Opinion
F076365
08-31-2018
THE PEOPLE, Plaintiff and Appellant, v. JOSHUA OCHOA, Defendant and Respondent.
Tim Ward, District Attorney, Dan Underwood, Dave Alavezos, Douglas W. Rodgers, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF328656D)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Gary L. Paden, Judge. Tim Ward, District Attorney, Dan Underwood, Dave Alavezos, Douglas W. Rodgers, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Respondent.
-ooOoo-
Respondent Joshua Ochoa was charged by information with murder (under the "natural and probable consequences" doctrine); two gang enhancement allegations were attached to the murder charge. Ochoa was also charged with being an accessory after the fact; a gang enhancement allegation was attached to the accessory charge. Finally, Ochoa was charged with street terrorism (the substantive gang offense).
Ochoa brought a Penal Code section 995 motion to set aside the information. The superior court set aside the murder charge (along with the associated gang enhancements), the street terrorism charge, and the gang enhancement attached to the accessory charge. In light of the court's indicated sentence of felony probation and credit for time served, Ochoa pleaded the same day to the accessory charge. He was released from custody that day as well, having served approximately 18 months in jail.
The People appeal. We will affirm.
PROCEDURAL HISTORY
Ochoa and three co-defendants, Ruben Gonzalez, Emmanuel Meza, and Ebony Garcia, were charged in the instant case by a complaint filed in the Tulare County Superior Court. The case arose from an incident in which a 17-year-old boy, Jeremiah C., was stabbed to death. Ochoa drove Gonzalez, Meza, and Garcia to Jeremiah's house for what Ochoa believed would be a fist fight. Ochoa remained by the car while Gonzalez, Meza, and Garcia got out. Gonzalez and Meza fought with Jeremiah, Sebastian C. (Jeremiah's brother), and Eric F. (a friend of Jeremiah and Sebastian). Jeremiah was stabbed 11 times and later died. Sebastian was also stabbed but survived. Eric was stomped on but also survived. Ochoa drove Gonzalez, Meza, and Garcia home after the fight.
Gonzalez, Meza, and Garcia were charged with murder, attempted murder, assault, criminal street gang conspiracy, and street terrorism. Ochoa was charged with being an accessory after the fact, along with a gang enhancement (Pen. Code, §§ 32, 186.22, subd. (b)(1)(A); count 6), criminal street gang conspiracy (§ 182.5; count 7), and street terrorism (§ 186.22, subd. (a); count 8).
Subsequent statutory references are to the Penal Code unless otherwise specified.
Following the preliminary hearing, Ochoa was held to answer on the accessory charge and the attached gang enhancement, as well as the street terrorism charge (the substantive gang offense). He was not held to answer on the charge of criminal street gang conspiracy. In the subsequent information filed in the superior court, however, the prosecution added additional charges beyond those encompassed in the magistrate's commitment order. The information charged Ochoa with murder along with two gang enhancements (count 1; §§ 187, subd. (a), 186.22, subd. (b)(5) & (b)(1)(C)), being an accessory after the fact along with a gang enhancement (count 6; §§ 32, 186.22, subd. (b)(1)(A)), and street terrorism, i.e., the substantive gang offense (count 7; § 186.22, subd. (a)).
Section 186.22, subdivision (b)(5) provides: "[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." Section 186.22, subdivision (b)(1)(C) provides for punishment for an additional term of 10 years.
Section 186.22, subdivision (b)(1)(A) provides for punishment "by an additional term of two, three, or four years at the court's discretion."
Ochoa filed a motion to set aside the information pursuant to section 995. The trial court granted the motion as to the charges of murder and street terrorism. The court denied the motion as to the accessory charge but granted it as to the gang allegation attached to the accessory charge. (§§ 187, subd. (a), 186.22, subd. (a), 32, 186.22, subd. (b)(1)(A).) Gonzalez, Meza, and Garcia also filed motions to dismiss pursuant to section 995, but their motions were denied.
The People now appeal the trial court's rulings on Ochoa's section 995 motion as to the murder and street terrorism charges set forth in the information, as well as with regard to the gang enhancements attached to the murder and accessory charges.
EVIDENCE PRESENTED AT THE PRELIMINARY HEARING
There was a single preliminary hearing for Ochoa, Gonzalez, Meza, and Garcia. At the preliminary hearing, the People called as a witness Dr. Gary Walter, a physician who conducted the autopsy on Jeremiah's body. The People also called four Visalia police officers: Celestina Sanchez, James Cummings, Mona Whaley, and Austin Huerta. Officers Sanchez, Cummings and Whaley testified about the police statements provided by Sebastian and Eric, as well as by Ochoa, Gonzalez, Meza, and Garcia. Officer Huerta testified as the People's gang expert. Dr. Gary Walter
Dr. Gary Walter testified that Jeremiah suffered 11 stab wounds to his body, including wounds to the chest, abdomen, back, and head. Two of the wounds were fatal, specifically a wound to the chest that lacerated the heart and a wound to the back that severed the abdominal aorta. Jeremiah died of "exsanguination" or "bleeding to death," as a result of "[multiple] sharp force trauma injuries."
Officer Celestina Sanchez
Officer Celestina Sanchez took a statement from Sebastian. Sebastian explained that on the day of the incident he was at his family's home with his brother Jeremiah and their friend Eric. Ebony Garcia called Eric's cell phone but Sebastian answered the phone. Officer Sanchez noted that Garcia had been in a relationship with Eric but their relationship had ended.
Garcia told Sebastian over the phone: "'You guys are talking shit.'" She also said that Sebastian, Jeremiah, and Eric were "punk ass bitches," adding, "We know where you live." Sebastian did not know why Garcia was upset. Garcia then handed the phone to a man. The man identified himself as Garcia's cousin and told Sebastian: "'Do you want to catch the fade?'" Sebastian explained the phrase amounted to a challenge to engage in a physical fight. About an hour later, around 2:00 p.m., there was a knock on the front door of Sebastian's home. Sebastian, Jeremiah, and Eric all went to the front door. Upon opening the door, they were confronted by Garcia and two men. Sebastian later identified the two men, with reference to photo lineups, as Gonzalez and Meza.
Gonzalez and Garcia were cousins, and the man referred to here was Gonzalez.
Sebastian said that he had barely exited his house when Gonzalez and Meza began assaulting Jeremiah; one of them hit Jeremiah in the face. Sebastian tried to intervene, which caused the two men to assault him also. Sebastian saw both Gonzalez and Meza with knives; one knife had a black handle and the other had a red handle. Gonzalez and Meza each stabbed Sebastian as well as Jeremiah. Sebastian also saw Gonzalez "stomping" on Eric's head while Eric lay on the ground. Gonzalez was asking, "[W]ho's claiming to be Locs?" Officer Sanchez testified that Locs was a "[N]orthern [gang] clique in the City of Visalia." Sebastian told Officer Sanchez that everything happened very fast.
