P. v. Hernandez

Filed 4/17/06 P. v. Hernandez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Following a gang-related shooting, appellant Miguel Hernandez was charged with two counts of murder and one count of attempted murder. He was tried with a co-defendant, Onel Montesinos, who was convicted. The jury deadlocked as to appellant, and the court declared a mistrial.

After a second jury trial, appellant was convicted of the second-degree murders of Arturo Ortiz and Jesus Silva. (Pen. Code, §§ 187, subd. (a); 189; counts 1 & 2.)^[1] He was acquitted of the attempted murder of Esteban Ortiz. (§§ 187, subd. (a); 664, count 3.) As to counts 1 and 2, the jury found true the allegations that a principal used a firearm and that the crimes were committed to benefit a criminal street gang. (§§ 12022.53, subds. (b)-(e)(1); 186.22, subd. (b).)

Appellant was sentenced to concurrent sentences of 15 years to life on counts 1 and 2, plus 25 years to life for the firearm enhancements, for a total term of 40 years to life in state prison. Appellant argues the trial court committed reversible error by failing to instruct on self-defense and voluntary manslaughter. We affirm.

FACTS

Appellant's convictions arose from a gang-related killing involving three co-defendants: appellant, Arael Montesinos and Onel Montesinos, all members of the Locos Trece street gang. During the shooting, Arturo Ortiz and Jesus Silva were killed and Esteban Ortiz was wounded. This appeal concerns only appellant Miguel Hernandez.^[2]

Esteban is the brother of victim Arturo Ortiz. Esteban was part of a "tagging crew" and, on the night his brother was killed, was tagging walls with spray paint in Locos Trece gang territory. He heard a whistle, and a man approached and asked for the spray can. Esteban refused and told the man that he was not a gang member. The man said, "Fuck you," and struck him on the chin. Esteban tried to walk away, but six or seven other men appeared.

At the same time, Arturo Ortiz and several of his friends were driving through the neighborhood in two separate vehicles. While stopped at a red light, they saw that Esteban was in a fight. Leaving their cars, victims Arturo Ortiz and Jesus Silva joined in the fight, accompanied by Gabriel Hernandez and Jose Jarquin.^[3] Three gunshots were fired. Arturo was fatally shot in the stomach. He fell to the ground and someone kicked him in the face and said, "Don't fuck with us." Jesus Silva was fatally shot in the back. Esteban sustained a minor bullet injury to his neck. After the shots were fired, the attackers fled.

Esteban later told a police officer that a man hit him and said, "Locos Trece" twice during the fight. He identified Onel from a photographic line-up as looking like the person who hit him. He did not identify appellant.

Gabriel Hernandez saw four people attacking Esteban and ran to his aid. A man fired into the crowd and shot Arturo in the stomach. He fell to the ground and someone else kicked him in the face. After the shooting, Gabriel told detectives that the man who kicked Arturo said, "[d]on't fuck with us" five or six times. Gabriel later identified appellant from a photograph as looking like someone who was involved in the shooting.

Jose Jarquin saw a man shooting into the crowd. He heard five to seven shots fired and saw Arturo lying on the ground. Someone kicked Arturo in the face and Jose began fighting with that person. Another person struck Jose on the back of his head, causing him to release his grip. Jose later identified appellant from a photo display card as looking like someone who was present at the shooting.

Police Interview with Ezequiel Hernandez

After the shooting, appellant's brother, Ezequiel Hernandez, was interviewed by the police. He told detectives that the Montesinos brothers were members of Locos Trece. Ezequiel said Onel and appellant told him they had killed someone and that Onel was the shooter. Ezequiel specified that "they" referred to appellant and Onel. He recounted that, after they took a spray can away from a tagger, two cars arrived, seven people got out and began fighting.

A man approached Onel as if he was unafraid, and Onel pulled the trigger. Another man approached, and Onel pulled the trigger again. Someone began beating Onel's brother (Arael Montesinos), and Onel shot the person in the back. Appellant said he and Onel sold the murder weapon in the projects. At trial, Ezequiel testified that he did not recall having made these statements.

Police Interview with Franceli Gomez

Franceli Gomez was appellant's former girlfriend. She testified that appellant and the Montesinos brothers were members of the Locos Trece gang and lived together at the home of appellant's parents. She had lived with appellant for a few months and had been a member of Locos Trece. Franceli had seen two firearms in the house and ammunition. There was a lot of graffiti in the room that appellant shared with the Montesinos brothers. All three talked about tagging and had tagged in the surrounding Locos Trece neighborhood. Members of Locos Trece held meetings at the house and discussed selling drugs and beating up or shooting people who tagged in their neighborhood. After several months, Franceli moved out of the house but continued to date appellant.

Several days after the shooting, Franceli called appellant's house and Onel answered the phone. He told her that "they" had done a drive-by shooting because someone was tagging in the neighborhood. Onel told Franceli the tagger refused to hand over his spray can. A car pulled up and several men got out and began fighting. Someone took out a gun and started shooting. Onel said that he had kicked a man in the face as he lay on the ground. Franceli later learned the identity of the victims and she contacted the police. They have subsequently assisted her in obtaining a visa.

Search of House

Based on the information Franceli provided, the police obtained a search warrant for the house. The officers recovered a semi-automatic AK-47 and a .38-caliber revolver hidden inside a wall and found ammunition for both weapons in the attic. The officers found a notebook, photographs and letters containing gang-related writing.

Testimony of Gang Expert

A gang expert testified that Locos Trece has been around for approximately 50 years and has about 150 members. The gang commits crimes such as vehicle theft, narcotics sales, robberies, assaults and drive-by shootings. A tagging crew is a group of young people who spray paint their monikers in gang territory. Crossing out the graffiti of another gang is an act of disrespect that can lead to murder. It is common for members of a tagging crew to "graduate" into a criminal street gang.

