Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2007010031, Kevin G. DeNoce, Judge.
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Daniel Elija Ramirez appeals from the judgment following his conviction by jury of two counts of first degree murder (counts 1 and 3), and assault with a firearm. (Pen. Code, §§ 187, subd. (a)/189; 245, subd. (a)(2).) The jury found gang benefit enhancements as to each crime to be true. (§ 186.22, subd. (b)(1).) It also found personal firearm use (§§ 12022.5, subd. (a); 12022.53, subd. (d)), active gang member special circumstance (§ 190.2, subd. (a)(22) and multiple murder commission (§ 190.2, subd. (a)(3) allegations as to each murder to be true. The trial court sentenced appellant to two consecutive terms of life without parole for the first degree murders, with a determinate sentence of seventy years (two consecutive twenty-five-year-to-life firearm enhancement terms and two consecutive ten-year gang enhancement terms); it suspended his sentence for the assault with a firearm. Appellant contends that the court committed prejudicial error by refusing to sever the count 1 murder from the count 3 murder. He also challenges the sufficiency of the evidence to support the count 3 murder active gang member special circumstance and gang enhancement. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
Prosecution Evidence
Appellant belonged to the Varrios Simi Valley (VSV) gang when he killed Angel Luevano in 2003, and in 2007 when he killed Luis Torres and assaulted Omar Aguilar with a firearm. The 2003 and 2007 crimes scenes are within a block of each other, inside VSV territory. In 2007, appellant and his accomplice walked to the crime scene, within a block of their residence.
Simi Valley Gang Culture
Gang expert Heather Tallent, a former Simi Valley police officer, described gang culture generally and within Simi Valley. Gang members typically occupy a territory and mark it with the gang's graffiti. Gangs use such graffiti, signs, visible tattoos, clothing, demeanor and words to intimidate rival gangs and other members of the community. Gangs prohibit members from involving the police or "ratting" on the gang. Gangs also intimidate community members to discourage ratting or cooperating with the police. Gang leaders can order that a rat be killed.
In Simi Valley, VSV is a Hispanic gang that was founded in the 1970's. VSV stole money from first generation Americans and Mexican nationals. Some of those victims formed a rival Simi Valley gang, called West Side Locos (WSL). Another Hispanic Simi Valley gang called Brown Familia is also called "BLF."
Police officers refer to VSV territory as the "Ashlands, " and it encompasses the area between 1st and 5th Streets, north of Royal Avenue and south of Los Angeles Avenue. Like other southern Hispanic gangs, VSV pays allegiance to "La Eme, " or the Mexican Mafia. VSV graffiti often reflects that allegiance by including the number "13" for M, the 13th number of the alphabet. VSV graffiti also includes "Ve Ese Ve" and "4ST." (Fourth Street is in VSV territory.) VSV members wear baggy, dark-colored clothes and belts with a "V" on the buckle. VSV members' tattoos say "Simi Valley, " "Simi Valle, " "S, " "V, " "SV, " or "VSV." VSV members throw their gang sign by forming a V and an S with their hands.
Appellant belonged to VSV and used the moniker "Suspect." The tattoo across his abdomen said VSV. He also had a tattoo on the inside of his left finger that said Simi Valley, and an S tattoo above one knee. Luis Casillas, known as "Sleepy, " belonged to VSV and he had a tattoo showing a very young-looking boy in gang clothing, wearing a hat that said, "rock and roll gangster." VSV member Ian O'Neill, or "Solo, " had the letters S and V tattooed on the back of his head. VSV member Eric Reitdyk had a VSV tattoo on his back, a Simi tattoo on his inner right arm, and a Valle tattoo on his inner left arm. Eric Burch ("Youngster") and Victor Loza ("Thumper") also belonged to VSV. Mario Nitrini ("Bad Boy") was "jumped into" VSV by appellant, Reitdyk, Burch and many other members.
During January 2007, Simi Valley police officers observed an increase in tagging and violence among the VSV, WSL and BLF gangs. The sidewalk in front of the house where appellant lived in January 2007, had graffiti that read "4ST VSV."
