rob Javier R. or that it was defendant
who shot and killed him and therefore the robbery-murder special circumstances, an
attempted robbery conviction, and a firearm enhancement must be struck; (4) Penal Code
section 654 2 barred separate punishment for counts 1 (murder of Luis) and count 2
(attempted robbery of Luis), and for count 6 (attempted murder of Victor), count 7
(attempted robbery of Victor), and count 8 (mayhem involving Victor); (5) the trial
court’s imposition of a $1,000 administrative fee under section 1202.4, subdivision (l),
1 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in Opinions,”
we refer to the victims and witnesses by their first name and last initial and thereafter by
their first names, except where their first name is unusual, in which case we refer to them
by their first and last initials.
2 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
2
was unauthorized because defendant was sentenced to prison; and (6) the parole
revocation fine must be struck because defendant was sentenced to life without the
possibility of parole.
We shall modify the judgment to (1) stay execution of the sentence imposed on
count 8, mayhem, pursuant to section 654, and (2) impose the $1,000 collection fee
pursuant to section 1202.4, subdivision (l), the trial court did not orally impose. As so
modified, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with multiple counts, two robbery-murder special-
circumstance allegations and multiple firearm enhancements related to a two-day crime
spree. 3 Codefendants Gamboa and Sirenia Alcauter were charged in the same
information. Defendant was 16 years old at the time of these events. After a transfer
hearing pursuant to Proposition 57, the “Public Safety and Rehabilitation Act of 2016,”
defendant was found unfit for juvenile court.
3 Defendant was charged with two counts of first degree murder (§ 187, subd. (a); counts
1, 4), four counts of attempted robbery (§§ 664, 211; counts 2, 5, 7, 9), assault with a
firearm (§ 245, subd. (a)(2); count 3), attempted murder (§§ 664, 187, subd. (a); count 6),
mayhem (§ 203; count 8), eight counts of second degree robbery (§ 211; counts 10, 11,
12, 13, 14, 15, 16, 17), possession of a firearm near a school (§ 626.9, subd. (b); count
25), and resisting, obstructing, or delaying a peace officer (§ 148; count 26). In
connection with count 1, the information alleged felony murder and multiple-murder
special circumstances against defendant. (§ 190.2, subds. (a)(3), (17).) In connection
with count 4, the information alleged defendant personally discharged a firearm causing
great bodily injury or death (§ 12022.53, subd. (d)), and felony murder and multiple-
murder special circumstances (§ 190.2, subds. (a)(3), (17)). In connection with counts 5-
8, the information alleged defendant personally discharged a firearm causing great bodily
injury. (§ 12022.53, subd. (d).) In connection with counts 9, 10, 11, 15, 16, and 17, the
information alleged defendant personally used a firearm. (12022.53, subd. (b).)
3
Events Occurring on June 11, 2015
Attempted Robbery of C.T. 4
Just before 3:00 p.m., witness R.G. was at a store on Charter Way in Stockton
cashing a check. 5 When she returned to her car, she saw a robbery taking place. She saw
a man walk towards the far side of California Street and towards a parked car. He pulled
out a gun and pointed it at people inside the car. R.G. took a picture of the robbery and
then called 911. The 911 call was received at 2:56 p.m. In the call, R.G. described the
person attempting to commit the robbery as a Hispanic male approximately 19 or 20
years old wearing a white shirt and black jeans.
Robbery of Mario S.
At approximately 3:00 p.m., Mario S. was parked on California Street where he
had driven with his father. Mario’s father went into a salon while Mario stayed in the
car. Mario noticed what appeared to be a son arguing with his father, or a younger guy
arguing with an older guy. The younger person was outside of a car, and the older person
was in the car. 6 Mario resumed texting on his phone. Then someone came up to the
driver’s side of Mario’s car and told Mario to give him his phone. The person pulled out
a silver revolver, pointed it at the side of Mario’s head, and repeated, “ ‘Give me your
phone.’ ” He also told Mario, “ ‘Do you think I’m playing?’ ” Mario testified that the
person looked “a little younger than I was, and I think probably around 16 years old.”
Mario gave the person his phone. The person opened the rear driver’s-side door of
Mario’s car, grabbed something, and then he took off. As he was leaving, Mario’s father
4 C.T. did not testify at trial.
5 Except where otherwise specified, all events occurred in Stockton.
6 The prosecutor argued in closing that this was defendant attempting to rob C.T.
4
returned and yelled at the person who “dropped the stuff and took off.” Mario’s father
called 911. The call was received at 3:02 p.m.
Attempted Robbery and Attempted Murder of Victor
Victor was walking near the corner of Grant Street and First Street, talking to his
mother on his cell phone. Victor passed defendant, who was wearing shorts and a white
T-shirt. After Victor passed him, defendant said, “ ‘Hey, let me see that phone.’ ” Victor
turned around and “noticed a revolver probably a foot or two away from [his] face” being
held by defendant. The revolver was silver. Victor shook his head and continued to
walk. He looked over his shoulder, heard a loud pop, and felt something “really, really
terrible,” pain on the right side of his head near the corner of his eye. Victor called 911.
He described the perpetrator as Hispanic and wearing a white shirt and jean shorts. As of
trial, Victor could see color but could not distinguish shapes with his right eye. Victor’s
911 call was received at 3:21 p.m.
Robbery of Javier M.
At approximately 5:30 p.m., Javier M. drove a friend to Canelo’s Market. His
friend got out of the car while Javier M. waited in the car. Javier saw defendant in his
rearview mirror walk across the parking lot towards where his car was parked.
Defendant came to Javier M.’s driver’s window and asked to borrow his cell phone.
Javier M. refused, saying he had to leave. Defendant then pulled out a gun, pointed it at
Javier M., and said, “ ‘Do you want to die?’ ” The gun was a silver revolver. Javier M.
gave defendant his cell phone. Defendant then demanded money and opened the car
door. Defendant took a bag that was in the driver’s-side door that Javier M. used for
coins. Defendant stepped back, and Javier M. took the opportunity to get out of the car
and go into the store.
Attempted Robbery and Murder of Luis
At approximately 6:00 p.m., Gilberto V. and Gerardo V. were with their boss,
Luis, in the back area of Billy Jack’s Tire Shop. Gilberto heard people arguing in
5
Spanish, and so he went to the window. He saw a Hispanic man with a handgun. The
man, who was wearing a white shirt, came into the back area and said, “ ‘Give me
money, motherfuckers.’ ” Gerardo identified Gamboa at trial as the man with the gun. 7
He thought the gun was a gray revolver. Gerardo said he did not have any money. Luis
told Gamboa to hold on, reached to his pocket to get money, but, before he could give
Gamboa money, Gamboa shot him. Gamboa immediately left and went to the car in
which he arrived. He got into the passenger side of the car, and, as soon as he got in, the
car drove off.
Luis suffered a close-range fatal gunshot wound. The pathologist testified that the
bullet recovered from his body was .356-caliber or nine-millimeter, also consistent with a
.38-caliber.
Stockton Police Officer Christopher Pulliam obtained surveillance video from the
business across the street from the tire shop. In the video, a male wearing a white shirt
can be seen exiting the driver’s door of a parked car. A second male can be seen getting
out of the passenger side of the car, walking around the car, and getting into the driver’s
side. The person who got out of the driver’s side was off screen for approximately 48
seconds until he ran back to the car and got in the passenger door before the car drove
off.
Robbery of Taco Truck Patrons
Between 8:00 and 8:30 p.m., Saul R., his brother Jesus R., and Saul’s friend
Fernando G. were at a taco truck. They were seated at a table in an area behind the taco
truck when a car pulled up and Gamboa approached them. Gamboa pointed a gun at
them and demanded all the money they had. Defendant participated in the robbery as
7 Gerardo had previously identified Gamboa in a pretrial photo lineup. Gilberto did not
identify the man in court, and had previously identified someone in a pretrial photo
lineup.
6
well. He, too, was armed with a gun and he pointed it at Jesus and demanded money.
Saul stood up, and Gamboa put the gun to Saul’s head and told him to sit back down.
Gamboa took $900 from Saul, as well as his wallet with all his papers. Gamboa and
defendant also took an iPhone and $100 from Jesus and two phones from Fernando.
Defendant and Gamboa walked to a car that was waiting for them and the car drove off.
Robbery of Martha M.
Martha M. got out of class between 9:10 and 9:15 p.m. and went to the Sufi
Market near the corner of Market and E Street. She got out of her car and was locking
her door when defendant approached her and asked her if she had a phone he could use.
Martha went to pull her phone out when she felt defendant trying to yank her necklaces
off. Martha struggled and held onto her necklaces, and defendant told her to let go. She
then saw that defendant had a black gun, which he “basically pointed right at [her] head,”
and she let go of her necklaces. Defendant yanked her chains and they broke, he took
them, and he walked away. He told Martha, “ ‘You think I’m playing,’ ” which she took
as a threat.
