Opinion · California Court of Appeal
People v. Romero
People v. Romero, 43 Cal. Rptr. 3d 862 (California Court of Appeal 2006)
- Type
- Opinion
- Court
- California Court of Appeal
- Jurisdiction
- California
- Date
- 2006-06-01
- Topic
- litigation
How later courts describe this case
- declining to follow Garcia because “[b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct”
- ‘There was ample evidence that appellant intended to commit a crime, that he intended to help [his accomplice] commit a crime, and that he knew [his accomplice] was a member of his gang.’
- retaliatory shooting on a rival gang’s turf
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PEOPLE v. ROMERO,140 Cal.App.4th 15(2006)
43 Cal.Rptr.3d 862
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL ROMERO, Defendant and
Appellant.
No. B185902.
Court of Appeal of California, Second District.
June 1, 2006.
[CERTIFIED FOR PARTIAL PUBLICATIONfn*]
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL SUMMARY
On the evening of October 11, 2004, appellant picked up his friends Mario Moreno and Edgar Navarro2in a stolen car. Appellant and Moreno are members of the criminal street gang, Florencia 13. As he entered the car, Moreno said, "Let's go do this," and showed appellant the large rifle he was carrying. Appellant believed Moreno meant that they should go shoot somebody. Appellant then drove the men to a liquor store and stopped the car. The store was located in territory controlled by the 89 East Coast Crips, a rival gang. Robert Tyrone King and Darrell Dennard were standing outside the store, talking and drinking beer. Moreno aimed the rifle out of the car window and fired three rounds, hitting King and Dennard in the back. Dennard died from his injuries, but King survived. Both victims were African-American. Neither was a known gang member.
Appellant and Moreno were charged with murder and attempted murder. Firearm use and gang enhancements also were alleged. Moreno was triedPage 18separately. A jury convicted appellant of first degree murder and attempted murder, and found the allegations to be true. He was sentenced to 25 years to life for murder plus 25 years to life for the firearm enhancement, and 15 years to life for attempted murder plus 25 years to life for the firearm enhancement. The trial court stayed the gang allegations on each count.
A timely notice of appeal followed.
DISCUSSION
I, IIfn*
IAppellant challenges the jury instructions. He argues that the trial court erroneously instructed the jury on implied malice (CALJIC No. 8.11) without informing them that implied malice could only support second degree murder. He also argues that the court should have instructed the jury on premeditated and deliberate murder (CALJIC No. 8.20). In determining whether error has been committed in giving or not giving jury instructions, we consider the instructions as a whole. (People v. Dieguez(2001)89 Cal.App.4th 266,277.) "`Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin(2000)78 Cal.App.4th 1107,1112; see alsoPeople v. Clair(1992)2 Cal.4th 629,663.) In determining whether instructional error is prejudicial, a reviewing court may reverse a conviction "`only if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred [citation].' [Citation.]" (People v.Lasko(2000)23 Cal.4th 101,111;People v. Lee(1999)20 Cal.4th 47, 62.) Section 189 provides that first degree murder may be premised on premeditation, felony murder, or any of a few specific circumstances, one of which is discharging a firearm from a motor vehicle (drive-by murder). The jury received the drive-by murder instruction (CALJIC No. 8.25.1): "The essential elements of drive-by murder are: [¶] 1. The defendant committed the crime of murder; [¶] 2. The defendant perpetrated the murder by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle;and[¶] 3. Thedefendant specificallyintended to kill a human being." (Italics added.) The jury also was instructed on the definition of murder, second degree murder by means of a drive-by shooting, and malice aforethought. CALJIC No. 8.11 provides: "`Malice' may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act." No instruction was given explaining that the jury could convict of first degree murder only upon a finding of express malice. Because the trial court instructed on implied malice, the jury theoretically could have found the killing to be first degree murder based on implied malice. This would have been error. But the jury's guilty verdict establishes that it accepted the drive-by theory, which, under the instructions, required a specific intent to kill. Any error in failing to limit implied malice to second degree murder was therefore harmless. Further, the court did not err by failing to give the premeditation instruction. A finding of first degree murder requires express malice. The instructions provided that section 189 requires a specific intent to kill, which is the equivalent of express malice. (People v. Chavez(2004)118 Cal.App.4th 379, 385-387.) The jury heard substantial evidence, including appellant's own admission, that a rifle was fired out of the car driven by appellant, killing one victim and injuring another. The jury necessarily accepted this evidence to find that a murder was perpetrated by intentionally shooting a firearm from a motor vehicle at two men outside the vehicle. In addition, regarding the attempted murder resulting from the same incident, the jury found true the allegations that the commission and attempted commission of attempted murder was willful, deliberate, and premeditated. In order to make that finding under CALJIC No. 8.67, the jury had to find that the "attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation. . . ." In light of the instructions that were given, any error in failing to give implied malice and premeditation instructions was harmless beyond a reasonable doubt. (Chapman v. California(1967)386 U.S. 18, 24.) Appellant argues, in the alternative, that the court should have instructed on second degree murder if there was evidence from which the jury could have concluded he intended only to injure the victims. We agree that the court did not provide the jury with sufficient explanation for a finding of second degree murder if it rejected the drive-by murder theory. But, as previously discussed, any error was harmless because the jury explicitly accepted the drive-by theory.IIAppellant contends that the trial court erred by failing to give CALJIC No. 3.02, which includes the natural and probable consequences doctrine of culpability. This instruction is properly given where a person intends to aid and abet a particular crime but another crime is committed, and the other crime is a natural and probable consequence of the intended crime. (People v. Prettyman(1996)14 Cal.4th 248,261.) The jury was given other standard aiding and abetting instructions (CALJIC Nos. 3.003and 3.01).4"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.]" (People v.Ervin(2000)22 Cal.4th 48,90.) We find no error in the court's failure to instruct on the natural and probable consequence theory because respondent did not rely on it. Respondent assumed the greater burden of proving that appellant, as an accomplice, shared the specific intent of the direct perpetrator. (People v. McCoy(2001)25 Cal.4th 1111,1117-1118.) In closing argument, the district attorney contended that the jury could find appellant guilty as a principal because he aided and abetted in the murder and attempted murder. He argued that appellant knew of and intended to further Moreno's unlawful purpose of murder by driving his armed friend to the liquor store and stopping the car within range of the victims, knowing that Moreno would shoot. The jury's verdict of first degree drive-by murder indicates that it necessarily found that appellant intended to commit the shootings, and that it did not rely on the natural and probable consequences theory.