Sebastian further told Officer Sanchez that Garcia did not join the fight. Rather, Garcia told Gonzalez and Meza not to hurt Sebastian because he was a young boy. After the fight, Garcia, Gonzalez, and Meza ran together to a waiting car, a black Mitsubishi Lancer, which was parked around the corner from the front of the house (the house was located on a corner lot). A "Hispanic male adult," later identified as Ochoa, was sitting in the driver's seat of the Lancer. After the assailants got into the Lancer, it sped off at high speed.
Officer Sanchez testified that Sebastian did not acknowledge any gang affiliation for himself, Jeremiah, or Eric but stated they associated with the Northern gang since an older brother of Jeremiah and Sebastian was affiliated with that gang.
Officer Sanchez also testified that, in the course of the investigation into the incident at issue, she had transported Ruben Gonzalez to his house, from where, with Gonzalez's consent, she obtained Gonzalez's knife and cell phone.
Officer James Cummings
Officer James Cummings interrogated Ruben Gonzalez in regard to the instant incident. Gonzalez had a number of tattoos that are "commonly associated with the Norteno street gang." Officer Cummings testified:
"[Gonzalez] said he was at his house and his cousin, Ebony Garcia, was on the phone with a subject who he thought had the first name of Isaiah. He said the two were involved in a heated argument and he believed that the subject on the other end of the line was being disrespectful towards Ebony.
"[Gonzalez] said that he began—he became upset and at that time his friend Emanuel Meza had arrived at the residence. He wanted to go teach the subject a lesson. However, he made it a point to tell me that there was going to be no stabbing."
Gonzalez also said that "one of the subjects on the other end of the line had mentioned something about being a Loc and that upset him because he knows a Loc." Evidently, the individual in question had said "something to the effect of well, you know, you don't scare me because I'm a, I'm a Loc, which is a Norteno gang member." Gonzalez told Officer Cummings that he told the individual, "'No, you're not because I would know if you were.'" Gonzalez was upset at the use of the word, Loc, "[b]ecause he didn't believe the subject that was calling himself a Loc was, in fact, a Loc." This argument happened after the heated exchange over the disrespect shown to Garcia. Officer Cummings explained: "And I have prior knowledge that the word 'Loc' is referring to the Visalia Locos Street Gang. It's a subset of the Norteno criminal street gang."
Officer Cummings testified that Gonzalez said that, sometime after the phone call, he, Meza, and Garcia went to the house to confront the boys who had been on the phone; they got a ride from Ochoa in his black Mitsubishi Lancer. "[Gonzalez] said he wanted to fade one out[,] meaning he wanted to have a one-on-one fight with the subject who he was upset with that was on the phone with Ebony." Gonzalez gave Meza "a burgundy folding knife and his phone to hold" and started fist-fighting with Eric. Gonzalez said that Meza punched one of the boys at the door and then "started grabbing people and started acting strange." At one point, Meza showed Gonzalez a knife and said, "I got those fools."
After the fight, Gonzalez ran to the waiting Mitsubishi Lancer driven by Ochoa and got in; they waited for approximately three minutes for Meza to get in. Gonzalez said that Ochoa had a moniker, "ET." Officer Cummings described a moniker as "a nickname that people, friends will give each other."
Officer Cummings also interrogated Meza in connection with the investigation. "[Meza] said that he was, he was at Mr. Gonzalez's house and Ebony Garcia was on the phone talking with a subject who was claiming to be from a specific, what he described as, quote, 'hood,' end quote. Meaning a different subset of a Norteno criminal street gang." "Meza then said that he and Ebony Garcia and Mr. Gonzalez had went to the subject's residence. He said they got a ride by someone who owns—a friend of Mr. Gonzalez who owns a black car. He didn't know the subject's name." Meza further said "once the subjects arrived at the house and the subjects answered the door, they, they were standing off and they were both—I think he used the term, 'bowed up,' and he thought that a fight was about to occur and he reached in and struck one of the subjects at the door." Meza explained that "they began fighting back and forth. Mr. Gonzalez was fighting some of the subjects. Then he said at one point he was fighting one and then an additional subject had joined in so now he was fighting two at one time. He said that Mr. Gonzalez had turned his attention to help him and he said once he saw Mr. Gonzalez strike one of the subjects that was on top of him, he heard one of the subjects give out a groaning noise and fell off—fell to the side and the way he described it he was on the ground while the two subjects were on top of him."
Officer Mona Whaley
Officer Mona Whaley interrogated Ebony Garcia. Whaley described the interrogation:
"[Garcia] said that she had been ... in a phone altercation with a subject by the name of Eric [F.]. And she said that she knew Eric [F.]. She had been in some sort of relationship with him for approximately one year.
"She said it was an ongoing verbal altercation throughout the day where [Eric] was calling her, and she said every name in the book, which included 'hoe' and other names and then there had been some sort of dispute on some social media or something that was posted about her. She confronted [Eric] on the phone about this and they got into a verbal altercation and he continued to call her names.
"At some point her cousin, Ruben Gonzalez, had taken the phone from her and hung up the phone but that at some point they ended back on the phone together, Mr. Gonzalez and [Eric], and then ultimately Ruben ended up on the phone with Sebastian.
[¶]...[¶]
"She said that her cousin had confronted [Sebastian] about disrespecting Ebony and told [him] that it was disrespectful and at some point they exchanged gang slurs on the phone.
"She said that Sebastian had acted like he was up and coming and these were her words, 'an up and coming gang member,' and this upset Ruben and he called him out and stated that he was not and challenged him to a fight at some point on the phone.
[¶]...[¶]
"She said that [Gonzalez] got mad over it and felt it was disrespectful to him and her both."
"Ebony told Ruben that she would like to go over to the residence to actually speak to [Eric] and she said that Ruben also wanted to go over to the residence because he felt disrespected by Sebastian and wanted to confront him about this, so at some point she said that Ruben contacted a
friend by the name of Josh, who was later identified as Josh Ochoa, and they had asked Josh to respond to their house to come give them a ride to go over to the victim's house.
[¶]...[¶]
"[Garcia] knew that [Gonzalez] carried weapons because there was gang involvement and street activity."
Garcia further told Officer Whaley that "there was a subject by the name of Emmanuel Meza and that's who Mr. Gonzalez had asked to go with them as backup." Garcia said that "she knew that [Meza] did carry a knife but she didn't know if he had one that day." Garcia said that "Josh Ochoa responded to the residence to pick them up and drove them to the residence." She said that "none of the three guys had ever been to the residence before, so she had to specifically give them directions how to get there and she did so." Garcia described what occurred at the residence:
"When they first got to the residence, she said that she was leery about going up to the door because she was worried that something was going to happen between the boys and them getting in some sort of altercation, so she got out and partially walked up to the door by herself and then she said she said she went back to the car and said that they should turn around and go back home, and that was when Ruben and Emmanuel had told her they just wanted to go up there and talk so they all three went up to the door.