December 5, 2003, Murder of Angel Luevano (Count 3)
On December 3, 2003, at about 5:30 p.m., Casillas, who was then in his early 30's, was driving a Chevy Tahoe SUV, in VSV territory, with two fellow VSV members who were in their late teens. Nitrini sat in the front passenger seat, and appellant, in the back seat. They noticed an unfamiliar, well-maintained "low rider" Cadillac, and assumed its driver could be from a rival gang. Casillas followed the Cadillac, flashed his lights, ran a stop sign, and pulled into the oncoming traffic lane, alongside the Cadillac. Nitrini threw a VSW gang sign, said something about VSV and yelled, "Where are you from, " to the Cadillac driver, to ask if he was from a gang. Jose Luevano, the 32-year-old Cadillac driver, was on his way home, and did not belong to a gang. He yelled back, "Fuck you."
Nitrini entered into an agreement to plead guilty to accessory after the fact to murder, with a no state prison commitment from the prosecution. He also received relocation assistance, including $1,550 monthly for one year, $2,000 monthly for six months, and had received $1,400 a month thereafter, as of the time of trial.
Casillas forced Jose to stop the Cadillac by pulling the Tahoe in front of it. Nitrini ran to the Cadillac, and yelled at Jose to get out. Jose stayed inside and asked, "What's your problem?" Nitrini responded by telling Jose he was in their neighborhood. Jose told Nitrini that he was just a little kid, and he should leave Jose alone. Jose explained that he was a married man, with kids, and his family was from San Fernando, and he did not belong to a gang.
Nitrini returned to the Tahoe. He got out again briefly, with Casillas and appellant joining him. They all got back in the Tahoe while Casillas parked it. Appellant got out again and went to the passenger side of the Cadillac (or remained near the Tahoe), while Casillas went to Jose's window. (Nitrini watched from the rear view mirror, while either standing near, or sitting inside the Tahoe.) Casillas asked Jose where he was from. He also told Jose he "could kill him" and "have bullet [holes all] over his vehicle." Jose told Casillas the things he had just told Nitrini (he was married, had kids, etc.).
Jose noticed that appellant was standing with his right hand inside his shirt, with his palm flat. He thought appellant had a weapon. Nitrini testified that appellant owned a small rifle and that he had seen him with the rifle at other times. Nitrini testified that they did not discuss a weapon before the shooting that day, but it "flashed in [Nitrini's] mind" that appellant might have one.
When Casillas and appellant went to the Tahoe, Jose started to enter its license plate number in his cell phone. Before Jose finished, Casillas returned to say something like "we're sorry, " or "we were mistaken, " to Jose. He also said something like, "You can understand where we're coming from; we're protecting our neighborhood." Casillas extended his hand to Jose and they shook hands. Casillas returned to the Tahoe. According to Nitrini, he, Casillas and appellant agreed that Jose did not want any problems, and they considered the matter "finished." They were mellow and resumed cruising around their neighborhood.
As soon as the Tahoe left, Jose called his brother, Angel Luevano, who lived nearby. Jose told Angel that some guys had just tried to jump or carjack him. Angel said he would be right there. Jose, who also lived nearby, drove home just before Angel arrived. Jose thought Angel might know someone who would know the guys in the Tahoe and tell them to stop what they had been doing. Angel was a mechanic who worked on many low rider cars. Gang members liked low rider cars.
Angel, who was 29 in 2003, weighed about 360 pounds and was six feet, two inches tall. He was wearing a spiked ring on December 3. Angel once commented that if he were to punch someone while wearing that ring, it would be "lights out" for them. He and Jose did not discuss the ring on December 3.
Jose told Angel that the guys who stopped him were in a Tahoe SUV. Angel said he thought he had just seen it, and told Jose to get in the car. Jose told Angel that the guys had screamed "VSV" at him. Angel said he knew some of the VSV guys. After they had driven around, Jose suggested that they should "just go home." Angel said something like, "We can't just let this lie, and we need to find out why these guys stopped you so it doesn't happen again." Angel was not a fighter, but he was always trying to prove to Jose that he "had balls." Jose then mentioned that he had been to a house on Ashland, in the VSV neighborhood, to get a tattoo. They quit looking for the Tahoe and headed toward that house.
