The People v. Sotelo CA2/3

Filed 10/2/13 P. v. Sotelo CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B233791
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA060882)
v.
MARTIN SOTELO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Martin L. Herscovitz, Judge. Modified and, as modified, affirmed with directions.
Valorie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Martin Sotelo appeals from the judgment entered following his
convictions by jury on count 1 – first degree murder (Pen. Code, § 187) with a principal
personally and intentionally discharging a firearm causing death (Pen. Code, § 12022.53,
subds. (d) & (e)(1)), and with special circumstances he committed the murder because of
the victim’s race (Pen. Code, § 190.2, subd. (a)(16)) and by discharging a firearm from a
motor vehicle (Pen. Code, § 190.2, subd. (a)(21)), count 2 – evading an officer with
willful disregard (Veh. Code, § 2800.2, subd. (a)), and count 3 – attempted second degree
robbery (Pen. Code, §§ 664, 211)1 with a principal personally using a firearm (Pen. Code,
§ 12022.53, subds. (b) & (e)(1)), with, as to counts 2 and 3, a principal personally armed
with a firearm (Pen. Code, § 12022, subd. (a)(1)) and, as to each of counts 1 through 3, a
finding he committed the offense for the benefit of, at the direction of, and in association
with, a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced
appellant to prison for life without the possibility of parole, plus 42 years to life. We
modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
1. People’s Evidence.
a. The Attempted Second Degree Robbery of Belmonte (Count 3).
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal. 4th 1199, 1206), the evidence, the sufficiency of which as to the attempted robbery
is undisputed, established that about 8:00 p.m. on December 22, 2008, appellant was
driving a car containing Richard Bordelon, Kevin Rodriguez, and Deborah Blanco.
Appellant drove up to Danielle Belmonte near Lurline and Strathern in Canoga Park.
1
In the amended information, count 1 was the attempted second degree robbery and
the murder was count 4. During trial, the court renumbered counts with the result the
verdicts reflect count 1 was the murder and count 3 was the attempted second degree
robbery. Count 2 remained the same. We use the numbering reflected in the verdicts
since they reflect appellant’s convictions. As discussed below, appellant committed the
attempted second degree robbery (count 3), followed by the murder (count 1), followed
by the evasion offense (count 2).
2
Appellant and Bordelon, the latter of whom personally used a gun, unsuccessfully tried to
rob Belmonte (count 3). In particular, Bordelon, while still in the car, pointed the gun at
Belmonte. Bordelon exited the car and pulled Belmonte’s purse and hair. Belmonte
screamed, Bordelon reentered the car without her property, and appellant drove away.
We will present below additional facts concerning this offense.
b. The Shamp Murder and the Evasion Offense (Counts 1 & 2).
(1) Samuel Mason’s Testimony and Forensic Evidence.
Samuel Mason testified that on December 22, 2008, Mason and James Shamp
worked at Canoga Park Bowl, a bowling alley. Shamp was an African-American.
Shortly after 8:00 p.m., Mason saw Shamp walk towards dumpsters outside the bowling
alley to take out the trash.
Mason then heard three gunshots and, within seconds, heard Shamp say, “ ‘What
the hell?’ ” Shamp walked a few steps then fell, mortally wounded (count 1). The
gunshots came from the same area where Shamp had fallen. Mason saw a vehicle in that
same area make a U-turn and speed away onto Vanowen.
Shamp’s autopsy revealed he had been shot once. The deputy medical examiner
who performed the autopsy testified the bullet “entered the left chest” of Shamp and the
bullet’s trajectory was consistent with a shot fired horizontally at Shamp while he was
bending. The bullet perforated Shamp’s heart. Police recovered two .25-caliber casings
from the shooting scene.
(2) Police Testimony.