The prosecution played for the jury People’s exhibit 114, a surveillance video
taken outside of Sufi Market. Martha’s car can be seen parking across the street from the
market. 8 Martha identified defendant in the video and testified that he was the person
who robbed her. Defendant is wearing a white shirt, and dark pants in the recording. He
can be seen approaching Martha’s car and stopping, partially out of the frame. Seconds
8 Before he interacts with Martha, defendant can be seen standing and walking around
the area in front of the store, looking around in all directions. At one point, he walks into
the street, approaches a car that stops because defendant is obstructing its way, and
interacts with the driver before the car drives off. Immediately before interacting with
Martha, a car pulls up in front of the market, the female driver goes into the market, and
defendant approaches the driver’s side of the car, opens the driver’s door causing a
passenger to turn towards him, leans in, and rifles through the car handling various
objects while the passenger remains seated.
7
later, he exits the frame altogether. Several seconds later, defendant reappears in the
frame, appearing to lean back while pulling on something. It appears that what he is
pulling on gives way, and he stumbles backwards a bit, turns around, and walks towards
the other side of the frame. At this point, defendant can be seen holding a black gun in
his right hand, as Martha testified at trial. Martha testified that, by this point, defendant
had taken her necklaces. Defendant walks out the opposite side of the frame. Martha
then approaches the market while putting her hand to her neck and looking in the
direction defendant went. Based on the time stamp, adjusted for the correct time,
defendant’s robbery of Martha was completed by 9:22 p.m. 9
Corona Liquors
People’s exhibit 197, a city surveillance video recorded near Main and Sonora
Streets across the street from Corona Liquors, was played for the jury. The relevant
portion of the video was recorded between 9:20 and 9:30 p.m. We shall discuss what
appears on the video in greater detail in part III. of the Discussion, post. For present
purposes, suffice it to say that it can be inferred from the circumstances that this incident
and the one we next discuss involving Javier R. appear to be part of a continuous event
involving Javier R. We note that Corona Liquors is approximately eight blocks south of
Sufi Market and approximately three blocks east from the block of East Sonora Street
where Javier R. was shot.
On the video, an individual wearing a white shirt and dark pants gets out of a
parked car in the Corona Liquors parking lot and interacts with a second individual who
arrived in the parking lot on foot. That person runs away to the west, the other individual
gets back in the car, and the car departs westbound in the same direction as the individual
who ran.
9 Sergeant Phirun Var testified that the time stamp on the video was an hour off. Thus,
these events occurred at approximately 9:20 p.m., not 8:20 p.m..
8
Murder of Javier R.
D.S. lived on East Sonora Street. At approximately 9:30 p.m., she was in her front
yard with her friend, Maria G. They observed a young man walk by on the other side of
the street, walking from right to left. Maria identified the young man as Javier R., a
friend of her children. They then saw a car drive by slowly in the same direction Javier
R. was walking. 10 The car stopped and a young male wearing a white T-shirt got out of
the passenger’s side and approached Javier R. According to Maria, the male who got out
of the car was a “kid” whom she estimated to be 16 years old. That “kid” said something
to Javier R., pulled out a black semiautomatic gun, and Javier raised his hands in the air.
D.S. believed she heard something like, “ ‘I’m going to kill you, I’m going to kill you,’ ”
and Javier R. saying, “ ‘Don’t kill me, don’t kill me.’ ” Maria just heard Javier R. yell,
“ ‘No.’ ” The person with the gun then fired two shots. Javier R. began walking, holding
his chest, and then fell. The shooter got into the passenger’s side of the car and the car
drove off.
A.R. also lived on East Sonora Street. He was going into his house when he heard
someone say, in English, “ ‘I told you I was going to kill you.’ ” He turned around and
saw someone with a black gun. A.R. saw another person, later identified as Javier R.,
raise his hands and turn around, and then the person with the gun shot Javier R. in the
back. A.R. described the shooter as 18 or 20 years old. A.R., who had gone to the
ground, testified the shooter went to a car and he heard the car drove off. A 911 call
reporting the shooting was received at 9:30 p.m.
10 D.S. lived in an even-numbered house on East Sonora Street. It appears, from
People’s exhibits 40 and 41, that odd-numbered houses are on the north side of East
Sonora Street. Thus, if D.S. and Maria were at D.S.’s house on the south side of the
street facing north, the man would have been walking, and the car would have been
driving, east to west. As previously noted, Corona Liquors was approximately three
blocks to the east.
9
Javier R. suffered a fatal gunshot wound to the left side of his lower back and
blunt force trauma, which could have resulted from a fall on a hard surface after being
shot.
At the scene, an evidence technician found two cartridge casings that both had
head stamps that said “WIN,” “.40 S and W.” The evidence technician also found an
expended bullet embedded in the side of a car parked nearby. As we discuss in more
detail in the unpublished part of this opinion, the evidence supports the conclusion that
defendant was the shooter.
Events Occurring on June 12, 2015
Attempted Robbery of Juan O.
At approximately 6:15 p.m., Juan O. went to the store where he cashed his checks.
He parked his minivan in front of the store. When he came out of the store, he went to
his vehicle and got in. Defendant approached Juan, opened Juan’s passenger door, and
asked him if he wanted to buy some weed. Juan said no and started to put his key in the
ignition. Juan turned again to look at defendant and saw that he had a gun. The gun was
a black semiautomatic. Defendant told Juan to give him all his money. At one point,
defendant turned his head and Juan opened his door, fled, and hid by a large trash
container. From there, he watched defendant search in his car. Juan held up his cell
phone and said that he was going to call the police. Defendant moved around the car and
Juan ran off again. There was another car parked nearby with a woman inside, and, as
Juan ran, a male came out from behind the car and tried to kick his feet and knock him
down. Juan testified he jumped over the person’s feet and kept running. At some point,
Juan hid again and called the police.
Robbery of Byron P.-M.
At approximately 8:00 p.m., Byron P.-R. went to El Paisano Market. He parked
his car and, before he could get out, defendant opened the passenger door and placed a
gun to Byron’s head. Defendant demanded money and threatened to kill Byron.
10
Specifically, he said, “ ‘Bitch, are you going to give me the money or I’m going to kill
you.’ ” Byron pointed out where his wallet was and told defendant to take the money.
Defendant took the money, approximately $140 or $150, shut the door, and walked away.
The gun was black and Byron described it as “one of those guns that you pull backwards,
that thing . . . and it’s on the top.”
Initial Apprehension of Gamboa and Alcauter
On June 14, 2015, Lodi Police Officer Nick Rafiq attempted to stop a vehicle for a
traffic infraction in Lodi. The driver did not pull over and instead sped away, and Rafiq
followed. While he was following the vehicle, Rafiq observed a male passenger toss
what looked like a handgun out the window. Rafiq continued to follow the vehicle into a
parking lot. As soon as the car stopped, Rafiq saw two people get out of the car. The
driver, a woman, immediately ran towards Highway 99. Rafiq detained the passenger,
Gamboa.
Lodi Police Officer Eric Shaw heard Rafiq’s account of the pursuit and that an
object had been tossed from the moving vehicle. Responding to the area, he found a
stainless steel Ruger revolver. The gun was loaded with five .38-special rounds. Shaw
also located Alcauter hiding in a shrub on an embankment on the side of Highway 99.
Both Alcauter and Gamboa were released from custody that day.
Apprehension of Gamboa and Defendant
On June 20, 2015, Stockton Police Officer Richard Zamora saw defendant and
Gamboa walking together. Zamora got out of his patrol vehicle and yelled at them to
stop. Gamboa stopped where he was but defendant, who had a backpack, ran away.
Zamora stayed with Gamboa. Officer Sean Rogers pursued defendant. While defendant
was running, he dropped the backpack between a school and a church. Rogers recovered
the backpack. Inside, he found a Glock Model 22 semiautomatic. There was one round
inside the backpack and 10 in the gun’s magazine. On the slide of the handgun were the
11
numbers .40, indicating that it was a .40-caliber firearm. The rounds bore the head stamp
“WIN .40 S and W.”
Further Investigation and Forensic Firearms Examination Testimony
Detective Lisa Asklof participated in a search of a residence associated with
Gamboa. During the search, police found three cell phones, one of which was Mario’s
phone.
Rocky Edwards, an expert in firearm and tool mark identification, test fired the
Ruger .38-special handgun and concluded that the bullet recovered from the body of Luis
was fired from the Ruger. Edwards also examined the Glock Model 22 and ammunition
marked “.40 SW.” He testified that “.40 SW” referred to the caliber of firearm, that they
were “.40 Smith and Wesson, which is basically a ten-millimeter short.” Edwards
examined the two cartridge casings recovered from the scene where Javier R. was killed.