Somewhere between 15 and 60 minutes later, Jose and Angel reached 911 Ashland, the house where Jose had visited the tattoo artist. While Angel stayed in the car, while Jose knocked at the door. Twenty-year-old Raul Ayala opened the door. He was high from a three-day methamphetamine binge. Ayala was not Jose's tattoo artist and he did not recognize Jose. Ayala recalled that Jose seemed angry and hostile and asked if he was from "this neighborhood" or "VSV neighborhood." Jose seemed ready to fight but calmed down after Ayala said he was not from the VSV neighborhood. Jose explained that some men in a Tahoe had just tried to jump him, and claimed "VSV." Jose was looking for the Tahoe. Ayala sensed that if he found it, there would be trouble. At trial, Jose said he was excited rather than angry.
As Jose was getting ready to leave Ayala's house, the Tahoe turned the corner and passed the house. Ayala heard Jose and Angel cursing and yelling, "That's them, " at each other. Jose denied they yelled or cursed; he said they just said something like, "That's the car." Angel told Jose to wait where he was, and walked into the street in front of the Tahoe.
The Tahoe drove slowly by Ayala's house, turned slowly, headed back, and stopped in front of the house, in the middle of the street. Ayala planned to go inside because he had the feeling that something would happen.
Nitrini estimated that he, Casillas, and appellant stopped on Ashland after they had been cruising around for somewhere between 15 and 45 minutes. They had noticed some people in front of 911 Ashland and thought there was a party there. They were surprised or shocked to see Jose, "the same guy [they] just saw 15 minutes" before. They considered the earlier encounter to be finished, and did not discuss getting into a fight.
Nitrini said that Angel was in the street, with his hand up, motioning to the Tahoe to stop. When Casillas stopped the Tahoe, Jose approached the right front passenger window and asked, "Remember me?" Jose thought he might end up fighting one of the Tahoe's occupants. Angel went to the driver's window and immediately started to punch Casillas "pretty hard" in the face, "Boom, boom, boom, " with both fists, three to five times. Casillas put his hands in front of his face. The Tahoe moved or rocked from side to side. While Angel was punching him, Casillas did not yell out in pain, or ask for help. Nitrini did not see anything that led him to believe that Casillas "was being severely injured." During the incident, Nitrini did not notice that Angel was wearing a ring. Three to five seconds may have elapsed between Angel's first and last punch.
Jose heard Nitrini and Casillas say, "Get the gun." Nitrini denied they made any such statement. He did recall that there might have been a "short little pause" by Angel just before the shot was fired, when Casillas "could have been far away enough that [Angel] couldn't reach him ducking, ... so... that there was no way [that Angel could] continue punching him."
Appellant leaned forward, between Nitrini and Casillas, pulled out a "small rifle, " "pointed it to his left with both hands on the gun, " and shot Angel in the neck." As or before the Tahoe left, Jose heard Casillas and Nitrini say, "puro VSV." Nitrini denied that they said that. Jose estimated that 10 seconds elapsed from the time that the Tahoe stopped until he heard the gunshots.
Angel walked to the driveway and collapsed. He died from a single gunshot wound in his neck and through his chest.
Casillas, Nitrini and appellant drove around after the shooting. They stopped in Westlake Village and parked behind an Albertson's market. Casillas hid appellant's rifle in a park, near a wall that separated the park from the market. A few minutes later they drove to the home of their friend, Greg Garcia, another VSV member. Nitrini believed that they told him about the shooting but did not gloat or brag about it. After leaving Garcia's house, Casillas, Nitrini and appellant went to a Jack-in-the-Box. Appellant left with someone else later.