Los Angeles Police Detective Raymond Diaz testified that about 7:57 p.m. on
December 22, 2008, Diaz and his partner, Los Angeles Police Officer Eloy Navarro, were
on patrol in Canoga Park when Diaz heard a call about an attempted robbery at Lurline
and Strathern involving a described car. About five minutes later, Diaz, who was less
than a mile from the scene of the attempted robbery of Belmonte, heard a call about a
shooting involving a described car. Diaz, a gang expert, believed both described cars
might have been the same car. Moreover, in light of the short time between the calls and
3
the fact both crimes occurred in Canoga Park Alabama gang (CPA) territory, Diaz
believed the crimes were probably CPA missions.
At DeSoto and Saticoy, Diaz saw a car that possibly matched the described cars.
He followed it and a pursuit ensued (count 2). Diaz saw Bordelon, a CPA member, in the
front passenger seat. Diaz recognized him from previous contacts. The pursuit continued
down several streets and ended when the car crashed on Sherman Way near Eton, in front
of the Vallarta Market. Two males fled from the car. Diaz testified Bordelon was one of
the two males and Navarro testified appellant was the other. Video surveillance depicted
appellant removing his shirt in the market and putting it on a shelf.
(3) Rodriguez’s Statement and Testimony.
Police arrested Rodriguez in January 2009, and he told police the following.
Rodriguez was in the car with appellant and Bordelon during the Shamp shooting.
Appellant was the driver and Bordelon was the front passenger. Rodriguez heard
appellant utter “the ‘n’ word.” During a later interview, Rodriguez said Bordelon was the
shooter, and Bordelon, not appellant, uttered the racial slur. Rodriguez, when he was in
the car, knew about a “mission.”
At trial, Rodriguez testified as follows.2 On December 22, 2008, Rodriguez was a
CPA member. Bordelon was like a brother to Rodriguez. They used a racial epithet to
refer to African-Americans, and talked about robbing and shooting them. Rodriguez and
Bordelon jointly committed street robberies in Canoga Park.
Between September and November 2008, Rodriguez and Bordelon committed a
residential burglary and traded the loot for a .25-caliber gun. They shared the gun to rob
and shoot people in Canoga Park. Rodriguez attended CPA meetings and the last was in
November 2008. The members discussed a murder at the meeting. They were angry
because African-Americans had killed one of their “homeboys.” Gang members ordered
2
Rodriguez testified pursuant to a leniency agreement permitting him to plead
guilty to an offense arising from the killing of Shamp on the condition, inter alia, that
Rodriguez testified truthfully at appellant’s trial.
4
that if members saw an African-American male, the members were to do whatever they
could to him, such as beating, robbing, or shooting him. Rodriguez left the meeting and
put in work for the gang. Putting in work or doing a mission for the gang meant robbing,
shooting, or killing people.
On the morning of December 22, 2008, Rodriguez was with Bordelon at an
apartment complex where CPA members congregated. Appellant called Bordelon by
phone and asked if Bordelon wanted “ ‘to hang around or something.’ ” During the
conversation, Bordelon talked about African-Americans. After the call, Rodriguez or
Bordelon gave their gun to Blanco and went outside to wait for appellant. Rodriguez
knew appellant as Youngster and had associated with him on a previous occasion.
About ten minutes after Rodriguez and Bordelon went outside, appellant arrived
and drove Rodriguez and Bordelon to another apartment complex in Canoga Park. They
used drugs at someone’s apartment until about 5:00 or 6:00 p.m. Appellant, and later
Bordelon, left. Rodriguez later went outside and appellant drove up in a car. Bordelon
sat in the passenger seat and Rodriguez sat in the back. Bordelon said, “ ‘Let’s go pick
up [Blanco], get the gun, and see if we can come up on anybody,’ ” that is, rob people.
The men went to an apartment complex on Roscoe to get a gun from Blanco.
After appellant obtained the gun from Blanco, he and Bordelon argued about who should
have it but Bordelon ended up with it. Rodriguez testified, “Before we got in the car, the
discussion was . . . we were talking; and we were going on a mission to . . . rob people or
whatever you can do.”