III
Appellant argues the record is insufficient to support the jury's finding that the shootings were 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." (§ 186.22, subd. (b)(1).) He also challenges the firearm enhancements which are dependent on the gang finding pursuant to section 12022.53, subdivision (e)(1)(A). Without evidence that the victims were gang members or that anyone involved wore gang colors or used gang slogans, appellant argues the gang expert's testimony about gang culture and rivalries was not sufficient to create an inference the shootings were gang related.
In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey(1992)2 Cal.4th 408,432[6 Cal.Rptr.2d 822,827 P.2d 388], fn. omitted.) We consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Gamez(1991) 235 Cal.App.3d 957, 977 [286 Cal.Rptr. 894], disapproved on another point inPeople v. Gardeley(1996)14 Cal.4th 605,624, fn. 10 [59 Cal.Rptr.2d 356, 927 P.2d 713].) To prove a gang allegation, an expert witness may testify about criminal street gangs. (People v. Gardeley, supra, at pp. 616-618.)
Here, the gang allegation is supported by substantial evidence. Appellant does not dispute that he is a member of Florencia 13, a Latino criminal streetPage 19gang. The prosecution expert, Officer Stevens, testified that Moreno also was an active member of Florencia 13. He stated that Florencia 13 and the 89 East Coast Crips, an African-American gang, were rival gangs which had been engaged in a violent war for the past three years. He explained that any Florencia 13 gang member would know that the liquor store where the shooting occurred, only 2.4 miles away from Florencia 13 territory, was situated in territory controlled by the 89 East Coast Crips.
Officer Stevens opined that the shootings were committed to benefit the gang because "there is absolutely no reason for anybody from Florence to be anywhere near that liquor store. It's a known 89 East Coast hangout. It's also a hangout for 18th Street, which [are] also bitter rivals with Florencia. Again, there would be no reason for Florencia to go to that liquor [store] unless they knew they were expecting trouble or looking for trouble." The officer explained that whether or not the victims were gang members, a shooting of any African-American men would elevate the status of the shooters and their entire gang. Further, appellant admitted that the Latino men in his neighbor-hood were having problems with the African-American men. We conclude that ample evidence supports the jury's finding that the shooting was committed "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).)
In the alternative, appellant argues that even if the crimes were committed to benefit the gang, he lacked the requisite "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Relying on the majority opinion inGarcia v. Carey(9th Cir. 2005)395 F.3d 1099, appellant asserts that the statute requires a showing of intent to promote the gang's criminal activity beyond the charged crime. InGarcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist inothercriminal conduct by the defendant's gang. We disagree withGarcia'sinterpretation of the California statute, and decline to follow it. (SeePeople v. Burnett(2003)110 Cal.App.4th 868,882[2 Cal.Rptr.3d 120] [federal authority is not binding in matters involving state law]; see alsoOxborrow v.Eikenberry(9th Cir. 1989)877 F.2d 1395,1399[state court interpretation of state statute binding on federal court unless interpretation is a subterfuge or untenable].) By its plain language, the statute requires a showing of specific intent to promote, further, or assist in "anycriminal conduct by gang members," rather thanothercriminal conduct. (§ 186.22, subd. (b)(1), italics added.)
InPeople v. Morales(2003)112 Cal.App.4th 1176,1198[5 Cal.Rptr.3d 615], the defendant and two fellow gang members committed a robbery. On appeal, defendant argued that he lacked the requisite specific intent for the gang finding, because the evidence showed only that the three men belongedPage 20to the same gang. The court rejected his claim, concluding that there was sufficient evidence that defendant intended to commit the robbery in association with other gang members and that it was therefore "fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Peoplev. Morales, supra, at p. 1198.)
Thus, the specific intent element is satisfied if appellant had the specific intent to "promote, further, or assist" Moreno in the shootings of Dennard and King. There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Moreno's criminal conduct. Because we find sufficient evidence to uphold the gang enhancement, we also uphold the dependent firearm enhancement.
DISPOSITION
The judgment is affirmed.
Willhite, J., and Hastings, J.,fn*concurred.
Appellant's petition for review by the Supreme Court was denied September 20, 2006, S144621.Page 21
- Pursuant to California Rules of Court, rules 97(b) and 976.1, this opinion is certified for publication with the exception of parts I and II of the discussion. ↩
- All statutory references are to the Penal Code. ↩
- Navarro was killed three weeks after the shootings. ↩
- See footnote,ante, page 15. ↩
- CALJIC No. 3.00 provides: "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission or attempted commission of the crime. ↩
- CALJIC No. 3.01 defines aiding and abetting: "A person aids and abets the commission or attempted commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." ↩
- Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to articleVI, section6of the California Constitution. ↩