[¶]...[¶]
"[Garcia] said that when they all three got up to the door, it was unsure as to who knocked on the door but it appeared all three of the victims had came to the door approximately about the same time and at one point ... one of the guys had pushed Jeremiah when they first made contact. She said that it happened so fast that it was really difficult to describe but originally there was some sort of altercation in the beginning where somebody pushed Jeremiah and then Sebastian and Ruben were, 'mad-dogging each other,' in her terms. And then she said the next thing she knew was that Ruben and Eric were down on the ground fighting.
[¶]...[¶]
"She said [the fighting] was just all over the place. It was a mess, and that they were striking each other as if, 'in a shanking motion,' was her words."
Garcia noted "she did not see a knife in anybody's hands," but she "saw Jeremiah bleeding." Garcia said there was no issue of rival gang activity as everyone involved had a Northern gang affiliation or association. She said both sides told each other, "Fuck Norte." Garcia said that the purpose of going to the residence was personal, not gang-related. "She wanted to go talk to [Eric] and she brought the boys with her to be like her backup in case he hit her." "Her purpose was to talk." Garcia added that Gonzalez fought only with Eric. Garcia indicated that she herself was not involved in any gang but associated with people who were in gangs.
Officer Whaley interrogated Eric as well. Whaley described the interrogation:
"[Eric] said prior to the altercation he had been on the phone with a person by the name of Ebony. He said he had been in some sort of relationship with Ebony off and on and they had gotten into a verbal altercation.Eric said he "blacked out" during the incident and could not recall additional details. He confirmed Gonzalez only fought with him and did not confront anyone else.
"At some point the group that went over to the house decided to go over to the house and when they opened the door, then there was some [gang] slurs said between the two [e.g., 'tripping,' 'what's up,' and 'talking shit'] and then they all got in a [fist] fight.
[¶]...[¶]
"[Eric] said that when ... the three subjects first came up to the door, the person that he described without the face tattoo, which we later identified as Mr. Meza, had pushed Jeremiah and at some point [Eric] and [Gonzalez] got in a physical altercation. Eric [F.] ended up down on the ground and [Gonzalez] was stomping on him and beating on him."
Officer Whaley also interrogated Ochoa. Ochoa "stated that he had, in fact, been over at Ruben's house or they were all together that morning drinking beer until about 1:00 [p.m.]. [¶] At some point, he had left and was contacted by Ruben on the telephone and asked to come back and have his back and help him out because he needed a ride somewhere." Ochoa said he and Gonzalez would hang out and always had each other's back but Ochoa "almost backed out [and] didn't take them" this time. He finally agreed to give them a ride, noting, "'I ... thought they were going to go over and get in a physical fight over something that happened with Ebony.'" Gonzalez had told him that the reason for going over to fight was that "this person had disrespected his cousin." Ochoa said the others "were really excited before they got in the car but once they got in the car ... it got really quiet and that's when ... he had a feeling they were going to do something because it was too quiet." "Ebony gave [him] directions. He followed her directions and the other two were in the car with them."
Ochoa simply knew they were going to a house but did not know whose house it was or who lived there. Officer Whaley testified that there was no indication, in Ochoa's statement, that he was aware of any gang connections of the people whose house they were going to or of any gang-related reason for going there. Whaley recounted that "[Ochoa] said he was okay with taking [Gonzalez and the others] over to fight but he didn't know that they would stab each other." Ochoa also said that "he didn't specifically know [Gonzalez and Meza] had [weapons] on them that day," although, as a general matter, "he knew them to carry some sort of protection because, in his words, 'that's how the gang lifestyle was.'"
When they got to the residence, Ochoa "parked the car a little bit away" and around the corner from the residence; the car was perhaps 30 feet away from the house. He "told the three of them that he would wait there, so that if they needed to run back, they could run back to the car." Ochoa could see the house from where he parked his car; "[h]e said that he watched [the others] get out and go up to the house" but "at some point quit watching them because he was afraid of what was going to happen." He "heard them yelling some sort of gang slurs ... some reference to northern gang stuff." He also heard Jeremiah scream out. At "one point he said he got out of the vehicle and he was able to observe on the grassy area but at that point he said that everybody was all on top of each other. It was a big huge pile and everybody was fighting." He further explained that "they were yelling at each other and also Ebony was trying to yell at them to leave." Ochoa confirmed "he did not leave the outside of his vehicle at any time."
After the fight, Meza, Gonzalez, and Garcia "all ran towards [Ochoa's] car and got in." Gonzalez, who was "[v]ery excited" and "very pumped up," "thanked them for handling his family's shit." There may even have been a knuckle bump or something like that, but Ochoa did not participate. Ochoa dropped the other three at Gonzalez's house and then went straight home. On his way home, a number of patrol cars drove by with their lights and sirens on. Ochoa texted Gonzalez and "told him that the pigs were headed that way and to be careful."
Officer Whaley specifically asked Ochoa about gang membership but Ochoa did not claim membership in any gang or subset. When Whaley asked about "who he wanted to be housed with when he was put in jail or who he had previously been housed with," he said "he would prefer to be with the Northerners and admitted that even though he wasn't a full blown Northerner, that he associate[ed] with them and he would have their back." Basically, he said he was "associated with the Northerners" and had been housed with them before.
Officer Austin Huerta
Officer Austin Huerta testified as the People's gang expert. He addressed the Nuestra Familia or Norteño gang, which he described as both a "prison gang" and a "street gang." He explained that Norteño gang members do not act in ways so as to disrespect each other as "[t]hat's just one thing you're not supposed to do." The Norteños' rival gang is the Southerners or Sureños.
Huerta testified that the Norteño street gang in Visalia was composed of five subsets or cliques: North Side Visa or NSV; North Side Visa Boys or NSVB; North Side Varrios Locos or NSVL; North Side Visa Youngsters or NSVY; and Mexican Gangster Boys or MGB. Huerta noted that subsets represented particular neighborhoods and they "do their own thing" but also "work together" for "common goal[s]," including for the Nuestra Familia. He described a hierarchical system: "Generally there's a squad leader who's in charge of the specific neighborhoods. They will have channels for each city as well, which then they'll talk back up to whoever is running the County, who then runs with the [Nuestra Familia]." He said there were thousands of Norteños in Tulare County.