Nitrini did not remember having seen "any marks on the left side of [Casillas's] face or neck or shoulder or anywhere on his body left as evidence of him being hit" by Angel. Nitrini did notice that Casillas had an abrasion where "the bullet went through his finger." On December 25, 2003, Simi Valley Police Sergeant Adam Darough arrested Casillas in El Paso, Texas. Darough did not see any visible injuries on Casillas. The interior of his Tahoe was meticulously clean. Its headliner and carpet had "teeth marks, " like those that a steam cleaner can leave behind.
The bullet recovered from Angel's body was a ".22 Long Range [sic] bullet." The police never recovered the rifle.
January 26, 2007, Murder of Luis Torres and Assault with a Firearm on Omar Aguilar (Counts1 and 2)
On Friday, January 26, 2007, around 8:00 p.m., Grace Andrade drove her Nissan Ultima and picked up her friends Alexandria Olivas, Mary Mata, and Mata's cousin, Nadia. The young women, who ranged from 17 to 20 years of age, planned to meet other friends at Francisco (Paco) Lopez's house at 1659 Third Street in Simi Valley and go to Santa Monica or City Walk in Universal City. Lopez was about 23 years old. Just before reaching Olivas's house, Andrade picked up Olivas's and Mata's friend, 18-year old Luis Torres, at a liquor store. Torres belonged to the Westside Locos gang, a rival of the VSV gang. Someone with Andrade bought a wine bottle and a six-pack of an alcoholic energy drink. Mata and Andrade starting drinking before they reached Lopez's house, at about 9:00 p.m.
Andrade parked her car in an alley next to the 1659 Third Street residence where Lopez lived with his uncle's family. The alley connects Third and Fourth Streets, and lies parallel to and between Ventura and Ashland Avenues. The south side of the Lopez property abuts the alley at its intersection with Third Street.
Andrade waited with her friends in the alley for her boyfriend, Omar Aguilar, to arrive. Aguilar was about 23 years old. They listened to music, danced and drank. While they waited, a man in his early 20's walked by the alley, on the opposite side of Third Street from Lopez's house. He wore baggy clothes and talked on a cell phone. He said "ese, " or "homeboy" in Spanish.
At approximately 10:45 p.m., Aguilar arrived and parked his vehicle diagonally behind Andrade's car. (Some witnesses recalled that Aguilar had a truck; Aguilar and other witnesses said that he was driving a car.) Mike Lira also arrived at Lopez's house, either with or shortly before Aguilar. Aguilar went inside to speak with Lopez. Mata felt "buzzed" from drinking and she thought that Torres was somewhat intoxicated from using marijuana and crystal methamphetamine. She noticed he was acting paranoid. Aguilar came back outside. Lopez followed shortly.
The group decided to go to City Walk. A man walking on the street was talking on his cell phone. The young women and Torres walked toward Andrade's car. Olivas and Nadia entered the back seat, from the driver's side; Andrade opened the driver's door and Mata and Torres were outside, on the right side of the car.
While Andrade and her friends were gathering in the alley, appellant was at 811 Ventura Avenue, at Fourth Street. He had a bedroom in the house that was owned by Sarah Andrew, his cousin. Burch was living there temporarily, and he slept on the couch. Andrew's yard was at the corner of Ventura Avenue, a block from the Lopez property on the opposite side and end of the alley that extended between Third and Fourth Streets (Lopez-Andrew alley).
On the same evening, by approximately 9:00 p.m., appellant, Burch, Andrew, and Isabelle, a seven-year-old girl who Andrew was watching, were in her house. Sometime later that evening, appellant's long-time family friend, Ernest Diaz, stopped by. Diaz saw appellant, Burch, Fernando Alvarenga, Herbert Alvarenga and possibly Hector Martinez at the house. Andrew did not see anyone there except Isabelle, appellant and Burch, but she was watching and playing with Isabelle that evening.
Diaz heard someone run into Andrew's house and say either, "there's a west sider, " or "some guys" in the alley. Appellant and Burch left Andrew's house and walked toward Ashland Avenue.