The group first tried to rob a woman, later identified as Belmonte. Appellant was
driving when he saw Belmonte. Appellant said, “ ‘Look at that lady over there.’ ”
Bordelon told him to make a U-turn and appellant complied. Appellant drove up to
Belmonte and Bordelon pointed a gun at her. Bordelon exited the car and attempted to
rob her.3
3
During Rodriguez’s testimony concerning the attempted robbery of Belmonte, the
prosecutor asked Rodriguez how well he remembered what happened on December 22,
5
Later, Bordelon said they should “ ‘go to the bowling alley and catch somebody
slipping,’ ” meaning catch someone off guard. Rodriguez testified it was easier to rob or
shoot someone when they were off guard.
Appellant drove into the driveway of the bowling alley. Bordelon said, “ ‘Look at
that [racial epithet] over there’ ” and was rolling down his window. Bordelon told
appellant, “ ‘As soon as I’m done, book it.’ ” Appellant stopped the car, Bordelon
pointed the gun out the window, leveled the gun with the window, and fired three to four
shots at the man, later identified as Shamp.4 The gun was the one that had been received
in trade for burglary loot. After the last shot, appellant said, “ ‘Let’s go’ ” and “ ‘Hurry
up,’ ” or something similar. Shamp was holding his chest. Appellant acted as the
getaway driver.
Bordelon later told everyone not to say anything, if anything happened, he would
take the blame, and they were going to get away with it. Bordelon discussed giving the
gun to a CPA member and was telling the group how to get to the member’s house. A
police pursuit later began. Once appellant made three or four turns at the beginning of
the pursuit, Bordelon threw the gun out the window.
c. Gang Evidence.
Diaz, a gang expert, testified as follows. CPA consisted almost exclusively of
Mexicans and El Salvadorians; there were no African-American members. The
2008. Rodriguez replied there were some parts he could not remember because he “was
on [methamphetamine].” He also testified his memory was better when he was arrested
and the passage of time caused him a little difficulty in remembering all the details.
4
Rodriguez testified appellant stopped the car “at least a hundred feet away, if I’m
right,” and Bordelon pointed the gun outside the car and fired shots. Rodriguez pointed
to a location in the courtroom that corresponded to the distance between Rodriguez and
Shamp when Rodriguez drove into the driveway of the bowling alley, and the court stated
the distance was “probably . . . 25 feet.” Both Mason and Rodriguez demonstrated
distances using an aerial photograph (People’s exhibit No. 1) of the bowling alley that
was admitted into evidence.
6
Belmonte and Shamp crimes occurred in CPA territory. CPA’s primary activities
included murder, attempted murder, and robbery.
A CPA member could elevate his or her status by “putting in work” or committing
crimes for the gang. When multiple gang members jointly committed a crime, it was a
mission. A mission involved committing a crime for the gang to show loyalty to it, and
the crimes could range from vandalism to murder.
CPA’s primary rival was the Original Valley Gangsters (OVG), an African-
American gang. CPA harbored racial animosity toward African-Americans. In 2006,
CPA began a campaign of assaulting African-Americans in Canoga Park. Most of the
victims were attacked during drive-by shootings and were not gang members. Victims
were targeted based on race. CPA graffiti reflected the gang’s hostility towards African-
Americans and the graffiti, using racial epithets, indicated CPA members killed African-
Americans.
Hispanic gangs south of Bakersfield were called Surenos, or South Siders
(hereafter, Sureno(s)). The cultures and ideologies of CPA in particular, and Sureno
gangs generally, were essentially the same. Sureno gangs drew “a racial line” between
Hispanics and Mexicans, and African-Americans. Diaz knew of no African-Americans
who were Surenos. Sureno gang members had tattoos reflecting Mayan or Aztec culture.
CPA graffiti reflected the gang was connected with Sureno gangs, and that graffiti
included the number 13.