Huerta described the primary activities of the collective Tulare County Norteño cliques as encompassing "[s]hootings, homicides, auto theft, [and] drug sales." Huerta also described two predicate offenses. One predicate offense was a murder committed by members of the Visalia subset, NSV. Huerta testified that certain NSV members "were ordered by the head of security for Tulare County to commit that crime." Huerta testified this crime was an example of the primary activities of the Tulare County Norteño gang and its subsets.
Huerta described a second predicate offense, a shooting directed at "southern gang members" by members of two Visalia subsets, NSVL and NSVB. Huerta testified this crime "show[ed] [the subsets] working together against their common enemy which is the Southerners."
Huerta opined that "[Meza] is a North Side Visa Boy gang member in the City of Visalia." Huerta's opinion was "[b]ased on the recent contacts with [Meza] as well as [his] participation in crimes," along with the factors that "[Meza] self-admits he's a Norteno," "[h]e wears the colors," and he has visible tattoos. As for Gonzalez, Huerta opined, "He's an active [North Side Visa] gang member in the City of Visalia." Huerta's opinion was based on Gonzalez's "[police] contacts and continually admitting he's a Norteno gang member." Several police contacts showed that, at various times, Gonzalez had acknowledged being a gang member, was wearing gang colors, admitted he had a moniker, and had visible gang tattoos.
With regard to Garcia, Huerta opined that "[s]he associates with Norteno gang members." Huerta did not specify which subset or subsets Garcia associated with in Visalia. Similarly, with regard to Ochoa, Huerta opined, "I believe he also associates with Norteno gang members," but did not specify any particular subset or subsets in this regard. Garcia and Ochoa did not have prior gang-related police contacts, nor was any evidence presented that they had gang tattoos or would wear gang colors. Huerta said his opinion that they associated with Norteno gang members was simply "[b]ased on the active participation in [the instant] incident."
The prosecutor posited a hypothetical based closely on the facts of the incident underlying the instant charges. In the hypothetical, she referred to the driver of the car as a known associate of the gang. Ochoa's counsel objected: "The question is phrased as though [the driver of the car is] already an associate with the gang prior to [the current incident] occurring and [Officer Huerta] testified just a few minutes ago that his only basis for [Ochoa] being an associate of the gang is [the instant] crime. He provided no other information and testimony as to why [Ochoa] is an associate of the Norteno street gang in his testimony." In response, the prosecutor referred Huerta to Officer Whaley's testimony to the effect that Ochoa had indicated he "prefers to be housed with Northerners and has been housed with Northerners in the past." Huerta then opined that Ochoa's housing classification "means [Ochoa] is an active associate or active Norteno gang member," although he did not connect Ochoa to the Tulare County Norteño gang or any specific subset within Visalia itself, where Ochoa lived.
The prosecutor went back to her hypothetical and asked Huerta: "Based upon the hypothetical, do you have an opinion as to if that - the conduct described in that hypothetical can be done to promote or benefit a criminal street gang?" Huerta responded in the affirmative and opined: "So if you have multiple gang members that are working together to go confront someone based on a respect issue, they're benefitting the gang by, by bolstering their status. They're going to handle the issue that they see as a respect issue between them. By going forward, they're using weapons in attacking those individuals. By doing that, not only are they bolstering their own status as Norteno but they're defending their honor which entails defending the gang."
On cross-examination Huerta acknowledged that individuals were sometimes housed with a particular gang in jail for "safety reasons" because they had grown up with people in that gang. In other words, a person's housing classification may not reflect active participation in gang activity as much as an ongoing affiliation with the gang. Specifically, Huerta testified: "If he's going to that tank, then he's an affiliate."
Huerta also acknowledged, on cross-examination, that not every violent crime committed by gang members benefitted the street gang at issue. On the contrary, crimes that were unauthorized (committed without permission from higher ranking figures) or crimes against fellow gang members, reflected internal weakness or disrespect within the gang and actually represented a violation of the gang's rules. Such crimes were not beneficial to the gang. Huerta also acknowledged that crimes that were committed to defend the honor of a gang member's family did not necessarily benefit the gang.
In her closing comments, the prosecutor noted that the evidence showed that Ochoa was merely "an associate" of the Norteño gang but his participation in the instant incident elevated him to an active participant in the gang (the prosecutor did not connect Ochoa to a particular local subset).
DISCUSSION
As to Ochoa, the People filed an information with a murder charge and two attached gang enhancement allegations, an accessory charge with one attached gang enhancement allegation, and a street terrorism charge (the substantive gang offense). The murder charge and attached gang enhancements were not alleged against Ochoa in the complaint and accordingly were not included in the magistrate's commitment order. The magistrate had held Ochoa to answer only for the accessory charge with the attached gang enhancement, and the street terrorism charge.
Ochoa filed a motion, under section 995, to dismiss all charges and gang enhancements alleged against him in the information. The superior court granted the motion as to the murder charge and attached gang enhancement allegations, the gang enhancement allegation attached to the accessory charge, and the street terrorism charge. The court denied the motion as to the accessory charge itself. The People now challenge the superior court's rulings on Ochoa's motion, with the exception of the ruling upholding the accessory charge. We will affirm the superior court.
Applicable Law
In California, felonies are prosecuted "either by indictment or, after examination and commitment by a magistrate, by information." (Cal. Const., art 1, § 14.) The procedure for charging by information is addressed in section 739, which provides, in relevant part:
"When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed."
The defendant may move to set aside the charges in an information by bringing a motion pursuant to section 995 in the superior court. Under section 995, a court properly sets aside all or part of an information upon finding that the defendant "[has] been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B); see People v. Mower (2002) 28 Cal.4th 457, 473 (Mower) ["'"'Reasonable or probable cause' means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused."'"].)
"'[I]f the defendant moves to dismiss the information ... the question of his guilt or innocence is not before the court nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. On the contrary, the court should decide from the evidence adduced at the preliminary hearing, without attempting to reconcile conflicts or judge the credibility of the witnesses, whether there is reasonable or probable cause to believe the defendant guilty of the offense charged. And, there is sufficient evidence to require the superior court to deny defendant's motion if it raises a clear and distinct inference of the existence of the essential elements of the crime charged.'" (People v. Barba (2012) 211 Cal.App.4th 214, 227-228 (Barba); see People v. Slaughter (1984) 35 Cal.3d 629, 639-640 (Slaughter).)
In reviewing a section 995 motion, "the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer." (People v. Laiwa (1983) 34 Cal.3d 711, 718.) Insofar as the motion "rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the [defendant] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt.'" (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.) On review, a magistrate's express "findings of fact must be sustained if supported by substantial evidence." (Slaughter, supra, 35 Cal.3d at p. 639.) "If he has not rendered findings, however, the reviewing court cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses." (Id. at p. 638.) In the absence of express factual findings or "where the facts are undisputed, the determination of probable cause 'constitute[s] a legal conclusion which is subject to independent review on appeal.'" (People v. Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339; Slaughter, supra, 35 Cal.3d at p. 638.)