When Aguilar, Lopez and Lira were about to enter Aguilar's car, appellant and another man walked from the other end of the Lopez-Andrew alley, toward Andrade's and Aguilar's cars. Both men wore dark, hooded sweaters or sweatshirts; one or both of them had the hood up. They stopped near the trunk of Andrade's car. One or both of the men asked, "Where are you from?" Nobody responded, and he or they repeated the question. Aguilar and Mike said they were not from anywhere. Torres responded by saying "West Side Locos" or Locos Trece. Appellant, or his companion, said, "What fool?" Torres repeated that he was from West Side Locos. Appellant pulled a gun from the right side of his sweater, held it "sideways" (with his palm facing down), pointed it at Torres, and started shooting. Torres ducked down, fell to the ground, and started shaking. At some point, he said, "Oh, no." Lopez ducked down, also, to avoid bullets.
Appellant pointed the gun at Aguilar, who screamed, "Don't shoot, don't shoot. I'm not from [anywhere]." Appellant lowered the gun. Torres got up and started running with Lopez. Appellant raised his gun and fired shots in their direction. Aguilar thought he heard a total of five shots. Appellant put down the gun and walked away with the other man. Lopez thought that appellant had tried to pull the gun's trigger but could not because it was jammed. A large group of people started coming from the other end of the alley toward Aguilar. Lira and Aguilar got in his car and left. Someone threw an object at his car as he drove away. Lopez left the scene by jumping a fence. He hid in someone's yard and called 911.
Shortly after appellant and Burch left Andrew's house, Diaz heard the sounds of girls screaming and firecrackers. He ran outside. Appellant and Burch quickly returned to the house, breathing heavily. They took showers and changed their clothing. Burch told everyone in the house to be quiet and told them not to answer the door. On March 31, 2007, Diaz told Detective Jay Carrot that Andrew was turning off the lights in the house, telling everyone to shut up and watching police activity outside through her window.
Diaz did not want to testify. His parents went to school with appellant's family. He testified pursuant to an agreement with the prosecution, whereby he could not be prosecuted based on his testimony.
Police and emergency responders found Torres's body on the corner of Fourth Street and Ashland Avenue. Ashland is half a block north of the Lopez-Andrew alley. Torres died as the result of a "gunshot wound of the chest."
While riding away from the shooting scene with her friends, Mata said that she knew that appellant was the shooter. She knew that West Side Locos and VSV were rival gangs. A few days later, Loza called Mata and said, "I know you were there." Knowing that Loza was a VSV member, Mata thought that he meant that VSV members knew she was at the shooting scene and she should be careful. Because that scared her, she did not identify appellant as the shooter when the police interviewed her within days of the shooting. When police officers met with her in March 2007, they convinced her to tell the truth. She then identified appellant from a photographic lineup as the person who shot Torres.
Lopez also recognized appellant as the shooter. Appellant fought with Lopez years earlier at the home of a mutual acquaintance. Lopez had seen appellant in the interim, also. Like Mata, Lopez was afraid to tell the police that appellant was the shooter. The shooting occurred next to his uncle's home, where he lived with his family, and Lopez did not want to jeopardize their safety. Lopez later told a friend that appellant was the shooter without realizing that their conversation was taped. After Detectives Carrott and Tallent confronted Lopez with the taped conversation, he selected appellant from a photographic lineup as the person who shot Torres.
The bullet recovered from Torres's body was a.32 caliber cast lead projectile. The police did not recover the firearm that fired the bullet.
Defense Evidence
Appellant's cousin, Sarah Andrew, testified that on the night of the shooting, appellant and Burch were in appellant's bedroom in her house. She admitted that she previously told police she did not know Burch. She did that at his request. He was on parole and he was not supposed to be in Ventura County.
DISCUSSION
Severance Motion
Appellant contends that the trial court committed prejudicial error by refusing to sever the 2007 Torres murder (count 1) from the 2003 Luevano murder (count 3). We disagree.
