P. v. Limon

Filed 8/22/07 P. v. Limon CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Landra E. Rosenthal, 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, Lance E. Winters, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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Arno Limon appeals from the judgment entered following a jury trial in which he was convicted of first degree murder committed for the benefit of a criminal street gang in which a principal intentionally discharged a handgun, causing death, and attempted premeditated murder committed for the benefit of a criminal street gang in which a principal intentionally discharged a handgun, causing great bodily injury. In a bifurcated court trial, defendant was found to have suffered prior felony convictions, including one under the Three Strikes law. He was sentenced to determinate and indeterminate terms totaling 117 years to life in state prison. Defendant contends that the evidence was insufficient to support the verdicts and that the trial court prejudicially erred in instructing the jury under the natural and probable consequences doctrine. We affirm.

BACKGROUND

Defendant is a member of the Pomona 12th Street gang. On the evening of August 30, 2005, Raksmey Pang and Soroeun Tith went to a Stater Brothers store in Pomona 12th Street gang territory.

Pang testified that before he and Tith entered Stater Brothers, they noticed defendant, who was talking on a pay phone outside the store. Defendants shirt was off, revealing that he had gang tattoos. Pang and Tith soon left Stater Brothers, again noticing defendant, who was still on the phone. Pang and Tith next proceeded to a Sav-On store across the street. As they were about the enter the Sav-On, defendant approached and asked the two where they were from. Tith responded that they were OAG (Original Asian gang). Pang said they did not want any trouble. Defendant identified himself by his gang moniker, Slim, and said, This is 12th Street; you know what time it is?

Pang and Tith then went into the Sav-On. When Pang and Tith emerged a few minutes later, Pang saw defendant, who was wearing a shirt, approach them from the left side. He also saw flames come from the gun that was being fired by a bicyclist on Pangs right side. Pang ran, but was shot in the elbow, causing nerve damage. Pang did not see Tith, whom other evidence established sustained multiple gunshot wounds, including a fatal wound to the back of his head.

A Stater Brothers surveillance camera captured images of the entrance to the store and the pay phone. As described by the investigating officer, images from the camera showed defendant appearing to talk on the phone starting at 7:08 p.m., a second individual (who was thought by the police to be defendants fellow Pomona 12th Street gang member Derrick Ortiz) approaching defendant at 7:11 p.m., defendant with his shirt off revealing his Pomona 12th Street gang tattoos at 7:21 p.m., the second individual riding up on a bicycle and approaching defendant starting at 7:24 p.m., Pang and Tith entering the store at 7:39 and leaving at 7:41 p.m., and defendant leaving the area of the phone at 7:42 p.m.

A husband and wife who were driving by the Sav-On on their way home saw Pang and Tith in the stores parking lot. At home two or three minutes later and looking from the third-floor balcony of their apartment building, which is adjacent to the Sav-On parking lot, they saw Pang and Tith go toward the Sav-On and defendant go in the other direction. A minute later they saw defendant return and speak with another male, who was on a bicycle. The bicyclist then rode around to the back of the Sav-On. When Pang and Tith came out of the store minutes later, defendant first approached the two, then the bicyclist approached them from a different direction and fired a gun at Pang and Tith three to five times. According to the husband, it was like a set-up, like [defendant] was setting them up to stay there while the guy on the bike was coming up. The husband and wife then saw defendant and the bicyclist flee in the same direction. The wife was able to identify defendant, but neither she nor her husband were able to identify the bicyclist.

Pomona Police Detective Greg Freeman testified as a gang expert. The shooting occurred in Pomona 12th Street gang territory and OAG is one of Pomona 12th Streets rivals. Defendant, who has large Pomona 12th Street gang tattoos on his chest and back, is a Pomona 12th Street member. As explained by Freeman, Respect is everything in a gang, and [g]ang members will get respect by disrespecting other gangs, by putting in work, to putting down other gangs. There are different levels of involvement in a gang. First are associates. Next are soldiers, who actually commit acts of violence when called upon. The top final stage is a shot-caller, who gives orders to the soldiers. Defendant was a shot-caller. He took off his shirt to display his tattoos to show everybody this is my neighborhood.