Appellant was once a Sol Trece gang member and known by monikers including
Youngster. Sol Trece was mainly a Sun Valley gang.5 Appellant had tattoos of the
Mayan number 13, a “Sur” tattoo that meant South, and tattoos indicating South Sider.
5
During cross-examination, appellant’s counsel asked Diaz if Sol Trece was
“defunct” as of December 22, 2008. Diaz replied, “Yes. It was removed from our
system, as far as gang members being monitored” by the North Hollywood and Foothill
divisions. Diaz denied it was fair to say Sol Trece was not “in existence,” and instead
testified Sol Trece was not “active enough to where they would be a primary monitored
gang.”
7
Based upon these tattoos, Diaz opined appellant was “down for being a member of a
South Sider” or “down for basically any gang that is a South-Sider gang.” Appellant also
had a tattoo of the sun, representing his connection to Sureno gangs. Bordelon was a
CPA member whose moniker was Psycho, and Rodriguez was a new CPA member.
Rodriguez had been putting in work for CPA up to and including on December 22, 2008.
Blanco was a CPA associate.
In response to hypothetical questions including facts of the attempted robbery of
Belmonte and the murder of Shamp, Diaz opined those offenses were committed for the
benefit of CPA. In response to a hypothetical question including facts of the evasion
offense (count 2), Diaz testified the police pursuit benefited CPA. The eluding of police
enhanced gang members’ reputations. CPA members who committed a series of crimes
such as attempted robbery at gunpoint and the murder of an African-American man, and
then eluded police, would be elevated to heroic status within the gang.
2. Defense Evidence.
In defense, appellant, who had suffered a felony conviction for assault by means
of force likely to produce great bodily injury, testified as follows. Appellant harbored no
animosity towards African-Americans. Appellant met Bordelon only a few weeks before
the present offenses were committed and was not his friend. Appellant had known
Bordelon was a CPA member. They met two or three times to drink and to smoke
marijuana. Appellant had met Rodriguez only once before December 22, 2008.
Appellant met Blanco independently of Bordelon.
Appellant never had anything to do with CPA. Appellant once associated with the
Sol Trece gang but it no longer existed. Appellant was pressured into getting Sureno
gang tattoos when he was in prison. Appellant denied knowing Bordelon was going to
try to rob Belmonte or shoot Shamp.
After the shooting, appellant drove out onto the street and turned. Bordelon told
him to make another turn at a light. Appellant was panicking because Bordelon had fired
the gun for no reason. Bordelon told appellant to make additional turns. After appellant
8
made those turns, he saw a police car behind him. The police car later activated its lights
and siren. Appellant did not stop because he was paranoid and “knowing this guy next to
me, fucking Psycho, just shot an innocent person, I’m thinking, ‘If I pull over, fucking,
he’s going to shoot me.’ ” Appellant did not testify he was evasively driving because he
was on parole. After appellant entered the market, Bordelon was not a threat to him.
Nonetheless, appellant failed to surrender at that time to police, in part because,
according to appellant, he was on parole.
Andrew Griffith testified one of his parents was an African-American, Griffith
grew up with appellant, and Griffith had not known appellant to harbor animosity
towards African-Americans.
ISSUES
Appellant claims (1) there is insufficient evidence supporting his murder
conviction (count 1), (2) there is insufficient evidence supporting the true finding as to
the race special circumstance, (3) his conviction for the evasion offense (count 2) must be
reversed because the trial court erroneously refused to give a duress instruction, (4) there
is insufficient evidence supporting the true finding as to the gang allegation pertaining to
count 2, (5) the true findings as to the Penal Code section 12022.53 allegations pertaining
to count 1 and count 3 (the attempted second degree robbery offense) violate equal
protection guarantees, and (6) the trial court imposed an unauthorized sentence as to
count 3.
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Murder Conviction (Count 1).
Appellant claims there is insufficient evidence he committed murder because there
is insufficient evidence he harbored intent to kill. He concedes the evidence established
Bordelon was the shooter, appellant was driving the vehicle “at the time Bordelon fired
the fatal shots,” and there was sufficient evidence Bordelon acted with intent to kill.