A ruling on a motion to sever is reviewed under a deferential abuse of discretion standard. (See People v. Soper (2009) 45 Cal.4th 759, 774.) The ruling will not be reversed unless it exceeded the bounds of reason and the defendant can establish a clear showing of prejudice. (Ibid.) "Whether a trial court abused its discretion in denying a motion to sever necessarily depends upon the particular circumstances of each case. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 27.) "Where joinder requirements [citation] are met, the difficulty of showing prejudice from denial of severance is so great that the courts usually reject claims of abuse of discretion. [Citations.]" (5 Witkin, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 395, p. 562.) The factors to be considered are... "'(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.' [Citations.]" (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220-1221.)
"The trial court's denial of a motion to sever must be evaluated in light of the facts and circumstances apparent to the court at the time of its ruling. [Citations.]" (People v. Earle (2009) 172 Cal.App.4th 372, 387.) Appellant acknowledges that the two murders that were consolidated for trial were crimes of the same class and therefore joinable under section 954, the joinder statute. He argues that the court should have exercised its discretion to deny consolidation "'in the interests of justice and for good cause shown' because of the prejudice which would result from joint trial of the two offenses."
Section 954 provides in pertinent part: "An accusatory pleading may charge two or more different offenses... of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in accusatory pleading be tried separately...."
On appeal, even where a trial court has erred by denying a severance motion, a defendant may not obtain reversal of a conviction unless he or she can show it is reasonably probable that the joinder affected the jury's verdicts. (People v. Grant (2003) 113 Cal.App.4th 579, 587-588.) "'... [E]ven if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts... for trial resulted in gross unfairness depriving the defendant of due process of law. [Citations.]' [Citations.]" (People v. Soper, supra, 45 Cal.4th at p. 783.)
Appellant has not established that it is reasonably probable the joinder of the Luevano and Torres murders affected the jury's verdicts or resulted in gross unfairness depriving him of due process of law. He argues that the evidence of each murder would not be cross-admissible in separate trials. However, the prosecution alleged that each murder was committed to benefit appellant's gang and there was cross-admissible evidence relevant to those accusations. Moreover, even where there is a complete lack of cross-admissibility, that factor alone does not establish prejudice. (People v. Sandoval (1992) 4 Cal.4th 155, 173; see § 954.1 ["evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."])
Appellant also argues that the joinder of the murders for trial caused prejudice because it "unduly affected [his] choice as to whether to testify." To establish such prejudice from joinder, a defendant must show that he has "'"... important testimony to give concerning one count and a strong need to refrain from testifying in the other[]"'... to enable [a court] to weigh the considerations of economy and expedient judicial administration against the defendant's interest in having a free choice with respect to testifying. [Citation.]" (People v. Sandoval, supra, 4 Cal.4th at p. 174.) Here, appellant's showing regarding the testimony he would give in the Luevano murder lacked adequate substance to establish its importance. As paraphrased in the reply brief, his "counsel advised the court that appellant would testify in the Luevano case if the trials were severed" and "further advised the court that appellant had important testimony to give regarding his state of mind at the time of the attack upon the car in order to establish his claim of self-defense and defense of others, and that he would invoke his right not to testify in the Torres case in which identification was the sole issue." Counsel did not describe any specific information about the substance of the "important testimony."
Nitrini, who saw Angel punching Casillas, testified that he did not see anything that led him to believe that Casillas was being severely injured, and Casillas did not yell out in pain or ask for help. Nitrini remained with Casillas for several hours after the shooting but he did not notice any marks on Casillas's face that one would expect if Angel had used his fists in a manner likely to inflict severe bodily injury. In addition, Nitrini described a short pause in Angel's punching Casillas that may have occurred when Casillas "could have been far away enough that [Angel] couldn't reach him ducking, and so forth, ... that there was no way to continue punching him." Appellant, Nitrini and Casillas were inside the Tahoe, which presumably had lockable doors, and appellant was armed with a gun. Inexplicably, Casillas did not drive away until after he and Nitrini yelled at appellant to get the gun, and appellant shot Angel. He and Nitrini yelled, "Puro VSV, " right before or as he drove away. These factors, coupled with the fact that Angel was outside the Tahoe with no weapon (with the possible exception of a spiked ring that left no mark on Casillas's face) make it difficult to conceive of any testimony that appellant could have offered regarding his state of mind that would support a plausible defense.