He concluded that the Glock 22 was the gun that fired those cartridge casings.
Sirenia Alcauter’s Testimony
Sirenia Alcauter testified for the prosecution under a plea agreement. 11 Alcauter
testified that she had been romantically involved with Gamboa for approximately five or
six months before she was arrested. She knew defendant as Gamboa’s friend.
On June 11, 2015, Alcauter received a text message from Gamboa which read,
“ ‘load the tray,’ t-r-a-y, ‘8.’ ” She understood this message to mean that she was to load
Gamboa’s .38-caliber revolver, and she did so. Alcauter testified that a photograph of the
stainless steel revolver Officer Shaw found after it had been thrown out of the car was the
gun she loaded for Gamboa on June 11, 2015. Gamboa had possessed that gun for as
long as Alcauter had known him. Gamboa came to Alcauter’s house on June 11, 2015,
11 Pursuant to the plea agreement, in exchange for her testimony, she pled guilty to the
voluntary manslaughter of Luis and the robberies of Mario, Javier M., Saul, and Jesus,
for which she would be sentenced to an aggregate term of 15 years in prison.
12
and she gave him the loaded .38. Gamboa also owned another gun, the black Glock
Model 22 Alcauter also identified in a photograph.
Alcauter testified that, on June 12, 2015, she rode in her car with Gamboa, who
was driving, and defendant. They went to a location in the area of California Street and
Martin Luther King Boulevard. Defendant got out of the car, and Gamboa stayed in the
car with her. At some point, Gamboa got out of the car, went around to the back of the
car, and “tripped the man that was running along the side of the sidewalk.” Then
defendant returned to the car.
They then drove to the El Paisano Market. Alcauter went into the store and, when
she came out, she walked towards her car. As she did so, she saw defendant standing at
the front passenger door of the car behind hers. Alcauter got into her car, and shortly
thereafter, defendant got into her car. When they drove away, the car defendant had been
standing by was following them. Defendant said he wanted to open the door and shoot in
the air to scare the other car off, but Alcauter told him not to.
On June 14, 2015, Alcauter was driving her car in Lodi and Gamboa was with her.
She noticed a Lodi police car behind her trying to pull her over, but at Gamboa’s
direction, she kept going. Gamboa had one of his guns with him, and he said it was hot,
which Alcauter understood to mean that it had been used in a crime. He said he was
going to throw the gun out the window, and Alcauter saw him do so. At some point,
Alcauter came to a stop in a parking lot, and she got out of the car and ran across the
freeway to the other side of the freeway. She ran into a bush where she hid, but was
ultimately found and arrested. Both Alcauter and Gamboa were released on the same
day.
Alcauter and Gamboa spent that night together. At some point, Gamboa
mentioned that he was “waiting for the police to knock down his door.” Later, he told
Alcauter that he had shot someone with the gun that he had thrown out the car window.
13
Referring to the person he shot, Gamboa told Alcauter that “he didn’t want to give it up
so [Gamboa] shot him.”
Verdicts and Sentence
The jury found defendant guilty on all counts and found the special circumstances
and firearm enhancement allegations true. The trial court sentenced defendant to an
aggregate term of 178 years eight months to life plus two consecutive terms of life
without the possibility of parole.
DISCUSSION
I. Sufficiency of the Evidence -- Felony Murder Special Circumstance
Regarding the Murder of Luis Z.
A. Defendant’s Contentions
Acknowledging he was sitting outside the tire shop in the car, defendant
emphasizes it was Gamboa who went inside and shot Luis in the course of an attempted
robbery. Defendant argues the evidence was insufficient to prove either that he had the
specific intent to kill Luis or that he was a major participant who acted with reckless
indifference to human life. Comparing the facts of this case to the facts in Enmund v.
Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140] (Enmund), Tison v. Arizona (1987) 481
U.S. 137 [95 L.Ed.2d 127] (Tison), and People v. Banks (2015) 61 Cal.4th 788 (Banks),
and considering those facts along the Enmund-Tison continuum, defendant asserts that,
like the defendants in Enmund and Banks, he was a mere getaway driver. Thus,
according to defendant, he was not a major participant. Additionally, focusing on the
factors set forth in People v. Clark (2016) 63 Cal.4th 522, 618-623 (Clark), defendant
asserts that the evidence was insufficient to demonstrate that he acted with reckless
indifference to human life.
We are aware of no published cases applying the Banks/Clark analysis to a murder
committed during the course of a crime spree. In our view, the circumstance of a crime
spree adds a dimension to the analysis not present in the typical single-event scenario.
14
Given the crime spree here and defendant’s role in it, we conclude there is substantial
evidence supporting the special circumstance finding as to the murder of Luis.
B. Standard of Review
“The law governing sufficiency-of-the-evidence challenges is well established and
applies both to convictions and special circumstance findings. [Citations.] In reviewing
a claim for sufficiency of the evidence, we must determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime or special circumstance beyond a
reasonable doubt. We review the entire record in the light most favorable to the
judgment below to determine whether it discloses sufficient evidence—that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the
evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support
of the judgment the existence of every fact the jury reasonably could deduce from the
evidence. [Citation.] If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010)
50 Cal.4th 616, 638-639 (Jennings).) In other words, “ ‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)
C. Tison Liability
The felony-murder special circumstance applies to aiders and abettors who either
act with intent to kill (§ 190.2, subd. (c)), or who are major participants and act with
reckless indifference to human life (§ 190.2, subd. (d)). The “reckless indifference” and
“major participant” elements of section 190.2, subdivision (d), codify the holding in
Tison, supra, 481 U.S. 137. (Banks, supra, 61 Cal.4th at p. 794.) As a shorthand, we
15
shall refer to the major participant/reckless indifference theory for special circumstances
aider and abettor liability as Tison liability.
Major participation is the actus reus requirement for felony-murder special
circumstances and reckless indifference is the mens rea requirement. (Banks, supra, 61
Cal.4th at p. 798.) These elements “often overlap.” Major participation, while not
sufficient to establish reckless indifference by itself, can “often provide significant
support for such a finding.” (Tison, supra, 481 U.S. at p. 158, fn. 12; accord, Clark,
supra, 63 Cal.4th at pp. 614-615 [noting the “interrelationship” between the two elements
and that they often overlap]; People v. Medina (2016) 245 Cal.App.4th 778, 788 [noting,
“[t]hese two requirements -- having a reckless disregard for human life and being a major
participant -- will often overlap.”].) In evaluating evidence of Tison liability, “it is
important to consider where the defendant’s conduct falls on the ‘spectrum of culpability’
that Enmund and Tison established.” (In re Scoggins (2020) 9 Cal.5th 667, 675
(Scoggins).)
Earl Enmund was the getaway driver in a robbery murder. (Enmund, supra, 458
U.S. at pp. 784-787 & fn. 2.) He drove two armed confederates to the victims’ house
“and waited nearby while they entered. When [the] wife appeared with a gun, the
confederates shot and killed both [the husband and wife]. Enmund thereafter drove his
confederates away from the scene and helped dispose of the murder weapons, which were
never found.” (Banks, supra, 61 Cal.4th at p. 799.) There was evidence Enmund had
planned the robbery (Enmund, at p. 803 & fn. 5 (dis. opn. of O’Connor, J.)), but there
was no evidence he was present when the killing occurred or that he participated in a plan
to murder (id. at pp. 786, 795). The high court stated that “the record before us does not
warrant a finding that Enmund had any intention of participating in or facilitating a
murder.” (Id. at p. 798.)
Closer to the other end of the continuum are the Tisons. They “helped plan and
carry out the escape of two convicted murderers from prison—one of whom, Gary Tison,
16
was serving a life sentence for killing a guard in the course of a previous escape.
[Citation.] This entailed their bringing a cache of weapons to prison, arming both
murderers, and holding at gunpoint guards and visitors alike.” (Banks, supra, 61 Cal.4th
at p. 802.) As part of the escape, the Tisons “later participated in stopping and capturing
an ‘innocent family whose fate was then entrusted to the known killers [the Tisons] had
previously armed.’ [Citation.] They robbed the family and held them at gunpoint while
the two murderers deliberated whether the family should live or die, then stood by while
all four members were shot.’ [Citation.] . . . [¶] The Tisons did not assist in a garden-
variety armed robbery, where death might be possible but not probable, but were
substantially involved in a course of conduct that could be found to entail a likelihood of
death; distinguishing Enmund, the Supreme Court said: ‘Far from merely sitting in a car
away from the actual scene of the murders acting as the getaway driver to a robbery, each
petitioner was actively involved in every element of the kidnaping-robbery and was
physically present during the entire sequence of criminal activity culminating in the
murder of the Lyons family and the subsequent flight.’ [Citation.] Unlike the Tisons,
Earl Enmund was just a getaway driver, sitting in a car away from the murders.” (Id. at
pp. 802-803.)