Freeman continued that, as shown in the surveillance video, when Pang and Tith walked out of the Stater Brothers store, they made eye contact with the defendant. With the defendant standing there with his [shirt] off representing his neighborhood, he feels disrespected by the two Asian guys from another neighborhood.

The defendant actually subsequently chases down the two victims to across the street to contact them, and thats because hes now felt disrespected in his neighborhood. How can you guys mad-dog me in my neighborhood? So he goes, and he goes forward, and he re-contacts those guys.

While hes talking to the two victims, what was said is, where you from, which is a common gang term for a challenge or a threat. Hes telling these two Asian kids you better step up, you better answer up, where you from?

The victim Tith, I believe, answers, O.A.G., the other doesnt answer at all. Again, thats a huge disrespect to a man, the defendant, in his neighborhood. Hes answering back, O.A.G., and this is 12th Street neighborhood.

As it goes on, he answers back, well, this is 12th Street. And the key phrase he says is, what time is it? What hes saying is do you know what time it is, as far as something bad is going to happen now.

It continues. I believe one of the victims says, who are you, or something like that.

And he comes back and he says, well, Im Slim from 12th Street. In gang terms, him pulling out saying, Im Slim from 12th Street, hes now telling these two young guys, hey, you better recognize who I am, and whatever happens to you, look, Im going to be the one responsible, you remember Slim is my name. And then the confrontation somewhat ends.

And let me back up a minute prior. Right before it ends, the defendant puts his shirt on and puts his hat back on. This is telling me that now he knows something is going to happen, and with the community around hes now going to conceal himself and his tattoos. Its common when these gang members commit crimes, theyll end up concealing their tattoos and doing what they can so theres no witnesses. Its harder to be identified. And then he walks away.

The two victims enter the [Sav-On] store and come back out. At this point they recognize the defendant. The witnesses see that theres a conversation with a male subject on a bike.

This is again huge. This is exactly somebody as a defendant, as the shot-caller stature. He identified his targets initially. He then contacts a younger subject, a soldier from the neighborhood. Again, he identifies the victims or the targets to him. He orders what needs to be done.

And then ultimately he stands there and he supervises the execution of the victim [Tith] who responded, O.A.G., who was subsequently shot in the back of the head.

In defense, a woman who was driving near the scene testified that she heard gunshots being fired and saw two people flee from the gunfire, one of whom was on a bicycle. She also saw a person on the ground.

In closing argument, the prosecutor urged that defendant was guilty as an aider and abettor of premeditated murder and attempted premeditated murder. The argument followed the same lines as the testimony of Detective Freeman, urging that inferences of defendants culpable intent and mental state were logically derived from defendants status as a shot-caller, his conduct in confronting Pang and Tith, his conversation with the person who ultimately fired the shots, and the fact that Tith was the one who was fatally wounded. Defendant argued reasonable doubt based on inconsistencies in the testimony of the husband and wife witnesses as well as victim Pang.

DISCUSSION

1. Sufficiency of the Evidence

Defendant contends that the evidence does not demonstrate either premeditation or deliberation on the part of [defendant], and also that it fails to connect [defendant] in any definitive way to the actual shooter, who was not positively identified as someone with whom [defendant] was actually acquainted. . . . Without such evidence proving a connection between [defendant] and the shooter, the jury cannot conclude [defendant] aided and abetted the shooter in committing a murder with premeditation and deliberation. We disagree.

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] [Citation.] ( People v. Kraft (2000) 23 Cal.4th 978, 10531054.)

Here, evidence established that defendant, who was in territory claimed by his gang, issued a gang challenge to Pang and Tith; Tith responded by claiming affiliation in a rival gang; defendant replied with words to the effect that something bad was going to happen to Pang and Tith; while Pang and Tith were in the Sav-On, the bicyclist rode up to defendant, talked to him, and then rode off out of sight; and when Pang and Tith came out of the Sav-On, defendant approached them like a set-up, the bicyclist then appeared and fired at Pang and Tith, following which defendant and the bicyclist fled in the same direction. Such evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant aided and abetted the shooter in the respective premeditated murder and attempted murder of Tith and Pang.