Further, the trial court offered to instruct the jury not to "consider, in any way, and not to discuss evidence as to the Luevano homicide as tending to prove the defendant's guilt of any charge in the Torres homicide and vice versa." Appellant rejected the opportunity to testify with that instruction. He argues that "[i]t is simply unrealistic to expect the jury could or would be able to compartmentalize the evidence so that the consideration of one case was not affected by the joinder." That argument might be persuasive if there had been far weaker evidence against appellant as to either murder.
Appellant also argues that trying the Luevano and Torres murders together was prejudicial because the strength of the evidence in each case dovetailed precisely to the weaknesses in the evidence in the other, and the inflammatory effect of the gang evidence presented a substantial risk of the jury being prejudiced against him and using the evidence cumulatively in reaching its verdicts on the separate crimes. This argument assumes that appellant's testimony would have made a difference in the Angel murder verdict. We reject that assumption, for reasons explained above. The argument also rests upon the false premise that evidence of identity in the Torres case was "not strong."
Mata and Lopez witnessed the Torres murder and recognized appellant as someone they had met under different circumstances. Each of them had plausible reasons for their initial reticence to admit their knowledge of the shooter's identity, as previously stated.
Further, strong circumstantial evidence from Diaz corroborates the two eyewitness identifications of appellant as the shooter. Just before the shooting, right after someone entered Andrews's house to say that there were guys or west siders in the alley, Diaz saw appellant and Burch leave Andrew's house. Her house was within a block of the murder scene. Shortly after Diaz heard some commotion nearby, including "firecrackers, " Burch and appellant returned to Andrew's house. Burch told everyone in the house to be quiet and told them not to answer the door. Appellant and Burch both showered and changed their clothing. Appellant has not established that joining the Torres murder count with the Luevano murder count prejudiced him.
Substantial Evidence Supports the First Degree Murder of Angel Luevano (Count 3)
Appellant claims that the count 3 first degree murder of Angel is not supported by substantial evidence. We disagree.
In considering a substantial evidence claim, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251; see also People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [standard applies in reviewing the evidence underlying gang enhancements].) "We presume '"in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."...' [Citation.]" (People v. Prince, supra, at p. 1251.) In a first degree murder case, "[o]ur task is not to determine, for example, whether the weight of the evidence might favor second degree murder over first degree murder.... Our task is to determine whether there was sufficient evidence by which a rational jury could decide [that Angel was] the object [] of first degree murder." (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111.)
The statutory definition of all murder is "the unlawful killing of a human being, .. with malice aforethought." (§ 187, subd. (a).) First degree murder is any "kind of willful, deliberate, and premeditated killing...." (§ 189.) "If a rational jury could have come to the conclusion that [Angel's murder was] willful, deliberate and premeditated, then we must affirm even if, had we been members of the jury, we would not have so concluded." (People v. Nazeri, supra, 187 Cal.App.4th at p. 1111.)
In arguing the absence of evidence of premeditation and deliberation, appellant emphasizes the short duration of the incident. He stresses Jose's testimony that 10 seconds had elapsed from the time that the Tahoe stopped on Ashland to the time that he heard the gunshot, and cites Nitrini's estimation that three seconds elapsed between the first and last punch. A cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. (People v. Solomon (2010) 49 Cal.4th 792, 812-813.)
"First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment... and is evidenced by planning activity, a motive to kill, or an exacting manner of death. [Citation.]" (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) The record contains evidence that appellant had motive to kill Angel and used an exacting manner of death to kill him.