As our high court has noted, the defendants’ conduct in Enmund and Tison “help
define the constitutional limits for punishing accomplices to felony murder. [Citation.]
The defendants’ conduct in those cases represent points on a continuum, a spectrum of
culpability for felony-murder participants. [Citation.] At one end of this Enmund-Tison
continuum is ‘ “the minor actor in an armed robbery, not on the scene, who neither
intended to kill nor was found to have had any culpable mental state.” [Citation.]’
[Citation.] At the other end are the ‘actual killers and those who attempted or intended to
kill. [Citation.]’ [Citation.] ‘Somewhere between them, at conduct less egregious than
the Tisons’ but more culpable than . . . Enmund’s, lies the constitutional minimum’
showing required for the imposition of death or life without the possibility of parole.” (In
17
re Loza (2017) 10 Cal.App.5th 38, 46 (Loza), quoting Banks, supra, 61 Cal.4th at
pp. 800, 802.)
D. Analysis
Defendant would have us evaluate the sufficiency of the evidence here by looking
at the attempted robbery and murder of Luis in isolation, completely detached from the
violent crime spree in which he participated. Instead, we consider the totality of the
circumstances in evaluating a defendant’s placement along the Enmund-Tison continuum.
(Banks, supra, 61 Cal.4th at p. 802; In re Miller (2017) 14 Cal.App.5th 960, 974; Loza,
supra, 10 Cal.App.5th at pp. 48-49.) The totality of the circumstances here does not
merely consist of defendant sitting in a car waiting to drive Gamboa away from the tire
shop after Gamboa attempted to rob, and then murdered, Luis. The totality of the
circumstances here includes the facts surrounding the two confederates’ crime spree, in
particular the events leading up to the murder of Luis, as well as the events that took
place thereafter.
1. Major Participant
To be a major participant, “a defendant’s personal involvement must be
substantial, greater than the actions of an ordinary aider and abettor to an ordinary
felony murder such as Earl Enmund.” (Banks, supra, 61 Cal.4th at p. 802, italics added.)
“The ultimate question pertaining to being a major participant is ‘whether the defendant’s
participation “in criminal activities known to carry a grave risk of death” [citation] was
sufficiently significant to be considered “major.” ’ ” (Clark, supra, 63 Cal.4th at p. 611.)
To assist in determining whether an aider and abettor is a major participant, the Banks
court identified “factors that distinguish the Tisons from Enmund.” (Banks, at p. 803.)
The non-exclusive list of factors includes: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role did the defendant have
in supplying or using lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons used, or past experience or
18
conduct of the other participants? Was the defendant present at the scene of the killing,
in a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death? What did the defendant do after lethal force
was used? No one of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the ultimate question, whether
the defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Ibid., fn. omitted,
italics added.)
We reject defendant’s contention that he “merely sat in a car outside the business
where the shooting occurred and acted as the getaway driver,” and that he was “just the
getaway driver.” Contrary to defendant’s framing, we must consider the “totality of the
circumstances.” (Banks, supra, 61 Cal.4th at p. 802; Loza, supra, 10 Cal.App.5th at
pp. 48-49.) Looking at the totality of the circumstances requires that we not look at this
single event in isolation. And looking at the totality of the circumstances here reveals
defendant was no “ordinary aider and abettor to an ordinary felony murder such as Earl
Enmund.” (Banks, at p. 802, italics added,)
Less than three hours before Gamboa murdered Luis during the attempted robbery
at the tire shop, defendant attempted to rob Victor at gunpoint, and, when defendant faced
resistance, he shot Victor in the head.
Defendant’s attempted murder and attempted robbery of Victor followed very
shortly after the attempted robbery of C.T. and the robbery of Mario, within minutes of
each other. As to Mario, the jury found that defendant personally used a firearm in the
commission of the robbery.
And less than one hour before the murder at the tire shop, defendant robbed Javier
M. at gunpoint. When Javier M. resisted, defendant pulled out a gun, pointed it at Javier
M., and said, “ ‘Do you want to die,’ ” obviously not an idle threat given that defendant
had shot Victor in the head less than three hours earlier.
19
Within three hours of all this activity, Gamboa drove up to Billy Jack’s Tire Shop
with defendant in the passenger seat. Gamboa went inside. Defendant got out of the
passenger seat of the car, got into the driver’s seat, and prepared to make a getaway,
which he did when Gamboa came out. All of this activity places defendant in a far
different league than Earl Edmund. He was not just a getaway driver in a single episode.
He was a major participant in an obvious conspiracy to commit a series of robberies.
And while the evidence establishes that defendant was the gunman for most of these
robberies, as for the attempted robbery and shooting of Luis, it simply appears that
Gamboa took a turn at being the gunman/shooter.
Regarding the Banks major participant factors, although the evidence did not
establish what role defendant played in “planning the criminal enterprise” here that led to
Luis’s murder, that crime was obviously part of an ongoing conspiracy to commit armed
robberies involving defendant and Gamboa, and the evidence establishes that defendant
was a major participant in carrying out that plan. And although defendant did not supply
the weapons, he did play a role in “using lethal weapons.” (Banks, supra, 61 Cal.4th at
p. 803.) Indeed, from the evidence indicating defendant and Gamboa had two guns—a
silver revolver and a black semiautomatic—it can be reasonably inferred that the silver
revolver defendant used to rob Mario and Javier M. and shoot Victor was the same one
Gamboa later used to shoot Luis. Thus, although defendant did not supply the gun, the
evidence indicates he relinquished control of it to Gamboa. Moreover, it can be inferred
from the evidence indicating defendant later used the black semiautomatic firearm, that
he himself was armed with that weapon while sitting in the car outside the tire shop. As
to an awareness of the “particular dangers posed by the nature of the crime” (Banks,
supra, 61 Cal.4th at p. 802), the evidence establishing the totality of the circumstances
leading up to the murder of Luis supports a finding that defendant was clearly aware.
Moreover, in determining major participation our high court instructed that
consideration must be given to what the defendant did after lethal force was used.
20
(Banks, supra, 61 Cal.4th at p. 802.) Here, not only did defendant drive Gamboa away,
but unfazed by any of the afternoon’s events, he and Gamboa continued their crime spree
after Luis was murdered. Approximately two hours later, together they robbed Saul,
Jesus, and Fernando at the taco truck, both defendants brandishing guns during that
episode. Approximately one hour later, defendant robbed Martha of her necklaces at
gunpoint, yanking the chains off of Martha by force and saying, “ ‘You think I’m
playing.’ ” Less than four hours after Gamboa murdered Luis, the evidence establishes
that defendant murdered Javier by shooting him in the back as Javier held his hands up in
surrender and begged defendant not to kill him. And, without elaborating further,
defendant and Gamboa continued their crime spree the next day. From the evidence of
defendant’s major participation after lethal force was used by Gamboa to kill Luis, we
can infer that he was a major participant in the crimes committed against Luis.
Thus, contrary to defendant’s perspective, in our view, defendant’s conduct during
the crime spree with Gamboa is relevant when considering the totality of the
circumstances. The evidence related to the crimes committed before and after Luis was
killed establishes defendant’s and Gamboa’s plans to engage in the robberies together,
both as major participants. In addition, their conduct demonstrates their shared intent as
to how to handle perceived resistance.
As our high court noted, no one of the factors it listed in Banks is necessary; nor is
the list exclusive. (Banks, supra, 61 Cal.4th at p. 802.) “The ultimate question pertaining
to being a major participant is ‘whether the defendant’s participation “in criminal
activities known to carry a grave risk of death” [citation] was sufficiently significant to be
considered “major.” ’ ” (Clark, supra, 63 Cal.4th at p. 611.) Based on consideration of
the totality of the circumstances, we conclude that defendant was indeed a major
participant in the attempted robbery and murder of Luis.
21
2. Reckless Indifference to Human Life
Our high court has adopted the Model Penal Code definition of reckless
indifference, which requires that the defendant “consciously disregard[] a substantial and
unjustifiable risk” of death and that the risk “be of such a nature and degree that,
considering the nature and purpose of the actor’s conduct and the circumstances known
to him [or her], its disregard involves a gross deviation from the standard of conduct that
a law-abiding person would observe in the actor’s situation.” (Clark, supra, 63 Cal.4th at
pp. 617, 622. italics added.) This definition recognizes that, in addition to the subjective
element of reckless indifference, there is also an objective element. (Ibid.)