Murder Charge
(1) "Natural and Probable Consequences" Doctrine in General
As stated above, the murder charge and attached gang enhancement allegations were not included in the complaint or commitment order but, rather, appeared for the first time, in the information. The superior court dismissed the murder charge and attached gang enhancement allegations in granting Ochoa's section 995 motion as to this count. We will affirm the superior court as to the dismissal of the murder charge.
"'Murder is the unlawful killing of a human being [committed] with malice aforethought.'" (People v. Swain (1996) 12 Cal.4th 593, 603; § 187, subd. (a).) Here, the People argue that Ochoa is liable for Jeremiah's murder as an aider and abettor, pursuant to section 31, which provides in relevant part that "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principles in any crime so committed." A person may be held liable for criminal conduct as an aider and abettor in two ways: (1) under a "direct" liability theory of aiding and abetting and (2) under an "indirect" liability theory based on the "natural and probable consequences" doctrine.
Under the direct liability theory, "[s]omeone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (CALCRIM No. 401 (italics added); People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman) ["[An aider and abettor is one who acts] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense."].) Under this theory, the mental state of an aider and abettor is no less culpable than that of the actual perpetrator; indeed, "an aider and abettor's mental state must be at least that required of the direct perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) In the case of murder, this means that "the aider and abettor must know and share the murderous intent of the actual perpetrator." (Ibid.)
Under the natural and probable consequences doctrine, liability is "'derivative,' that is, it results from an act by the perpetrator to which the accomplice contributed." (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) "'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.'" (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina); People v. Chiu (2014) 59 Cal.4th 155, 164 (Chiu) ["The natural and probable consequences doctrine is based on the principle that liability extends to reach 'the actual, rather than the planned or "intended" crime'"].) "Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (McCoy, supra, 25 Cal.4th at p. 1117, italics added.)
A crime is the natural and probable consequence of an intended or target crime if its commission by the perpetrator was reasonably forseeable. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1054 [aider and abettor is derivatively liable for reasonably foreseeable consequence of principal's criminal act knowingly aided and abetted].) "The ... question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably forseeable." (Medina, supra, 46 Cal.4th at p. 920; People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [inquiry is strictly objective and does not depend on defendant's subjective state of mind].) Thus, aider and abettor liability under the natural and probable consequences doctrine requires only that, under the applicable circumstances, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Medina, supra, at p. 920 ["A reasonably forseeable consequence is to be evaluated under all the factual circumstances of the individual case ... and is a factual issue to be resolved by the jury."]; People v. Canizalez (2011) 197 Cal.App.4th 832, 852 ["Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime."].)
Our Supreme Court has succinctly illuminated the difference between the direct liability aider and abettor theory and the natural and probable consequences doctrine:
"There are two distinct forms of culpability for aiders and abettors. 'First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted."'" (Chiu, supra, 59 Cal.4th at p. 158.)
Here, the People rely on the natural and probable consequences doctrine in charging Ochoa with Jeremiah's murder. They posit that Ochoa directly aided and abetted an assault on Jeremiah, Sebastian, and Eric. They further posit that Jeremiah's murder was a "natural and probable" or "reasonably forseeable" consequence of the assault.
The People also posit that Ochoa directly aided and abetted the offense of disturbing the peace by fighting and, further, that Jeremiah's murder was a natural and probable consequence of this offense. Under section 415, subdivision (1), the offense of disturbing the peace by fighting, a misdemeanor, is committed by challenging someone to fight in a public place. However, the People have not addressed the elements of this offense and consequently its applicability here is unclear. We will therefore not discuss it further.
(2) The Assault on Jeremiah, Sebastian, and Eric by Meza and Gonzalez
The People argue, as an initial matter, that Ochoa directly aided and abetted the assault on Jeremiah, Sebastian, and Eric perpetrated by Meza and Gonzalez. "The statutory phrase 'aid and abet' is a term of art, not commonly used or understood by laypersons, and represents a legal theory under which one may be held vicariously liable as a principal for the criminal acts of another." (People v. Campbell (1994) 25 Cal.App.4th 402, 412 (Campbell).)
A person directly "aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; Beeman, supra, 35 Cal.3d at p. 561; Campbell, supra, 25 Cal.App.4th at p. 409.) Thus, a person aids and abets the commission of a crime when, knowing the perpetrator's criminal purpose, he acts with the "intent or purpose of committing or encouraging or facilitating the commission of the crime." (CALJIC No. 3.01.) In other words, in addition to doing the requisite act, the person must intend to facilitate that offense's commission. (People v. Montoya (1994) 7 Cal.4th 1027, 1039 (Montoya) [a person aids or abets a particular crime if, knowing of the perpetrator's unlawful purpose, he intends, by his act of aid, to commit the offense or facilitate its commission]; People v. Vasquez (1972) 29 Cal.App.3d 81, 87 ["An aider and abettor's fundamental purpose, motive and intent is to aid and assist the perpetrator in the latter's commission of the crime."].)
"This focus on mental state instead of conduct in explaining culpability under a theory of aiding and abetting reflects judicial awareness of the fundamental principle that criminal liability does not arise from conduct alone but rather from conduct accompanied by a guilty state of mind, that is, 'a union, or joint operation of act and intent.'" (Campbell, supra, 25 Cal.App.4th at p. 413, italics added; § 20.) "As a theory of liability, aiding and abetting must be consistent with this principle." (Campbell, supra, at p. 413.) "To this end, the term 'abet' in the phrase 'aid and abet' serves to supply the mental element necessary to justify the imposition of criminal liability." (Ibid.)
In short, the phrase "aid and abet" represents a legal theory, with each term within the phrase performing a function necessary to justify the imposition of criminal liability. "'Aid' requires some conduct by which one becomes 'concerned in the commission of a crime' (§ 31), whether it be to aid (i.e., assist or supplement), promote, encourage, or instigate." (Campbell, supra, 25 Cal.App.4th at p. 413.) "'Abet,' on the other hand, requires that this conduct be accompanied by the requisite criminal state of mind, i.e., knowledge of the perpetrator's unlawful purpose and with the intent that it be facilitated." (Id. at pp. 413-414; McCoy, supra, 25 Cal.4th at p. 1117 ["An aider and abettor must do something and have a certain mental state."].)
The evidence adduced at the preliminary hearing showed that Ochoa aided the commission of the assault on Jeremiah, Sebastian, and Eric by driving Gonzalez, Meza, and Garcia to the home of Jeremiah and Sebastian, where the assault took place. Thus, Ochoa engaged in conduct that made him "concerned in the commission of crime." (§ 31.)