However, appellant argues appellant was not an aider and abettor simply because there
9
was insufficient evidence he “shared the murderous intent of Bordelon.” We reject
appellant’s claim.
A “person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.” (People v.
Beeman (1984) 35 Cal. 3d 547, 561.) Factors relevant to a determination of whether a
defendant was an accomplice include presence at the scene of the crime, companionship,
and conduct before and after the offense. (People v. Singleton (1987) 196 Cal. App. 3d
488, 492.) “[W]hen guilt does not depend on the natural and probable consequences
doctrine, . . . the aider and abettor must know and share the murderous intent of the actual
perpetrator.” (People v. McCoy (2001) 25 Cal. 4th 1111, 1118.) When reviewing
appellant’s sufficiency claim, our power begins and ends with the determination whether
there is substantial evidence, contradicted or uncontradicted, to support the judgment.
(People v. Hernandez (1990) 219 Cal. App. 3d 1177, 1181-1182.)
There was substantial evidence as follows. Prior to the present offenses, appellant
was driving when Bordelon said, “ ‘Let’s go pick up [Blanco], get the gun, and see if we
can come up on anybody,’ ” that is, rob people. Appellant obtained the gun from Blanco
and argued he should have it. Appellant was in the car when Bordelon talked about
going on a mission to rob people “or whatever you can do.”
Minutes before the Shamp murder, appellant was an accomplice and the getaway
driver when Bordelon, using a gun, violently tried to rob Belmonte. Bordelon later
indicated they should go to the bowling alley and catch someone off guard. Rodriguez
testified it was easier to shoot someone who was off guard. Appellant drove Bordelon to
the bowling alley. Bordelon told the car’s occupants, including appellant, to look at
Shamp, and Bordelon used a racial epithet to refer to Shamp. Bordelon rolled down his
window and told appellant, “ ‘As soon as I’m done, book it.’ ”
10
According to Rodriguez’s testimony, appellant stopped the car, apparently without
being told. Shamp was in that area. The following then occurred in appellant’s presence
as the driver. Bordelon, with murderous intent, fired multiple shots at Shamp in an effort
to kill him violently. Bordelon carefully aimed at Shamp, leveling the gun when firing at
him. “. . . ‘The act of firing toward a victim at a close, but not point blank, range “in a
manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill . . . .” [Citation.]’ ” (People v. Villegas
(2001) 92 Cal. App. 4th 1217, 1225.) A bullet not only could have inflicted but did inflict
a mortal wound upon Shamp.
A bullet struck Shamp in the left side of his chest, i.e., in the area of vital organs;
indeed, Bordelon shot Shamp in the heart. Appellant did not leave after the first shot but
drove away with Bordelon only after Bordelon finished shooting. Appellant offered no
assistance to Shamp, who had fallen mortally wounded. Appellant was driving the car
during the later police pursuit, i.e., conduct evidencing consciousness of guilt. After the
car crashed, appellant fled on foot and removed his shirt, additional consciousness of
guilt evidence.
In part 2 of our Discussion, infra, we conclude there was sufficient evidence
supporting the special circumstance finding that “The victim was intentionally killed
because of his . . . race . . . .” within the meaning of Penal Code section 190.2,
subdivision (a)(16). In part 4, infra, we conclude there was sufficient evidence the
evasion offense was gang-related. We incorporate those discussions here and they
further support our conclusion appellant harbored intent to kill when Bordelon shot
Shamp. We conclude there was sufficient evidence to convince a rational trier of fact,
beyond a reasonable doubt, that appellant was an accomplice to the murder of Shamp,
including sufficient evidence appellant shared Bordelon’s murderous intent.