Appellant's claim that there is no evidence of his motive to kill Angel overlooks the evidence that supports a contrary conclusion. With reference to a hypothetical, based on the facts of Angel's murder, the gang expert explained that where a non-gang member enters gang territory driving a fancy, unfamiliar lowered car while gang members are policing their territory, it presents a threat because it might be a rival gang member who is disrespecting their territory by entering. The gang members respond to the perceived threat by challenging the non-gang member to fight and threatening to kill him and cover his car with bullet holes. The gang members say the situation is over for them because they apologized to the intruder after realizing he was not from a rival gang, but they continue driving around their territory with a rifle. When the non-gang member reenters the gang territory, and "brings up" his numbers with a very large companion, who approaches the gang vehicle and punches the driver, the situation is exacerbated. Gang members typically would perceive that the intruder is displaying blatant disregard for the gang by reentering its territory with a large, aggressive companion.
There is also evidence that appellant used an exacting manner to kill Angel. The record supports the inferences that there was no threat to the life of anyone in the Tahoe, that Casillas was not at risk of severe injury, let alone death, and that nothing prevented his driving away. In that context, despite a pause when Casillas could duck out of the range of Angel's punches, he and Nitrini yelled, "Get the gun." Casillas delayed his departure as appellant leaned forward, with his rifle, aimed it at Angel's neck, and fired at him from close range. Substantial evidence supports the Angel Luevano first degree murder. (People v. Nazeri, supra, 187 Cal.App.4th at p. 1111.)
Substantial Evidence Supports the Active Gang Member Special Circumstance and the Gang Enhancement
We reject appellant's contention that he was "denied due process because there was insufficient evidence, absent the gang expert's opinion testimony, to support" either the active gang member special circumstance (§ 190.2, subd. (a)(22)), or the gang enhancement (§ 186.22, subd. (b)(1)). More specifically, he claims that absent expert testimony, there is not substantial evidence that he intentionally killed Luevano with the specific intent to further the activities of the gang, as required by sections 186.22, subdivision (b)(1) and 190.2, subdivision (a)(22).
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.])" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
After hearing a hypothetical based upon the Luevano shooting evidence, Tallent explained that the three gang members driving around together, who say they are not seeking trouble, ignores the fact that by "hanging out together, " they are "getting their numbers up, " "going out and... driving around obviously working, putting in their work" to police their neighborhood. Their conduct in stopping the unfamiliar car and challenging its driver showed that they "obviously perceived some type of threats." She explained that their perception and reaction were consistent with gang conduct.
Appellant further claims that the expert testimony said nothing to establish that the crime was committed with the specific intent to further the activities of the gang because it was based on circular reasoning, "gang members act in a certain way, for certain purposes; appellant is a gang member; therefore he acted in a certain way for a certain purpose." In so arguing, appellant overlooks or minimizes the evidence underlying the hypothetical that supports the expert's opinion. For example, he writes, "Although [Jose] Luevano testified that after the shooting someone said 'VSV, ' two of the prosecution's other witnesses, Ayala and Nitrini testified Casillas took off fast and no one said anything." However, before reaching its verdict, the jury asked to hear, and did hear, a read back of Jose Luevano's testimony. He described how appellant shot Angel in the neck just before two other gang members yelled, "puro VSV, " as their Tahoe sped away. That testimony, and other evidence, support the inference that appellant killed Angel to further VSV gang activities.
Appellant further asserts that there is not sufficient evidence to support the active gang member special circumstance and the gang findings because "the record does not establish what criminal activity of the gang was intended to be furthered by the shooting "at the time of the 2003 shooting, " when the "main criminal activity of 'VSV' was vandalism[.]" Our state Supreme Court recently rejected this argument in the context of a gang rape case, although rape had not previously been among the gang's primary activities. (People v. Albillar, supra, 51 Cal.4th at pp. 63-64.) "[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." (Id. at p. 68.)
Here, there was ample evidence that appellant intended to kill Angel, that Casillas stayed at the scene instead of driving away until appellant aimed a rifle at Angel and hit his neck, although Casillas apparently managed to dodge Angel's fists by leaning away, and that before or as he drove away, he and Nitrini yelled "puro VSV." Accordingly, there was substantial evidence that appellant "acted with the specific intent to promote, further, or assist gang members in that criminal conduct." (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.