The evidence is less clear on the issue of Ochoa's intent in driving the trio to participate in the confrontation. (See People v. Rios (2013) 222 Cal.App.4th 542, 567-568 ["Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense."].) On the one hand, the evidence showed that Ochoa was well aware that Gonzalez and Meza were gang members accompanying Garcia to confront someone who they believed had disrespected her. Ochoa nonetheless drove Gonzalez and Meza to the house based on directions provided by Garcia, and, moreover, commented to Officer Whaley that he "had Gonzalez's back." After the attack, Ochoa drove Gonzalez, Meza, and Garcia to Gonzalez's house, and subsequently, upon observing police cars with lights and sirens on, texted Gonzalez to alert him and to urge him to be careful. On the other hand, there is no evidence that Ochoa helped to plan the attack or actively encouraged its commission. Moreover, Ochoa said he did not participate in the knuckle bumps the others possibly engaged in to celebrate the commission of the attack. Finally, although Garcia, Gonzalez, and Meza each gave extensive statements to the police, none of them attributed any role to Ochoa besides driving them to and from the house where the assault occurred.
Although, there is some ambiguity as to whether Ochoa shared a common purpose with the actual perpetrators of the assault, Ochoa's conduct in transporting Gonzalez, Meza, and Garcia, reasonably supports an inference that knowing the perpetrators' criminal purpose, he had the intent to facilitate the commission of the assault on Jeremiah, Sebastian, and Eric. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123 (Mendoza) [an aider and abettor must have (1) knowledge of the perpetrator's purpose, and (2) the intent to encourage or facilitate that purpose].) In turn, we conclude there is probable cause to believe that Ochoa directly aided and abetted the commission of the assault.
(3) Murder as a Natural and Probable Consequence of the Assault
Once the necessary mental state for aiding and abetting is established, "the aider and abettor is guilty not only of the intended, or target, offense," here, assault, "but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense." (Mendoza, supra, 18 Cal.4th at p. 1123; Prettyman, supra, 14 Cal.4th at p. 260 [natural and probable consequences doctrine "is based on the recognition that 'aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion'"].) "'[A]lthough variations in phrasing are found in decisions addressing the [natural and probable consequences] doctrine—"probable and natural," "natural and reasonable," and "reasonably foreseeable"—the ultimate factual question is one of foreseeability.'" (Medina, supra, 46 Cal.4th at p. 920.) "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case" and "is a factual issue to be resolved by the jury." (Ibid.)
Here, Gonzalez and Meza, the direct perpetrators of the target offense, i.e., the assault, also murdered Jeremiah. Accordingly, to the extent Ochoa directly aided and abetted the assault and the murder was a reasonably foreseeable consequence thereof, Ochoa is guilty of the murder as well. In light of our conclusion, above, that there is probable cause to believe that Ochoa directly aided and abetted the assault, the same inquiry as to murder turns on whether the murder was a reasonably foreseeable consequence of the assault. (Medina, supra, 46 Cal.4th at p. 920 ["'[T]o be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough."'"].)
As the People concede, our Supreme Court has clarified that application of the natural and probable consequences doctrine permits a conviction for second degree murder but not first degree murder. (See Chiu, supra, 59 Cal.4th at p. 166 [where a defendant shares the intent of the perpetrator only as to a particular target offense but not murder, punishment for first degree murder would not be commensurate with the defendant's culpability].)
The preliminary hearing evidence shows that Ochoa told the police "he was okay with taking [Gonzalez and Meza] over to fight but he didn't know that they would stab each other." It also appears that Gonzalez and Meza downplayed their intentions as reflected in the fact that they told Garcia all they would do is talk to the boys. Furthermore, although Ochoa knew that Gonzalez and Meza lived the "gang lifestyle" and generally carried weapons, he did not specifically know that they had weapons on them at the time in question.
Regarding the broader context of the target and actual offenses (i.e., assault and murder, respectively), the evidence shows that Ochoa was not present when the underlying telephonic disputes involving Garcia and Gonzalez on the one hand and Eric and Sebastian on the other, took place, and when Gonzalez, Garcia, and Meza decided to go over to the boys' house. Rather, Gonzalez called Ochoa after the fact to ask for a ride to the house. Ochoa therefore did not observe, first-hand, the nature of the dispute, its level of gravity, and the discussions between Garcia, Gonzalez, and Meza that led them to decide to go over to confront the boys.
In addition, there is no evidence that Ochoa was aware the underlying dispute had gang-related underpinnings. Ochoa told Officer Whaley that Gonzalez had only referenced Garcia's dispute with Eric. Officer Whaley also noted that Ochoa did not know whose house they were heading to or where it was located; Ochoa therefore had no independent basis to suspect that gang rivalries or gang tensions were at issue. For these reasons, the confrontation cannot reasonably be described as a gang confrontation from the point of view of a reasonable person in Ochoa's position.
There is also no evidence that Ochoa, who was not a gang member, was aware of the extent of Gonzalez's or Meza's engagement (or lack thereof) in violent, gang-related activities.
Although, as stated above, the evidence shows, under a probable cause standard, that Ochoa directly aided and abetted the assault at issue, we conclude it does not establish probable cause to believe that, for a reasonable person in Ochoa's position, Jeremiah's murder was a foreseeable consequence thereof, and in turn, that Ochoa is guilty of murder. The superior court's ruling dismissing the murder charge is therefore affirmed.
The People cite various cases in support of their argument that probable cause as to the objective foreseeability of the murder was established here. However, every case cited by the People is distinguishable because the defendants in each case were gang members who, along with their fellow gang members, engaged in fights with members of rival gangs (either actual or perceived), and further, in some of these cases, the target offense was assault with a deadly weapon unlike simple assault, the target offense at issue here. These cases are inapposite because the evidence adduced at the preliminary hearing here did not show that Ochoa was a gang member with knowledge of the activities of the gang or that the fight at issue could be reasonably characterized as a gang confrontation from the standpoint of a reasonable person in Ochoa's position.
Street Terrorism Charge
The magistrate bound Gonzalez, Meza, Garcia, and Ochoa over for trial on the street terrorism charge alleged in the complaint against each of them. With respect to this charge against Ochoa, the magistrate stated: "I find probable cause to believe that, that was committed and that it was committed by Joshua Ochoa as a participant because he doesn't have to be a gang member." All the defendants brought section 995 motions in the superior court challenging the magistrate's probable cause determination as to the street terrorism charge against each of them. The superior court, after conducting an extensive hearing on the motions, denied the motions of Gonzalez, Meza, and Garcia, but granted Ochoa's motion as to this charge.
The People challenge the superior court's dismissal, pursuant to Ochoa's section 995 motion, of the section 186.22, subdivision (a) charge in the information. Accordingly, we must decide whether the evidence adduced at the preliminary hearing revealed probable cause to believe Ochoa was guilty of this offense. We will affirm the court's ruling.