The expert testified that appellant is a member of Locos Trece. It was her opinion that the instant assault and shooting were done for the benefit of Locos Trece. She believed the gang assaulted the tagger in order to gain respect. They would have lost status had they left the area without confronting the tagger. It is common for a fistfight to escalate into a fatal shooting.

DISCUSSION

Self- Defense Instructions

Appellant's second-degree murder convictions were based on the theory that he had assisted in an assault on a tagger in gang territory, the natural and probable consequences of which was a shooting. The prosecutor argued that appellant's participation in the assault on Esteban made him criminally liable for the deaths of Ortiz and Silva. The court refused to instruct on self-defense, concluding there was no evidence to support such an instruction. It emphasized that appellant was charged with murder, and the facts of the case did not suggest that he had acted in self-defense or that use of a weapon was justified.

Appellant claims he was entitled to self-defense instructions because there was little evidence of what his "role had been, other than that he had not been the shooter." Appellant contends that there was evidence that he was standing behind his friends at the beginning of the fight, and this "strongly suggests that [he] was not one of the initial aggressors . . . ." Therefore, appellant reasons, a jury could have concluded that he was "merely present" at the scene, and was then attacked by Esteban's friends.

A trial court has the duty to instruct on all material issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 160.) "[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The court must only give self-defense instructions when substantial evidence supports them. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) To justify giving self-defense instructions, the evidence must demonstrate 1) a subjectively honest belief in the need for self-defense, and 2) an objective need for self-defense based on a reasonable person standard. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The subjective belief must be a fear of imminent danger to life or great bodily harm. (Ibid.)

The evidence established that the fight began when Locos Trece members assaulted Esteban with their fists. Esteban's friends joined in the fistfight and members of Locos Trece responded with deadly force. Appellant presented no evidence that he honestly and reasonably believed he was in danger of imminent bodily harm and needed to defend himself. The evidence was insufficient to warrant self-defense instructions.

Appellant cites People v. Quach (2004) 116 Cal.App.4th 294, for the principle that a slaying in self-defense may be justified when a counter assault involves the use of deadly force. (Id. at pp. 301-302.) Quach concerned a shootout between rival gangs, where there was conflicting evidence as to which group drew a gun or fired first. The court held that the defendant was entitled to an instruction that a killing may be justified when a simple assault is met by a deadly counter assault that is "so sudden and perilous" that there is no opportunity to withdraw. (Id. at p. 303.) The rule enunciated in Quach is inapplicable here because Esteban's friends did not use deadly force in their counter assault against Locos Trece. The doctrine of imperfect self-defense is likewise unavailable to appellant because Locos Trece created the circumstances under which the attack by Esteban's friends was justified. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn.1.)

Aiding and Abetting

Appellant claims that he did not participate in the assault on Esteban and did not join the fight until he was attacked by Esteban's friends; thus, he did not aid or abet the assault. Further, appellant claims that his belief that he was entitled to defend himself precluded the mental state necessary to be an aider and abettor.

The jury was instructed on the law of aiding and abetting and on the natural and probable consequences doctrine. (CALJIC No. 3.01 and 3.02.) A person who intentionally aids and abets the commission of a crime is a "principal" in the crime and shares the guilt of the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) An aider or abettor is liable for the target crime, as well as any other offense that is a natural and probable consequence of that crime. (Id. at p. 1117; People v. Prettyman (1996) 14 Cal.4th 248, 260.) It is reasonably foreseeable that a gang confrontation can escalate into a shooting. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 9-10 [shooting between rival gang members natural and probable consequence of gang fight]; see also People v. Montes (1999) 74 Cal.App.4th 1050, 1055.) "When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the court should turn a blind eye to them." (Montes, at p. 1056.)

The evidence established that appellant and the Montesinos brothers were active members of Locos Trece. They lived together and held gang meetings at their house. Locos Trece members saw Esteban tagging in their territory and assaulted him. Appellant told his brother, Ezequiel, that they (appellant and Onel) saw someone tagging in their neighborhood and took a spray can away from him. They began to fight and killed someone. The evidence was overwhelming that appellant aided and abetted the assault on Esteban.

Voluntary Manslaughter

Appellant claims the trial court erred by refusing to instruct the jury on the lesser-included offense of voluntary manslaughter. The trial court refused to give this instruction, finding there was no evidentiary basis.

In its closing argument, the prosecution reiterated the natural and probable consequences doctrine and stated that, if appellant assisted in the assault on Esteban, he could be found guilty of the murders of Ortiz and Silva. Appellant acknowledges that manslaughter instructions are irrelevant to a prosecution under this theory. However, he argues that, had he also been tried on the theory that he directly aided and abetted the shooting, then manslaughter instructions would have been appropriate.

In his opening brief appellant stated that "[w]hile the prosecutor did not emphasize this theory [aiding and abetting the shooting], he also did not entirely foreclose it." Appellant gave record citations to the prosecutor's closing argument to support his position, but the referenced pages make no mention of this theory. Appellant has waived his argument by failing to point to an error of law. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) It unnecessary to address appellant's contention that he was entitled to a voluntary manslaughter instruction based on a sudden quarrel or heat of passion theory. (§ 192, subd. (a).)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Larry P. Fidler, Judge

Superior Court County of Los Angeles

______________________________

George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code.

^[2] We have heard and decided the appeals in People v. Arael Montesinos (Nov. 14, 2005, B176983 [nonpub. opn.]) and People v. Onel Montesinos (Jan. 18, 2006, B178657 [nonpub. opn.]).

^[3] Esteban Ortiz, Gabriel Hernandez and Jose Jarquin were members of a tagging crew known as B.O.S. "Based On Skills."