“[R]ecklessness is not determined merely by reference to a defendant’s subjective feeling
that he or she is engaging in risky activities. Rather, recklessness is also determined by
an objective standard, namely what ‘a law-abiding person would observe in the actor’s
situation.’ ” (Id. at p. 617.)
Acknowledging overlap between the major participant and reckless indifference
elements (Clark, supra, 63 Cal.4th at pp. 614-615), our high court considered a number
of factors in determining whether the evidence is sufficient to establish reckless
indifference: (1) knowledge of weapons, and use and number of weapons; (2) physical
presence at the crime and opportunities to restrain the crime and/or aid the victim; (3)
duration of the felony; (4) defendant’s knowledge of cohort’s likelihood of killing; and
(5) defendant’s efforts to minimize the risks of the violence during the felony. (Id. at
pp. 618-623.) As with the major participant factors, “ ‘[n]o one of these considerations is
necessary, nor is any one of them necessarily sufficient.’ ” (Id. at p. 618, italics added.)
We conclude the evidence here supported a finding of reckless indifference. We
first note that this case is different from Clark, where there was only one gun at the scene
and it was not supposed to be loaded (Clark, supra, 63 Cal.4th at pp. 621-622), and from
Scoggins, where none of the perpetrators were supposed to be armed (Scoggins, supra, 9
Cal.5th at pp. 671, 679, 682, 683). Here, the evidence established that both defendant
22
and Gamboa were armed with guns and defendant knew Gamboa had a firearm when he
went into the tire shop. While not sufficient of itself in determining reckless indifference,
the aider and abettor’s awareness that a firearm will be used in the commission of the
underlying felony is nevertheless significant. (Clark, at p. 618.) Further, as the court in
Clark noted, “[a] defendant’s knowledge of factors bearing on a cohort’s likelihood of
killing are significant to the analysis of reckless indifference to human life.” (Id. at
p. 621.) Here, although there is no direct evidence that defendant knew Gamboa had a
propensity to kill, given that defendant himself had just shot someone in the head in this
ongoing conspiracy with Gamboa to commit robberies, it can be reasonably inferred that
defendant knew his older confederate would be willing to resort to the same levels of
violence, especially if met with perceived resistance. Additionally, the trial record makes
clear defendant did not try to “restrain the crime” or minimize the risks of violence in the
commission of the attempted robbery; nor is there even any evidence that defendant
would have been inclined to do so. To the contrary, his conduct before and after Luis
was killed showed defendant was all in for the violence. Indeed, his conduct involving
similar crimes establishes subjective reckless indifference to human life in much the same
way as other crimes evidence can establish intent or knowledge under Evidence Code
section 1101, subdivision (b). (See People v. Lindberg (2008) 45 Cal.4th 1, 24-25
[“Under the totality of the circumstances,” evidence of uncharged robberies admissible to
prove intent for charged attempted robbery]; People v. Hendrix (2013) 214 Cal.App.4th
216, 242 [requisite knowledge can be inferred from experience gained in prior similar
events; people learn from their experiences and knowledge gained from such experiences
can be retained and recalled in the future].)
With regard to the objective component of reckless indifference, the Clark court
noted: “under the Model Penal Code definition, although the presence of some degree of
defendant’s subjective awareness of taking a risk is required, it is the jury’s objective
determination that ultimately determines recklessness. . . . [A] defendant’s good faith but
23
unreasonable belief that he or she was not posing a risk to human life in pursuing the
felony does not suffice to foreclose a determination of reckless indifference to human life
under Tison.” (Clark, supra, 63 Cal.4th at p. 622, italics added.) Here, defendant does
not assert that he had a good faith belief there would be no lethal violence and there is no
evidence from which a jury could objectively find he did. Substantial evidence supports
the jury’s objective determination that defendant acted with reckless indifference to
human life during the course of the crime spree leading up to and during the attempted
robbery and murder of Luis, and indeed, he continued to do so thereafter.
3. Major Participant/Reckless Indifference to Human Life Conclusion
In considering whether there is substantial evidence of Tison liability, reviewing
courts must not become so focused on the Banks/Clark factors that they lose sight of the
substantial evidence standard of review. We review the entire record in the light most
favorable to the judgment. (Clark, supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th
at p. 804; Jennings, supra, 50 Cal.4th at pp. 638-639.) In doing so, we ignore competing
inferences that could lead to a contrary conclusion. “If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (Jennings, at pp. 638-639.) As we have noted, “ ‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (Penunuri, supra, 5
Cal.5th at p. 142.) Given the totality of the circumstances here, substantial evidence
supports the conclusion that defendant was a major participant who acted with reckless
disregard for human life when Gamboa killed Luis.
II. Senate Bill No. 1437
Defendant asserts that, for the same reasons he advanced in part I. of the
Discussion, ante, the evidence is insufficient to support his conviction of the murder of
Luis because the crime of felony murder has been redefined by Senate Bill No. 1437
24
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). 12 He also asserts that
Senate Bill 1437 should be given retroactive application under the rule in In re Estrada
(1965) 63 Cal.2d 740.
While this case was pending on appeal, our high court decided People v. Gentile
(2020) 10 Cal.5th 830 (Gentile), which addressed the question of retroactive application
of Senate Bill 1437. There, our high court held: “the procedure set forth in section
1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative
provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct appeal.”
(Gentile, at p. 839.) Accordingly, defendant must file a section 1170.95 petition in the
trial court if he wants to seek relief under Senate Bill 1437.
III. Substantial Evidence - Attempted Robbery and Murder of Javier R.
A. Additional Background
In closing arguments, the prosecutor elaborated on his theory concerning the
killing of Javier R. It was the prosecutor’s theory that defendant initially attempted to rob
Javier R. in the parking lot of Corona Liquors. He asserted that, when Javier R. “didn’t
give it up fast enough, they followed him, and [defendant] got out of the car and told him
he would kill him, and then he shot him in the back as Javier [R.] stood there with his
hands raised surrendering.” The prosecutor argued to the jury: “Did the suspect attempt
to rob Javier [R.]? We’re going to get really deep into this later when we talk about ID.But all this pattern, the video from the first one is around 3:00 . . . , the video from Sufi
Market with Martha . . . and the video from Sonora and Main at that Corona Liquors store
which we’re going to watch. And this proximity to . . . East Sonora. And the threats to
kill the other robbery victims. ‘Do you think I’m playing? Do you want me to kill you?’
You know that they tried to rob Javier [R.] and then they killed him.”
12Given our high court’s holding in Gentile, we need not grant defendant’s request that
we take judicial notice of certain legislative history of Senate Bill 1437.
25
The prosecutor further argued: “The time line. Martha . . . was robbed by
[defendant] at Sufi Market at approximately 9:22 p.m., and then you have video of Main
and Sonora that shows the car leave [Corona] liquor store lot at 9:28:13.” He argued that
where Javier R. was killed was “two blocks away maybe.” Describing what can be seen
on the surveillance video, People’s exhibit 197, he continued: “You see this car cross
Main Street, pull in. You see on the map it’s a little parking lot, that taco place. Turn
around, come out, stop in the lane of traffic, and then go around and into the parking lot,
stopping by a market, trolling for victims. It’s an unusual amount of time to stop in a
lane of traffic there. [¶] This isn’t the clearest video, but you can see the general type of
car, the general color, and you can see that car back into that spot. Look at that. Pretty
consistent with that car from the Sufi Market video, the one that [Alcauter] said was my
car. [¶] Watch the passenger get out with a white shirt approach the van here, and
there’s going to be someone on foot here. Instead, the van goes around, so there’s no one
in the van. The driver of the van wasn’t there. You can watch the video. He’s going to
approach that person on foot. Watch the exchange. Look at the body position of that
person in the white shirt who had got out of the car. [¶] Watch these two. Standing with
some separation, I would submit to you that the person in the white shirt had arms
outstretched. Then the other person who ran off in this direction towards East Sonora
Street goes back to the van. That person in the white shirt and the person in the car starts
to pull away. Look at that car. Hops in the car and goes out the back parking lot and
takes a right onto Marsh Street. At 9:28:13 they’re off camera. [¶] . . . [¶] Just to remind
you, 9:28:13 out here and to the right, the first 911 call recording the shots fired that
killed Javier . . . was at 9:30. You heard that. You heard that call. You saw that
transcript. [¶] How long does it take to go two blocks, get out of the car, tell Javier [R.] ,
‘I told you I was going to kill you,’ and then shoot him? I submit to you, the person you
saw run away from Corona Liquors is Javier R. That’s why they killed him.”
26
During the investigation, D.S., who had witnessed the shooting of Javier R.,
identified Gamboa in a photo lineup as the shooter. She told officers that she had seen
someone on the news whom she recognized as the shooter and it was the older of the
suspects in the news story. D.S. also identified Gamboa at trial as the person she earlier
identified in a photo lineup.