The substantive gang offense applies to "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).) It is not a crime to be a gang member, however (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130-1131 (Rodriguez)), and "[n]ot every crime committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) The substantive gang offense targets "gang members who [act] in concert with other gang members in committing a felony regardless of whether such felony [is] gang related." (Rodriguez, supra, at p. 1138.) The offense requires the commission of felonious criminal conduct by at least two members of the criminal street gang. (Id. at p. 1132.)
The substantive gang offense has three elements: "[f]irst, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130; People v. Castenada (2000) 23 Cal.4th 743, 749-750, 752 (Castenada) ["section 186.22[, subd.] (a)'s plainly worded requirements" are "criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang"]; Albillar, supra, 51 Cal.4th at p. 56 [same].)
Since "[t]he gravamen of the substantive offense set forth in section 186.22[, subdivision] (a) is active participation in a criminal street gang," we will focus on whether the evidence showed, under the probable cause standard, that Ochoa was an "active participant" in a county-level Norteño street gang in Tulare County. (Albillar, supra, 51 Cal.4th at p. 55.) In Castenada, the California Supreme Court clarified: "[W]e construe the statutory language 'actively participates in any criminal street gang' (§ 186.22, subd. (a)) as meaning involvement with a criminal street gang that is more than nominal or passive." (Castenada, supra, 23 Cal.4th at p. 747 (italics added).) However, active participation does not require that "a person devot[e] 'all, or a substantial part of his time and efforts' to the gang." (Id. at p. 752.) Also illustrative is the Castenada court's analysis of why the defendant in that case, who was convicted of robbery and related offenses along with street terrorism, was properly found to be an active gang participant: "To summarize, through evidence of the crimes [the] defendant here committed, his many contacts on previous occasions with the Goldenwest criminal street gang, and his admissions by bragging to police officers on those occasions of gang association or membership, the prosecution presented sufficient proof that [the] defendant 'actively participate[d]' in a criminal street gang within the meaning of section 186.22[, subdivision] (a)." (Id. at p. 753.)
As set forth above, at the preliminary hearing, the People's gang expert testified: "I believe [Ochoa] also associates with Norteno gang members," but, although Nortenos in Visalia were connected to particular subsets, the expert did not identify a particular subset for Ochoa. The gang expert testified that his opinion that Ochoa associated with Norteño gang members was based solely on Ochoa's "participation in [the instant] incident." There was no evidence of any prior gang-related police contacts involving Ochoa. Similarly, there was no evidence that Ochoa had gang tattoos, wore gang colors, or possessed gang memorabilia. Nor was there any evidence that Ochoa had relationships with gang members other than with Gonzalez, who was a long-time friend.
Although Ochoa was a long-time friend of Gonzalez, there is no evidence he had any relationship with Garcia or Meza. Indeed, Meza did not know Ochoa's name and referred to Ochoa as Gonzalez's friend who owned a black car.
Aside from his connection with Gonzalez, the only evidence that Ochoa associated with Norteños or a Norteño gang was Officer Whaley's testimony that, when asked about his jail housing classification, Ochoa said he "prefers to be housed with Northerners and has been housed with Northerners in the past." In this context, Ochoa also "admitted that even though he wasn't a full blown Northerner ... he associates with them and he would have their back." On the issue of Ochoa's jail classification, the People's gang expert opined that, "If he's going to that tank, then he's an affiliate." However, the gang expert acknowledged that a person's classification may simply reflect an affiliation based on growing up around people who were members of the gang. (See People v. Sanchez (2017) 18 Cal.App.5th 727, 750 ["[Jail classifications may] connote merely a passive [or] nominal ... affiliation [with a gang], and may be motivated by a need for protection because of neighborhood- or family-based affiliations."].)
Relying on People v. Elizalde (2015) 61 Cal.4th 523, Ochoa argues his admissions in response to questions about his jail classification are inadmissible in the absence of evidence that he was Mirandized prior to being questioned in this regard. However, since Ochoa did not object on this ground at the preliminary hearing, he has forfeited the issue on appeal.
Although Ochoa's status as an associate of the gang is relevant to an assessment of whether there was probable cause to believe that he was an active participant in the gang, it does not, by itself, equate to active participation in the gang, "in the sense of participation that is more than nominal or passive." (Rodriguez, supra, 55 Cal.4th at p. 1130.) Recognizing that an associate of the gang is not the same as an active participant, the prosecutor argued that Ochoa was "an associate" of the Norteño gang until his participation in the instant incident, which elevated him to the status of an active participant. However, the prosecutor's reasoning is persuasive only to the extent that Ochoa was aware that Gonzalez had a gang-related motive for going over to confront the boys and shared that motivation himself. Here there is no evidence that Ochoa had a gang-related motive for providing a ride to the others and, in turn, no probable cause to believe he was an active participant in the gang as a result of his participation in the instant incident.
In holding Gonzalez and Meza to answer for the substantive gang offense, the magistrate stated that, based on Gonzalez's police statement and the testimony of the People's gang expert, he was of the view that Gonzalez had mixed motives in going over to the house, i.e., he went partly because of the dispute involving Garcia but partly to confront and punish Sebastian for disrespecting the gang. However, to the extent these comments represent a factual finding regarding Gonzalez's motives for going there, such a finding by itself is not dispositive of the question whether there was probable cause to hold Ochoa to answer for the substantive gang offense or gang enhancement allegations attached to the murder and accessory charges (see below).
At the preliminary hearing, Officer Whaley testified that nothing in Ochoa's statement indicated that he knew of any gang-related reason for going to the house, nor was there any other evidence that he did. Ochoa was not present when the decision to go over to Jeremiah and Sebastian's house was made and Officer Whaley testified that Ochoa said Gonzalez had asked for the ride in order to settle Garcia's dispute with her former boyfriend. In addition, after the fight, Gonzalez "thanked [the others] for handling his family's shit." Even assuming Ochoa had some awareness that Gonzalez had mixed motivations for wanting to confront Eric, Sebastian, and Jeremiah—i.e., that Gonzalez wanted to avenge both Garcia as well as the perceived disrespect shown to him, a Norteño gang member, by Sebastian—such awareness on Ochoa's part does not automatically mean Ochoa shared one or both of Gonzalez's motivations.
Indeed, the fact that Ochoa himself was not a gang member undercuts the possibility that he knew of or would share Gonzalez's gang-related motivation for confronting the boys. At the same time, Ochoa's friendship with Gonzalez could readily explain why Ochoa would agree to give a ride to Gonzalez and the others for their own purposes. The only evidence connecting Ochoa to the gang was his association with Gonzalez and his jail classification. There was no evidence, as to Ochoa, of gang tattoos, gang colors, gang memorabilia, police contacts, prior actions taken on behalf of the gang, or even an association with a local subset.