2. Sufficient Evidence Supported the Race Special Circumstance Finding (Count 1).
The jury found true “the murder of James Shamp was committed by a principal,
and that James Shamp was killed intentionally because of his race, within the meaning of
11
Penal Code section 190.2(a)(16).” Appellant claims there was insufficient evidence
supporting this finding because there was insufficient evidence race was a substantial
factor that motivated appellant’s conduct. We reject the claim.
The Penal Code section 190.2, subdivision (a)(16) race special circumstance
applies when the defendant is found guilty of first degree murder and “The victim was
intentionally killed because of his . . . race, . . .” (italics added) within the meaning of that
subdivision. “[T]he bias motivation must be a cause in fact of the offense, whether or not
other causes also exist. [Citation.] When multiple concurrent motives exist, the
prohibited bias must be a substantial factor in bringing about the crime.” (In re M.S.
(1995) 10 Cal. 4th 698, 719, italics added.) Appellant concedes we review the evidence
under the deferential substantial evidence test.
There was substantial evidence as follows. Diaz testified CPA consisted of
Mexicans and El Salvadorians, but no African-Americans. CPA harbored racial
animosity towards African-Americans, and CPA had instituted a campaign of violence
against African-Americans in the community. Most victims were attacked in drive-by
shootings and were not gang members. (That was the case with Shamp.) Diaz opined the
victims were targeted based on their race. CPA frequently committed crimes against
African-Americans. CPA graffiti, including racial epithets, indicated members killed
African-Americans.
Rodriguez testified as follows. Rodriguez and Bordelon were CPA members who
used a racial epithet to refer to African-Americans and spoke about shooting them.
Rodriguez attended several CPA meetings and the last was in November 2008. CPA
members repeatedly met and the last meeting was in November 2008. They were angry
about African-Americans killing one of their “homeboys.” A gang member ordered that
if members saw a Black male, the members were to do whatever they could to him,
including shooting him. Rodriguez left the meeting intending to put in work for the gang,
including intending to shoot people.
12
The culture and ideologies of CPA and Sureno gangs were the same. CPA and
Sureno gangs shared ideology. CPA graffiti connected that gang with Sureno gangs.
Sureno gang members had tattoos reflecting Mayan or Aztec culture. Sureno gangs drew
a racial line between, on the one hand, Hispanics and Mexicans and, on the other,
African-Americans. Diaz knew no African-Americans connected to a Sureno gang.
Prior to December 22, 2008, appellant was a Sol Trece gang member. On that
date, he had Mayan tattoos and other tattoos related to Sureno and South Sider gangs.
Diaz opined appellant was “down for being a member of a South Sider” or “down for
basically any gang that is a South Sider gang.” CPA was such a gang.
On the morning of December 22, 2008, appellant called Bordelon, asked if
Bordelon wanted to hang around, and Bordelon talked about African-Americans. When
appellant and Bordelon were at the scene of the Shamp shooting, Bordelon uttered a
racial slur in appellant’s presence. When appellant drove into the driveway, Bordelon
pointed at a man – Shamp, an African-American – and said “ ‘Look at that [racial epithet]
over there.’ ” Bordelon subsequently shot Shamp. Appellant testified Bordelon shot
Shamp within two or three seconds after Bordelon made the racial slur.
Diaz, a gang expert, believed the murder of Shamp was a CPA mission. In part 4
of our Discussion, infra, we conclude there was sufficient evidence the evasion offense
was gang-related. We incorporate that discussion here. In light of all of the above
evidence, we conclude there was sufficient evidence to convince a rational trier of fact,
beyond a reasonable doubt, that appellant intentionally killed Shamp “because of his . . .
race” within the meaning of Penal Code section 190.2, subdivision (a)(16).
3. The Trial Court Did Not Reversibly Err by Refusing to Instruct on Duress as to the
Evasion Offense (Count 2).
During discussions concerning jury instructions, appellant asked the trial court to
use CALCRIM No. 3402 to instruct the jury on duress as a defense to the evasion offense
(count 2). That instruction indicated a defendant was not guilty of a crime if the
defendant acted under duress, i.e., if, because of threat or menace, the defendant
13
reasonably believed the defendant’s life would be in danger if the defendant refused a
demand or request to commit a crime.