However, Maria told police that it was the younger of the suspects she saw on
television that did the shooting. Maria testified that, on the news program, she saw
images of defendant, Gamboa, and a female.
The prosecutor argued that D.S.’s identification of Gamboa as the shooter was
mistaken and not credible. He emphasized that D.S. picked Gamboa from a lineup after
seeing a news broadcast.
B. Defendant’s Contentions
Defendant asserts that the robbery-murder special circumstance, attempted
robbery conviction, and personal discharge of a firearm causing death enhancement as to
Javier R. must be struck, because the evidence was insufficient to prove that he attempted
to rob Javier R., or that he was the shooter. Defendant asserts that no witness testified
that they observed an attempt to rob Javier R. Defendant further asserts that the
prosecutor’s contentions in his closing argument were speculation because no one
identified the person running away from Corona Liquors as Javier R. With regard to the
firearm enhancement, defendant emphasizes that D.S. identified Gamboa as the shooter.
He thus asserts the evidence was insufficient to prove that he was the person who shot
Javier R. Defendant concedes the evidence is sufficient to support his murder conviction
“since there was sufficient evidence he aided and abetted the shooting,” but asserts that,
in the absence of sufficient proof of the identity of the shooter, the firearm enhancement
must be struck.
27
C. Analysis
Defendant effectively concedes that either he or Gamboa killed Javier. However,
he maintains that it cannot be established whether he or Gamboa was the actual shooter,
and the evidence does not establish an attempted robbery. We disagree. The
circumstantial evidence establishes that defendant and Gamboa were engaged in multiple
robberies and that Javier R. was another one of their victims. Moreover, the firearms
evidence and Maria’s testimony provide sufficient evidence supporting the conclusion
that defendant was the shooter.
Martha was robbed by defendant at the Sufi Market less than 10 minutes before
Javier R. was shot and killed. Defendant was wearing a white shirt and used a black gun.
D.S., Maria, and A.R. all testified that the gun used by the person who shot Javier was
black. The prosecution’s firearms and tool mark expert testified that the two cartridge
casings recovered from the scene were fired from a black Glock Model 22. The loaded
black Glock Model 22 had been recovered by police from a backpack that defendant
dropped when police were pursuing him nine days after Javier R. was murdered.
Additionally, Maria testified that it was a “kid” who got out of the car and shot
Javier R. She estimated the “kid” to be 16 years old. Defendant was 16 years old when
Javier was killed. It is undisputed that defendant was several years younger than
Gamboa.
People’s exhibit 197, the city surveillance video recorded near Main and Sonora
Streets, shows a vehicle comes into the frame across Main Street from the Corona Liquor
store. 13 The vehicle crosses the four lanes of traffic and then pauses for approximately
15 seconds situated perpendicular in the right lane of traffic on Main Street. It then
preceded onto the street to the side of the store. After the car passes out of view,
13 The video quality is poor. We have carefully reviewed it multiple times to ascertain
the movements we describe herein.
28
obstructed by the liquor store, it reappears behind the store, turning right and into the
store’s parking lot. The car pulls to the front of the parking lot, and then reverses into a
parking space adjacent to the store. An individual wearing a white shirt and dark pants
immediately exits the front passenger side of the car (the passenger), walks around the
back of the car toward a parked van, and looks into the van on the driver’s side and then
the passenger’s side. As the passenger proceeds from the driver’s side of the van to the
passenger side, an individual wearing a darker shirt enters the rear of the parking lot on
foot walking toward Main Street. As he approaches the rear of the van, he appears to
suddenly dart several steps to his left, away from the van and where the passenger was
located. Immediately, the passenger emerges from where he had been at the passenger
side of the van, approaching the other individual. The two individuals approach and face
one another. The passenger then abruptly takes a step forward, closing the distance
between the two, and appears to have an arm raised, perpendicular to his body, pointed at
the other individual. The passenger appears to bend his knees or crouch down a bit and
he backs up a step or two with an arm still pointed at the other individual. At that time,
another individual approaches the white van and opens the driver’s door. As he does so,
the driver of the vehicle from which the passenger had emerged, who also appears to be
wearing a white shirt (the driver), gets out of the car and approaches the person who
opened the driver’s door of the van as that person gets into the van. The driver appears to
have his arm raised and pointed at the person getting into the van. Meanwhile, the
passenger and the individual with the darker shirt remain in place facing each other, the
passenger appearing to rock a bit. The driver makes several abrupt movements at the
driver’s door of the van, and, after one such movement, the passenger takes two very
quick steps back towards the van. At this time, the passenger and the individual with the
dark shirt appear to begin to circle each other, moving back and forth. It appears that the
passenger’s attention is suddenly directed elsewhere briefly, seemingly at the action
happening at the driver’s door of the van, and at that moment, the individual with the
29
darker shirt runs away and out of the parking lot. The passenger appears to pursue him to
the edge of the parking lot as the driver leaves the driver’s door of the van and returns to
the car. The passenger then runs back toward the van, stops at the rear of the van, goes to
the now-closed driver’s door of the van briefly, and then runs to the car as the driver
begins to drive the car away. The passenger enters the car through the driver’s-side rear
door, and the car drives off in the same direction as the individual with the dark shirt fled.
During deliberations, the jury asked to view People’s exhibit 197 twice, on
consecutive days. On the second occasion, the jury asked: “ ‘May we please review the
video of Corona Market again and be able to pause and rewind it at certain points?’ ”
The court had the video played, and it was paused and replayed as directed by the jury
foreperson.
Detective Asklof identified the location of the Sufi Market, where Martha was
robbed earlier, and Corona Liquors, on People’s exhibit 40, an aerial map of the area, and
People’s exhibit 41, a closeup of that aerial map. Asklof also testified that Corona
Liquors appeared on the map near East Sonora Street. The prosecutor in closing noted
that exhibit 41 “shows you the relationship between Sufi Market, Corona Liquors and
East Sonora Street.” Sufi Market, where Martha was robbed at roughly 9:22 p.m., is
approximately eight blocks north of Corona Liquors. The location on East Sonora Street
where Javier R. was shot at approximately 9:30 p.m., appears to be roughly three blocks
to the west of Corona Liquors. When he was shot on East Sonora Street, Javier was
walking east to west (see fn. 10), the direction he would have went had he come from the
direction of Corona Liquors. The vehicle in which defendant and Gamboa were driving
was traveling in the same direction.
30
Defendant concedes that both he and Gamboa wore white shirts when Javier was
killed. 14
Just before Javier R. was shot, A.R. heard someone say, “ ‘I told you I was going
to kill you.’ ” An obvious inference the jury could make from this is that the shooter
previously, even recently, threatened to kill Javier R. Such a threat would have been
consistent with previous threats defendant had made earlier that day to other robbery
victims.
Viewing the evidence in the light most favorable to the prosecution, we conclude
that a rational trier of fact could have found the elements of the crime of attempted
robbery of Javier R., the robbery-murder special circumstance, and the firearm
enhancement beyond a reasonable doubt. The evidence marshaled ante is sufficient for
the jury to have concluded that defendant got out of the car Gamboa was driving at
Corona Liquors and attempted to rob Javier R. in the parking lot; that Javier R. ran away
in the direction of East Sonora Street; that defendant got into the car and Gamboa drove
off in the same direction as Javier R. fled on foot; that approximately two minutes later,
defendant, who at 16 years old looked like a “kid” and who was wearing the white shirt
he was wearing when he robbed Martha and minutes later at Corona Liquors, got out of
the car Gamboa was still driving as he had been driving when defendant robbed Martha
earlier; that defendant, affronted, said to Javier R., who had thwarted defendant’s robbery
attempt in the Corona Liquors parking lot, “ ‘I told you I was going to kill you’ ”; that
defendant then pulled out the same black semiautomatic handgun he had used in robbing
14 Gilberto testified that the person who shot Luis, Gamboa, was wearing a white shirt.
Victor in his 911 call said that the person who shot him, defendant, was wearing a white
shirt. Defendant, as seen on the video at Sufi Market showing his robbery of Martha less
than 10 minutes before the incidents at Corona Liquors and the subsequent shooting of
Javier R., was wearing a white shirt and dark pants. Both the driver and passenger in the
car depicted in the Corona Liquors video, People’s exhibit 197, were wearing white shirts
and dark pants.
31
Martha less than 10 minutes earlier; and aimed the gun and shot Javier R. in the back.