Under the circumstances—i.e., a lack of evidence to show that Ochoa was aware of Gonzalez's gang-related motive and a further lack of evidence to show a close connection between Ochoa and the gang—we cannot reasonably infer that his present actions reflected a desire to actively support, act on behalf of, or participate in the gang. (See People v. Herrera (2006) 136 Cal.App.4th 1191, 1205 ["'"'"It is axiomatic that '[a legal] inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guesswork.'"'"'"].) Doing so would be tantamount to assigning guilt by association.
We therefore conclude that the evidence adduced at the preliminary hearing did not support "a clear and distinct inference" that Ochoa was an active participant in a Tulare County Norteño gang. (Barba, supra, 211 Cal.App.4th at pp. 227-228.) In turn, the evidence does not reflect probable cause to believe that Ochoa is guilty of the street terrorism charge. (Mower, supra, 28 Cal.4th at p. 473 ["'"'Reasonable or probable cause' means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.'"'"].) Accordingly, we affirm the superior court's ruling, pursuant to Ochoa's section 995 motion, setting aside this charge.
Gang or Street Terrorism Enhancement Attached to Accessory Charge
A section 186.22, subdivision (b)(1)(A) gang enhancement was attached to the accessory charge alleged against Ochoa in the complaint. Section 186.22, subdivision (b)(1)(A) provides for "an additional term of two, three, or four years" upon application of the gang enhancement set forth in section 186.22, subdivision (b)(1).
The magistrate determined "there was probable cause to believe the crime of accessory after the fact, a violation of Penal Code Section 32 was committed by [Ochoa]" and "that the special allegation under [section] 186.22[, subdivision (b)] does apply there." Subsequently, the superior court in ruling on Ochoa's section 995 motion, stated: "[The motion] is denied on the accessory after the fact [charge]" but "it's granted on the gang allegation." We affirm the superior court.
The gang enhancement (§ 186.22, subd. (b)(1)) applies to "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." Application of the enhancement requires proof of the existence of a criminal street gang and hinges on a two-pronged test. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) Under this test, first, the underlying felony must be "gang-related" in that it was "committed for the benefit of, at the direction of, or in association with a criminal street gang"; and second, the defendant must have committed the underlying felony "'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (Albillar, supra, 51 Cal.4th at pp. 60, 64.) Albillar explained that "[t]he enhancement set forth in section 186.22[, subdivision] (b)(1) does not pose a risk of conviction for mere nominal or passive involvement with a gang." (Id. at p. 67.) "Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Id. at p. 68.)
Although gang membership is not an element of the enhancement, evidence of gang membership can nevertheless bolster the prosecution's theory on the elements it is required to prove. (People v. Sanchez (2016) 63 Cal.4th 665, 698-699; People v. Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez (2004) 33 Cal.4th 1040, 1044-1049; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541.) In other words, "'[g]ang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Villa-Gomez, supra, at p. 540.)
Here, the second prong of the enhancement statute is not in play, as the evidence supports a clear inference that the defendant assisted gang members in the commission of criminal acts. (See Albillar, supra, 51 Cal.4th at p. 68 ["[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members."].) The dispositive question pertains to the first prong of the enhancement statute, that is, whether the evidence at the preliminary hearing showed, under the probable cause standard, that Ochoa's commission of the crime was gang-related, in that he acted for the benefit of, at the direction of, or in association with a Norteño street gang in Tulare County. The People contend the evidence at the preliminary hearing constituted probable cause to believe that Ochoa acted in association with the gang.
An assessment of whether Ochoa's participation was gang-related would turn on whether Ochoa was aware of Gonzalez's gang-related motivation and shared that motivation. Here, there is no evidence that Ochoa was aware of Gonzalez's gang-related motivation, and even assuming Ochoa was aware of Gonzalez's gang-related motivation, there is no basis to infer that Ochoa shared that motivation.
Ochoa was not present when the underlying telephonic arguments occurred and the decision to go to Jeremiah and Sebastian's house was made; rather, Gonzalez subsequently called Ochoa and asked him for a ride. Ochoa was Gonzalez's friend and could simply have acquiesced in that capacity. Ochoa was not a gang member, as the prosecutor herself acknowledged. The only evidence connecting Ochoa to the gang was his association with Gonzalez and his jail classification. There was no evidence that Ochoa had gang tattoos, wore gang colors, possessed gang memorabilia, had a history of police contacts, had undertaken prior actions on behalf of the gang, or even had an association with a local subset. (See Albillar, supra, 51 Cal.4th at p. 62 ["[if the] defendants came together as gang members" to commit the offenses at issue, it follows "that they committed these crimes in association with the gang"].)
Under the circumstances—i.e., a lack of evidence to show that Ochoa was aware of Gonzalez's gang-related motive and a further lack of evidence to show a close connection between Ochoa and the gang—we cannot reasonably infer that Ochoa's actions were gang-related. (People v. Franklin (2016) 248 Cal.App.4th 938, 951 ["speculation, supposition and suspicion are patently insufficient to support an inference of fact"]; see People v. Ochoa (2009) 179 Cal.App.4th 650, 657 ["'[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.'"].)
We conclude the evidence did not support a "clear and distinct" inference that Ochoa's role as an accessory was gang-related. (Barba, supra, 211 Cal.App.4th at pp. 227-228.) In turn, the evidence did not reflect probable cause to believe that the gang enhancement is applicable to Ochoa in connection with the accessory charge. We therefore affirm the trial court's ruling setting aside the gang enhancement allegation attached to the accessory charge.
Gang or Street Terrorism Enhancements Attached to Murder Charge
The People also attached two gang enhancements to the murder charge alleged against Ochoa in the information. The gang enhancements at issue were alleged pursuant to section 186.22, subdivision (b)(1)(C) and (b)(5), respectively. Both allegations pertain to the gang or street terrorism enhancement set forth in section 186.22, subdivision (b)(1) (see above). The difference is that, in connection with a murder charge, section 186.22, subdivision (b)(1)(C) provides for an additional term of imprisonment of 10 years while section 186.22, subdivision (b)(5) precludes the possibility of parole "until a minimum of 15 calendar years have been served."
Since the superior court set aside the murder charge, the gang enhancement allegations were necessarily set aside as well. Since we have affirmed the superior court's determination as to the murder charge, we similarly need not address the gang enhancements attached thereto. In any event, the gang enhancements attached to the murder charge are not supported by probable cause for the same reasons that the gang allegation attached to the accessory charge is not supported by probable cause (see above).
DISPOSITION
The court's ruling on the defendant's section 995 motion is affirmed.
/s/_________
SMITH, Acting P.J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
ELLISON, J.