The court refused to give the instruction, commenting the unrebutted testimony
was that the gun was thrown out of the car early during the chase. The court concluded
there was no evidence of an express or implied threat, and stated, “Telling someone to
drive right after committing a murder or when the police light up the car and sound the
siren is not duress of immediate death, especially when the instrument of death has been
thrown out of the car.”
Appellant claims the trial court’s refusal to instruct on duress was prejudicial error
as to count 2 because there was substantial evidence to support such an instruction. We
assume without deciding that appellant’s testimony provided substantial evidence of
duress. However, even if the trial court erred by failing to instruct on duress, it does not
follow we must reverse the judgment as to count 2.
There is no dispute appellant did not act under duress when he aided and abetted
Bordelon’s violent attempted robbery of Belmonte at gunpoint. Minutes later, Bordelon
shot and murdered Shamp. In part 1 of our Discussion, ante, we concluded there was
sufficient evidence appellant intended to kill Shamp. Indeed, there was sufficient
evidence appellant, as an accomplice, committed the first degree murder of Shamp, with
appellant as principal in an offense in which a person personally and intentionally
discharged a firearm causing death (Pen. Code, § 12022.53, subds. (d) & (e)(1)), with
appellant having committed the offense for gang-related reasons (Pen. Code, § 186.22,
subd. (b)(1)), and with special circumstances that he committed the murder because of
Shamp’s race, and by discharging a firearm from a motor vehicle.
Against the backdrop of appellant’s commission of the above two serious, violent,
and intentional felonies, appellant argues he acted under duress when evading police
minutes after the murder. However, there was evidence that, after the murder and shortly
after the police pursuit began, the gun was thrown out of the car; therefore, Bordelon
could not have threatened appellant with that gun during the subsequent lengthy pursuit.
14
Even assuming Vehicle Code section 2800.2, subdivision (a) is not a continuing offense,
and notwithstanding appellant’s assertion that appellant’s guilt for that offense was
established even before the gun was discarded, nothing in that subdivision’s language
precluded the jury from considering appellant’s evasive conduct after the gun was
discarded as evidence of lack of duress before the gun was discarded.
The jury heard appellant’s testimony relating to duress. Moreover, during jury
argument, appellant’s counsel in effect commented on duress when he told the jury that
appellant testified he did not pull over because “if he pulled over, he was going to be the
next target” of Bordelon, given Bordelon’s previous actions. Beyond that, during jury
argument, appellant’s counsel commented, “you should convict [appellant] of the charge
of willful evasion of the police. He’s guilty of that, and you should convict him of that.”
Appellant then argued he evaded police because the police would not have believed his
innocent explanations of what previously had happened and the fact he evaded police was
not dispositive of his state of mind at the time of the attempted robbery and the murder.
The jury’s findings that appellant committed attempted robbery involving a
firearm, then committed a race-, firearm-, and gang-related first degree murder, militate
against a conclusion that, if the court had instructed on duress, the jury would have found
appellant acted under duress when evading police minutes after the first degree murder.
Any trial court error in failing to instruct on duress as a defense to the evasion offense
(count 2) was harmless under any conceivable standard. (Cf. People v. Watson (1956)
46 Cal. 2d 818, 836; People v. Saavedra (2007) 156 Cal. App. 4th 561, 569 (Saavedra);
Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)6
6
In People v. Salas (2006) 37 Cal. 4th 967 (Salas) (cited by Saavedra) our Supreme
Court stated, “We have not yet determined what test of prejudice applies to the failure to
instruct on an affirmative defense” (Id. at p. 984) and then concluded the instructional
error in Salas was harmless even assuming the Chapman test applied. (Salas, at p. 984.)
Because Salas evaluated the instructional error in that case for prejudice, we reject
appellant’s argument that the alleged instructional error in this case was structural error
that is reversible per se. (Cf. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d
450, 455.)