This evidence, combined with the evidence establishing a pattern of robberies and the
evidence establishing that the gun used to kill Javier R. was found in the backpack
defendant was carrying and discarded when fleeing the police nine days later, was
sufficient to establish both that defendant attempted to rob Javier R., and that defendant
personally shot and killed Javier R. Contrary to defendant’s contentions, this conclusion
does not amount to speculation, but instead is based on the evidence and reasonable
inferences to be drawn therefrom. Given the evidence and the reasonable inferences, this
is not a case where “ ‘ “ ‘‘upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142, italics
added.) Consequently, reversal for insufficient evidence is “unwarranted.” (Ibid.)
IV. Section 654
A. Additional Background and Defendant’s Contentions
Regarding the crimes committed against Luis, the trial court sentenced defendant
to the following consecutive terms: life without the possibility of parole on count one,
first degree murder, and 8 months on count 2, attempted robbery.
As for the crimes committed against Victor, the trial court sentenced defendant to
the following consecutive terms: 7 years to life on count 6, attempted premeditated
murder, plus 25 years to life for the firearms enhancement; 8 years on count 8, mayhem,
plus 25 years to life for the firearm enhancement; and 8 months on count 7, attempted
robbery, plus 25 years to life for the firearms enhancement.
Defendant asserts that the actions giving rise to his murder conviction (count 1),
robbery-murder special circumstance, and attempted robbery conviction (count 2)
involving Luis as the victim were all committed with one intent and objective—the
robbery of Luis. He contends that, because the attempted robbery of Luis had no separate
intent or objective from the murder (and the robbery-murder special circumstance), the
sentence on that attempted robbery conviction must be stayed pursuant to section 654.
32
Defendant also asserts that the mayhem (count 8), attempted robbery (count 7),
and attempted murder (count 6) convictions involving Victor were based on the same
objective. Therefore, defendant asserts that the sentences imposed on the attempted
robbery and mayhem convictions, and the sentences for the associated personal use of a
firearm causing great bodily injury enhancement, must be stayed pursuant to section 654.
We agree as to count 8, mayhem, and the associated firearm enhancement, but
reject defendant’s other section 654 contentions.
B. Section 654 Principles
Section 654, subdivision (a), provides in part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
“Section 654 precludes multiple punishments for a single act or indivisible course of
conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “ ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331,
336.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which
were independent of and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’ ”
(People v. Harrison (1989) 48 Cal.3d 321, 335.)
Where the trial court makes no express section 654 findings, we consider whether
substantial evidence supports an implied finding of separate intent and objective. (People
v. Islas (2012) 210 Cal.App.4th 116, 129.) An implied finding that there was more than
one objective is a factual determination that must be sustained on appeal if it is supported
33
by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) And “ ‘[w]e
review the court’s determination of [a defendant’s] “separate intents” for sufficient
evidence in a light most favorable to the judgment, and presume in support of the court’s
conclusion the existence of every fact the trier of fact could reasonably deduce from the
evidence. [Citation.]’ [Citation.]” (People v. Andra (2007) 156 Cal.App.4th 638, 640-
641.)
C. Attempted Robbery and Murder of Luis Z.
The cases upon which defendant relies support the premise that, where the record
contains no evidence to support a finding that the murder was committed with an intent
separate from that required for an underlying felony, section 654 precludes punishment
for both the murder and the underlying felony. (People v. Hensley (2014) 59 Cal.4th 788,
828 ( Hensley) [“The evidence does not suggest an intent or objective for the shooting
other than to facilitate the robbery”]; People v. Mulqueen (1970) 9 Cal.App.3d 532, 547
[“It . . . is clear from the record here that there was but one act and that the act of robbery
was the act which made the homicide first degree murder”].) And “[w]here a defendant
is prosecuted solely on a theory of first degree felony murder, section 654 precludes
punishment for both murder and the underlying felony. [Citation.] However, if the
prosecution presents alternative theories—such as premeditation and felony murder—and
there is evidence supporting a finding that the murder was premeditated, then the trial
court may properly impose a sentence for both the murder and the felony.” (People v.
Carter (2019) 34 Cal.App.5th 831, 841.)
Here, the jury was presented with both premeditation and felony murder as
alternative theories regarding count 1, and, contrary to defendant’s contention in his reply
brief, the prosecutor did make arguments addressed to premeditated murder with regard
to Luis. Moreover, there was evidence supporting the theory of premeditation.
Alcauter testified that, earlier that day, defendant texted her to load his gun, which
she did. Less than three hours prior to Gamboa’s entry into the tire shop, his confederate,
34
defendant, shot Victor in the head in the commission of an attempted robbery,
demonstrating the pair’s plan to engage in such violence when met with perceived
resistance or noncompliance. Gamboa entered the tire shop brandishing a gun and
demanded money. Luis told Gamboa to hold on and reached to his pocket to get money.
And yet, instead of waiting to accept the money Luis was apparently retrieving, Gamboa
just shot him. Gamboa then left without taking any money or property. Gamboa’s
shooting of Luis was not in furtherance of or to facilitate a robbery; indeed, Gamboa’s
murder of Luis actually thwarted the robbery. By shooting Luis, Gamboa prevented Luis
from handing over money. At some point, Gamboa told Alcauter that “he didn’t want to
give it up so [Gamboa] shot him.”
The prosecutor argued that Alcauter’s testimony demonstrated that the murder of
Luis was premeditated: “It’s more evidence that it wasn’t just an accident, the gun didn’t
just go off. He didn’t drop it. It wasn’t accidental or negligent. . . . Gamboa shot [Luis]
because he didn’t give it up. That was a conscious choice. He didn’t give it up fast
enough, so he shot him. It means he’s guilty of first-degree murder as felony murder or
as willful, premeditated, deliberate murder.” (Italics added.) The evidence supports the
conclusion that Gamboa developed the separate intent to kill Luis and shot him as a
deliberate and premeditated choice to punish him for not complying fast enough.
Thus, looking at the evidence in a light most favorable to the judgment, the
evidence suggests an intent or objective for the shooting other than to facilitate the
robbery. (Cf., Hensley, supra, 59 Cal.4th at p. 828 [evidence did not suggest an intent or
objective for the shooting other than to facilitate the robbery].) Because there is
substantial evidence that Gamboa had more than one objective when he committed the
crimes against Luis – larceny and then punishment for perceived non-compliance – the
trial court did not err by imposing a consecutive sentence on count 2.
35
D. Attempted Robbery, Attempted Murder, and Mayhem Involving Victor D.R.
As with Luis’s murder, the evidence supports the conclusion that defendant had an
intent or objective for the shooting of Victor other than to facilitate a robbery. The trial
evidence established defendant said to Victor, “ ‘Hey, let me see that phone.’ ” Victor
turned around and noticed defendant was holding a gun close to Victor’s face. Victor
shook his head and continued to walk. Just when Victor looked over his shoulder to see
if defendant was walking away, he heard a loud pop and felt something “really, really
terrible.”
Defendant shot Victor in the head, and the evidence supports the conclusion that
the shooting was a gratuitous act of violence undertaken when Victor displayed the
temerity to disregard defendant’s demands. (See, e.g., People v. Cleveland (2001) 87
Cal.App.4th 263, 271-272 (Cleveland) [attempted murder can, under some
circumstances, constitute the force necessary to commit a robbery, however, at some
point the means to achieve an objective may become so extreme they can no longer be
termed incidental; section 654 cannot be stretched to cover gratuitous violence far beyond
that reasonably necessary to accomplish the original offense].) Indeed, after he shot
Victor, defendant did not thereafter attempt to take the phone or any other property from
Victor. Thus, the evidence supports the inference that after Victor shook his head to
indicate he would not hand over his phone, defendant’s objective of attempting to rob
him ended (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300), and the
shooting was for the purpose of avenging the failure to comply with defendant’s demand.
(Id. at pp. 1299-1300.) Accordingly, neither the mayhem nor the attempted murder can
be viewed as merely incidental to the attempted robbery. (See Cleveland, at p. 272.)
Because there is substantial evidence that defendant had different objectives when he
attempted to rob Victor and then shot him in the head, the trial court did not err by
imposing consecutive sentences on counts 6 and 7.
36
We reach a different result as to the sentences imposed on counts 6 (attempted
murder) and 8 (mayhem). Both convictions were based on defendant shooting Victor a
single time in the head. As the appellate court stated in the case on which defendant
principally relies: “We agree with defendant that under section 654, he may not be
punished for both the attempted murder and mayhem counts. . . . The offenses were both
based on the shooting of [the victim]. . . . [T]he three shots were fired within seconds of
each other, and formed one transaction. There was no evidence defendant had
independent objectives for the two crimes that would justify multiple punishment. In the
circumstances, the sentence for the mayhem count should have been stayed.” (People v.
Bui (2011) 192 Cal.App.4th 1002, 1015, fn. omitted.) The same holds true here. As we
have observed, the evidence supports the inference that defendant gratuitously shot
Victor as an act of punishment for failing to comply with his demand. Accordingly,
execution of the sentences imposed on count 8 and the associated firearm use
enhancement must be stayed pursuant to section 654.