2. Natural and Probable Consequences

In a conference regarding jury instructions, the prosecutor referred to CALJIC No. 3.02 on natural and probable consequences. The court asked whether the prosecutor was saying that Tiths death was a natural and probable consequence of the crime of assault with a firearm. Defense counsel interjected that no evidence had been introduced of defendants awareness of a firearm. As the discussion continued, the prosecutor noted that it is common to instruct under CALJIC No. 3.02 when aiding and abetting is at issue. The trial court ruled that it would give the CALJIC No. 3.02 instruction with simple assault as the target offense. Defense counsel stated that this was preferable to instructing on assault with a firearm as the target offense, although he nevertheless objected to any instruction under CALJIC No. 3.02. Ultimately, the trial court instructed under CALJIC No. 3.02 with assault as the target offense,^[1]but did not define assault in its instructions.

Defendant contends that the trial court prejudicially erred in instructing under CALJIC No. 3.02 and failing to define the elements of assault in conjunction with the CALJIC No. 3.02 instruction. The contention must fail.

A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) Thus, when the prosecutor relies on the natural and probable consequences doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. (People v. Prettyman (1996) 14 Cal.4th 248, 254, italics added.) Indeed, [t]he trial court should grant a prosecutors request that the jury be instructed on the natural and probable consequences rule only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendants confederate was a natural and probable consequence of the specifically contemplated target offense. (Id. at p. 269.)

As noted above, this case was tried on the theory that defendant shared the intent and mental state of the shooter and therefore aided and abetted him in committing a premeditated murder and an attempted premeditated murder. On the other hand, the record is devoid of substantial evidence (as opposed to speculation) that defendant intended to encourage or assist the bicyclist in merely assaulting, rather than trying to kill, Pang and Tith. Thus, because the prosecutor did not rely on the natural and probable consequences doctrine, CALJIC No. 3.02 should not have been given irrespective of whether simple assault or assault with a deadly weapon was selected as the target offense or whether that offense was defined.

On the issue of prejudice, People v. Prettyman, supra, 14 Cal.4th at pages 272274, holds that erroneous instruction under the natural and probable consequences doctrine must be deemed harmless if there is no reasonable likelihood the jury misapplied the instruction. Here, as in Prettyman, [b]ecause the parties made no reference to the natural and probable consequences doctrine in their arguments to the jury, it is highly unlikely that the jury relied on that rule when it convicted defendant . . . . (Id. at p. 273.)

And even if the jury relied on the doctrine, the courts error in not defining assault was harmless because on this evidence the jury could not have reasonably concluded that defendant aided and abetted only a simple assault. At trial, the prosecution presented evidence of the victims violation of defendants gang territory, the threat voiced by defendant when he asked the victims, you know what time it is?, and the defendants contact with the bicyclist which preceded the set-up that was engineered immediately before the shots were fired. The jury reasonably could have decided only that defendant aided and abetted at the least an assault with a firearm, the natural and probable consequences of which were murder and attempted murder.

Defendants guilt was predicated on the sole theory of liability presented by the prosecution that defendant aided and abetted the bicyclist in the premeditated murder and attempted premeditated murder of the two victims. Accordingly, there is not a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution [citation]. (People v. Prettyman, supra, 14 Cal.4th at p. 273.) Defendants contention of prejudicial error in giving the CALJIC No. 3.02 instruction must therefore be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]Defendants jury was instructed under CALJIC No. 3.02 on the natural and probable consequences doctrine as follows: One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted.

In order to find the defendant guilty of the crimes charged in Counts 1 & 2, you must be satisfied beyond a reasonable doubt that:

1. The crime or crimes of assault was were committed;

2. That the defendant aided and abetted that those crimes;

3. That a co-principal in that crime committed the crimes of assault; and

4. The crimes of murder was were a natural and probable consequence of the commission of the crimes of assault.

In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen.

You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of murder and attempted murder was a natural and probable consequence of the commission of that target crime.

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.