15
4. There Was Sufficient Evidence Supporting the True Findings as to the Gang
Allegation as to the Evasion Offense (Count 2).
Appellant, for purposes of his present claim, does not dispute he attempted to rob
Belmonte (count 3), the offense involved a firearm, or, significantly, the offense was
gang-related for purposes of Penal Code section 186.22, subdivision (b)(1). Nor does
appellant dispute for purposes of his present claim that (1) minutes after committing the
attempted robbery, he committed the first degree murder of Shamp (count 1), or (2) the
murder was race-, firearm-, and gang-related for purposes of Penal Code section 186.22,
subdivision (b)(1). Instead, appellant argues there was insufficient evidence his evasion
offense (count 2), i.e., an offense he committed minutes after the murder, was gang-
related for purposes of Penal Code section 186.22, subdivision (b)(1). In particular, he
argues there was insufficient evidence he committed the evasion offense “with the
specific intent to promote, further, or assist in any criminal conduct by gang members”
within the meaning of Penal Code section 186.22, subdivision (b)(1).7 We reject the
claim.
The facts (undisputed for purposes of appellant’s current claim) that he committed,
in a matter of minutes, attempted robbery (count 3), then murder (count 1), each with the
above quoted gang-related specific intent, was evidence appellant committed, minutes
after the murder, the evasion offense with that same specific intent. Moreover, we recited
in our Factual Summary pertinent facts concerning the gang evidence, we discussed
gang-related and race-related evidence in part 2 of our Discussion, and we will not repeat
those matters here. Diaz testified the police pursuit benefited CPA and the eluding of
police enhanced gang members’ reputations. Based on the entirety of the evidence, we
7
Penal Code section 186.22, subdivision (b)(1), states, in relevant part, “. . . any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony or attempted felony
of which he or she has been convicted, be punished . . . .” (Italics added.)
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conclude there was sufficient evidence to convince a rational trier of fact, beyond a
reasonable doubt, that the gang allegation as to the evasion offense was true, including
sufficient evidence of the requisite specific intent. (Cf. People v. Leon (2008)
161 Cal. App. 4th 149, 163; People v. Romero (2006) 140 Cal. App. 4th 15, 19-20; People
v. Morales (2003) 112 Cal. App. 4th 1176, 1198-1199.)
5. The Penal Code Section 12022.53 Enhancements Were Constitutional.
Appellant claims imposition of the Penal Code section 12022.53 enhancements on
counts 1 and 3 violated his right to equal protection. He argues “this court must
determine whether someone who aids and abets a principal in an offense committed for
the benefit of a ‘criminal street gang’ is similarly situated to a person who aids and abets
a confederate in an offense committed for the benefit of another type of group or
organization” and, if so, whether disparate treatment is justified under the applicable
standard. However, appellant has failed to show that these two persons are similarly
situated (People v. Gonzales (2001) 87 Cal. App. 4th 1, 13), and this is fatal to his equal
protection claim. (Id. at p. 12; cf. People v. Hernandez (2005) 134 Cal. App. 4th 474,
483.)
6. The Judgment Must Be Modified as to Count 3.
Appellant’s sentence included the upper term of five years in prison for his
attempted second degree robbery conviction (count 3). Appellant claims the trial court
erred because the sentence for attempted second degree robbery should have been an
upper term of three years. Respondent concedes the error and that the judgment must be
modified accordingly. We accept the concession. (People v. Moody (2002)
96 Cal. App. 4th 987, 990; People v. Huff (1990) 223 Cal. App. 3d 1100, 1106; Pen. Code,
§ 213, subd. (b).)
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DISPOSITION
The judgment is modified by changing only the prison term imposed for
appellant’s conviction for attempted second degree robbery (count 3) from five years to
three years and, as modified, the judgment is affirmed. The trial court is directed to
forward to the Department of Corrections an amended abstract of judgment reflecting the
above modification.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
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