V. Section 1202.4, Subdivision (l) Administrative Fee
A. Additional Background and the Parties’ Contentions
The minute order memorializing sentencing and the abstract of judgment both
reflect the imposition of a $1,000 administrative fee. However, the trial court, in orally
pronouncing sentence, did not orally impose this fee. In his opening brief, defendant
asserts that it is the court’s oral pronouncement of sentence that controls and since the fee
was not orally imposed, it must be struck.
The Attorney General asserts that the fee was authorized under section 1202.4,
subdivision (l). That section provides: “At its discretion, the board of supervisors of a
county may impose a fee to cover the actual administrative cost of collecting the
restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to
the restitution fine and included in the order of the court.” The Attorney General asserts
that, once the board of supervisors has exercised its discretion to impose the fee, the court
37
is statutorily obligated to impose it, and a trial court’s failure to impose a mandatory fee
would constitute an unauthorized sentence.
In reply, defendant asserts that, because he has been sentenced to state prison, the
California Department of Corrections and Rehabilitation (CDCR) will collect restitution
from him pursuant to section 2085.5, 15 and thus the county will incur no costs in doing
so. According to defendant, because section 1202.4, subdivision (l), only authorizes the
county to add a fee to the restitution fine “to cover the actual administrative cost of
colleting the restitution fine,” under these circumstances, the statute does not authorize
the administrative fee, and allowing the fee to stand would unfairly double the fee
because CDCR will add its own administrative fee. Thus, defendant maintains that the
administrative fee is unauthorized. We disagree.
B. Analysis
In a case involving a state prison sentence, this court held that the trial court did
not err by imposing 10 percent administrative fee in section 1202.4 subdivision (l).
(People v. Robertson (2009) 174 Cal.App.4th 206, 211.) The panel did not elaborate on
why the fee must be imposed on a person sentenced to state prison. In responding to
defendant’s contention here, we explain why.
First, defendant’s position is based on the erroneous assumption that every state
prisoner will have a prison job with wages or a prisoner trust account from which a
15 At the time of the charged offenses, section 2085.5, subdivision (a), provided, in
pertinent part: “In any case in which a prisoner owes a restitution fine imposed pursuant
to . . . subdivision (b) of Section 1202.4, the Secretary of the Department of Corrections
and Rehabilitation shall deduct a minimum of 20 percent or the balance owing on the fine
amount, whichever is less, up to a maximum of 50 percent from the wages and trust
account deposits of a prisoner, unless prohibited by federal law, and shall transfer that
amount to the California Victim Compensation and Government Claims Board for
deposit in the Restitution Fund in the State Treasury. The amount deducted shall be
credited against the amount owing on the fine.” (§ 2085.5, former subd. (a), italics
added.)
38
restitution fine can be deducted pursuant to section 2085.5. This is not necessarily the
case. For example, a prisoner’s misbehavior may render him or her ineligible for a prison
job and funds might not be deposited into a trust account. The county may have to
collect the fine from other sources, incurring expenses as a result.
Second, even if a defendant does obtain a prison job or deposits money into a trust
account, the county is not barred from attempting to collect the fine from other sources
just because some contribution to the payment of the fine might be made from prison
earnings or the trust account.
Third, nothing in the statutory scheme can be interpreted to preclude a trial court
from imposing the 10 percent administrative fee pursuant to section 1202.4, subdivision
(l), when a defendant is sentenced to state prison. Nor is there anything in the statutory
scheme that even remotely suggests the administrative fees imposed by the CDCR
pursuant to section 2085.5, subdivision (a), and the county pursuant to section 1202.4,
subdivision (l), are mutually exclusive, or that the county will necessarily be uninvolved
in collecting defendant's restitution fine because he has been sentenced to prison. To the
contrary, the plain language of section 1202.4, subdivision (l) requires that the fee “be
added to the restitution fine and included in the order of the court.” We apply the plain
language when interpreting this statute. (People v. Lucero (2019) 41 Cal.App.5th 370,
394-395, quoting People v. Arias (2008) 45 Cal.4th 169, 177 [“The statute’s plain
meaning controls the court’s interpretation unless its words are ambiguous”].) We will
not read a prison sentence exception into the statute’s requirement. (Sustainability,
Parks, Recycling & Wildlife Defense Fund v. Department of Resources Recycling &
Recovery (2019) 34 Cal.App.5th 676, 702 [“ ‘we should not read statutes to omit
expressed language or include omitted language’ ”].)
Fourth, defendant’s argument overlooks the fact that, if a county board of
supervisors has elected to impose an administrative fee to offset the costs of collecting a
restitution fine pursuant to section 1202.4, subdivision (l), that section provides that the
39
fee is to be attached to the defendant’s restitution fine at the time of sentencing. 16 This
necessarily precedes the county incurring any collection costs as to that particular
defendant’s fine. The statute does not require proof that the county will incur collection
costs before the fee is imposed. Thus, the statute is not focused on a defendant’s actual
circumstances relative to how restitution is collected or the actual amount a county may
ultimately incur in collecting that fine after imposition of the fee.
A trial court’s failure to add a mandatory administrative fee results in an
unauthorized sentence subject to correction on appeal. (See People v. Talibdeen (2002)
27 Cal.4th 1151, 1157.) “[O]bvious legal errors at sentencing that are correctable without
referring to factual findings in the record or remanding for further findings are not
waivable.” (People v. Smith (2001) 24 Cal.4th 849, 852 [imposition of a parole
revocation fine that was less than the imposed restitution fine could be corrected on
appeal even though no objection at sentencing].) Accordingly, we shall modify the oral
imposition of sentence to reflect the imposition of this $1,000 collection fee pursuant to
section 1202.4, subdivision (l).
VI. Parole Revocation Fine
The trial court imposed a $10,000 parole revocation fine pursuant to section
1202.45, which the court ordered suspended unless parole was revoked. Section 1202.45,
subdivision (a), provides: “In every case where a person is convicted of a crime and his
or her sentence includes a period of parole, the court shall, at the time of imposing the
restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole
revocation restitution fine in the same amount as that imposed pursuant to subdivision (b)
16 Defendant does not assert that San Joaquin County’s Board of Supervisors has not
imposed an administrative fee of 10 percent to cover its administrative cost of collecting
restitution fines pursuant to section 1202.4, subdivision (l) and there is no indication that
the county has not done so.
40
of Section 1202.4.” This fine “shall be suspended unless the person’s parole . . . is
revoked.” (§ 1202.45, subd. (c).)
Defendant asserts that, given the nature of the sentence imposed, there is no parole
eligibility and thus the trial court’s imposition of a parole revocation fine pursuant to
section 1202.45 was unlawful and should be struck. The Attorney General agrees that the
parole revocation fine should be struck in light of defendant’s LWOP sentence. We
disagree and do not accept the Attorney General’s concession.
“A parole revocation fine may not be imposed for a term of life in prison without
possibility of parole, as the statute is expressly inapplicable where there is no period of
parole.” (People v. Jenkins (2006) 140 Cal.App.4th 805, 819 (Jenkins).) However, in
addition to his LWOP sentences, defendant also received multiple unstayed determinate
prison terms. All such determinate terms “shall include a period of parole” under section
3000, subdivision (a)(1). (People v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure).)
The court in Brasure upheld imposition of a section 1202.45 parole revocation fine where
the defendant was sentenced to death and to determine prison terms under section 1170.
(Brasure, at p. 1075.) Under Brasure’s interpretation of the relevant Penal Code
provisions, the trial court properly imposed a parole revocation fine here.
Defendant relies on Jenkins, supra, 140 Cal.App.4th 805, and People v.
Oganesyan (1999) 70 Cal.App.4th 1178, for the proposition that a parole revocation fine
may not be imposed for an LWOP term because section 1202.45 is expressly inapplicable
where there is no period of parole. However, defendant does not acknowledge our high
court’s more recent decision in Brasure. The rationale in Brasure applies here, where the
trial court imposed numerous determinate terms. Moreover, we note that defendant “is in
no way prejudiced by assessment of the fine, which will become payable only if he
actually does begin serving a period of parole and his parole is revoked.” (Brasure,
supra, 42 Cal.4th at p. 1075.)
41
DISPOSITION
The judgment is modified (1) to stay execution of the sentences imposed on count
8 and the associated firearm use enhancement pursuant to section 654, and (2) impose a
$1,000 collection fee pursuant to section 1202.4, subdivision (l) not stated in the oral
imposition of sentence. As so modified, the judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment indicating the section 654 stay on
count 8 and the associated firearm use enhancement and forward a certified copy of the
abstract to the Department of Corrections and Rehabilitation.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
ROBIE, J.
42