P. v. Ruiz
Filed 5/22/13 P. v. Ruiz CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO RUIZ,
Defendant and Appellant.
B247582
(Los Angeles
County
Super. Ct.
No. BA357126)
APPEAL from a judgment of the Superior Court of
County, Curtis B. Rappe, Judge. Affirmed as modified.
Eric R. Larson, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
The People
charged defendant Francisco Ruiz with murder (count 1) and attempted murder
(count 2), with enhancements alleged as to both counts that Ruiz committed the
offenses for the benefit of a criminal
street gang and that a principal personally and intentionally discharged a
firearm causing death. (Pen. Code,
§§ 187, subd. (a), 664/187, subd. (a), 186.22, subd. (b), 12022.53, subds.
(d), (e)(1).)
title="">[1] The charges arose from a walk-up
shooting. The prosecution theory was
that Ruiz was the shooter. At a first
trial, a jury could not reach a verdict on the murder count, and acquitted Ruiz
of attempted murder.
At a second
trial, a jury convicted Ruiz of first degree murder, with findings that the
murder was committed to benefit a criminal street gang and that a principal
personally and intentionally discharged a firearm causing death. The prosecution theory again was that Ruiz
was the shooter.
The trial
court sentenced Ruiz to a total term of 50 years to life in state prison
comprised of a term of 25 years to life on the murder count and 25 years for
the firearm enhancement. The court
ordered Ruiz to pay $7,280 in direct victim restitution through the Victims’
Compensation Board, and a $200 restitution fine, and a corresponding $200
parole revocation fine (stayed).
(§§ 1202.4, subds. (b), (f), 1202.45.)
Ruiz
appeals. We modify the terms of the
1. The Murder
In March
2009, Jose O. (the murder victim) and his girlfriend, Perla C., lived
at an apartment building on 24th Street, near San Pedro Street, with their almost one-year old
daughter.
title="">[4]
On the afternoon of March 19, 2009, Perla and others, including her
cousin, Juan C., were hanging out on the apartment building’s front porch,
talking and planning a party for Jose and Perla’s daughter’s upcoming
birthday. Sometime between 4:00 and 5:00 p.m., Perla noticed two men stopped in a
truck down the street. The men left
after about 10 minutes.
About 5:45 p.m., Jose O. arrived home from
work. He joined the group on the front
porch of the apartment building. About
10 or 15 minutes later, a man wearing a ski mask walked up to the front of the
building from the area of the intersection of 24th Street and San Pedro Street. Speaking English, the man said, “What’s upâ€
or “What’s up, homey,†then pulled out a handgun and started shooting. As Jose tried to help Perla into the
apartment building with their baby, he was shot multiple times. Perla told the masked man not to kill Jose,
but the man kept shooting anyway.
After the attack, the shooter walked on 24th Street toward Stanford Avenue.
The apartment building was in
“territory†claimed by the Primera Flats gang.
The Primera Flats gang had graffitied on 24th Street.
Gang members were sometimes present near the apartment building. Jose O. was not in a gang, and did not
have any gang tattoos. Perla C. and Juan
C. were not gang members.
name="_ftnref6" title="">[6]
Jose O.’s brother, Jesus O., also
lived in the apartment building with his family. A few minutes before the shooting, Jesus O.
drove to a nearby liquor store on the corner of 24th Street and San Pedro Street to cash his check. His wife, E.P., waited outside in their
car. While inside the store, Jesus heard
multiple gunshots coming from the area of 24th Street.
Jesus left the store, and started driving on 23rd Street toward Stanford Avenue.
He turned right onto Stanford Avenue, heading toward 24th Street.
As he got to 24th Street, Jesus saw a black Chevrolet Silverado
pickup truck at the intersection of 24th Street and Stanford Avenue.
The pickup truck was about “five or six meters†away from Jesus’s
car. A masked man with a gun in his hand
got into the bed of the pickup truck and the truck drove on Stanford Avenue in Jesus’s direction. When the pickup truck passed by Jesus’s car,
the two vehicles were only about “half a meter†apart; the driver of the truck
almost hit Jesus’s car. Jesus noticed
that the driver had a shaved head, and appeared to be about 20 years old. As the truck drove on, Jesus noticed that its
taillights appeared “dark†or “blackâ€
E.P., Jesus’s wife, saw a man with a
gun get into the black truck. As the
truck drove toward Jesus and E.P., the truck almost crashed into Jesus’s
car. E.P. got a “good look†at the
driver when it was near Jesus’s car. The
driver was Latin, about 24 or 25 years old.
Maria H. lived on 24th Street between San Pedro Street and Stanford Avenue.
On the afternoon of March 19, 2009, Maria heard gunshots, and looked out
her window. She saw a man whose face was
“covered,†holding a handgun, in front of her house. The man walked down the street toward Stanford Avenue.
A black pickup truck turned onto Stanford, and the man with the gun got
into the pickup truck, and the truck drove away.
E.B. also lived on 24th Street. At the time of the shooting, E.B. was in
front of his house talking to a friend.
He heard gunshots and turned to see a man running toward them. The man was wearing a ski mask and had a
gun. E.B. jumped into the back of a
nearby parked pickup truck. The man
stopped “a little bit†when he got near E.B., and pointed the gun in the
direction of E.B. and his friend, and asked where they were from. The masked man was about six feet away. E.B. noticed a tattoo “similar to a spiderâ€
on the man’s forearm.
name="_ftnref7" title="">[7]
The man started running again.
2. The Investigation
Los Angeles Police Department (LAPD)
Detective Tommy Thompson and his partner, Detective Gersna, responded to the
shooting homicide scene. They arrived on
scene around 8:00 p.m. By the time
Detective Thompson arrived at the scene, other LAPD officers had secured the
area around the apartment building and had already begun marking evidence with
small placards. Detective Thompson saw
Primera Flats graffiti at the intersection of 24th Street and San Pedro Street
and also in front of the apartment building.
Officers recovered five .40-caliber bullet casings in front of the
apartment building; the casings appeared to have been fired from a
semiautomatic handgun. There were
“strike marks†caused by bullets in the building. A bullet that traveled through a window was
recovered from inside the building; a bullet fragment was recovered from a
door. Detective Thompson spoke to
Perla C. and Jesus O. on the night of the shooting.
Detective Thompson learned that a
store on the corner of 24th Street and San Pedro Street had a video
surveillance camera outside the store.
The video from the camera was played for the jury. The video showed a black Chevrolet Silverado
pickup truck pulling up to the east corner of San Pedro Street just north of
24th Street at 5:46 p.m. The truck
had a distinctive decal on the driver’s side, and a distinctive chrome bumper. On the video, Detective Thompson saw a person
walk from the area of the truck south on San Pedro Street toward 24th Street
and then walked east on 24th Street. The
truck then pulled away and turned onto 23rd Street.
On March
31, 2009, Detective Thompson saw a black Chevrolet Silverado pickup truck like
the one in the liquor store video parked at a residence on 20th Street. Detective Thompson ran the license plate and
received information that it was registered to Ricardo Garcia. On
May 27, 2009, Detective Thompson saw Garcia driving the truck. When the brakes were applied, the brake
lights appeared to be tinted “smoky†as described by Jesus O. The truck had a chrome bumper. On May 28, 2009, police took Garcia’s
truck into police custody. Detective
Thompson photographed the truck.
Detective Thompson subsequently learned that Ruiz lived next door to the
residence where the detective observed Garcia’s truck on March 31, 2009.
On May 27, 2009, Detective Thompson
received a call from detectives at LAPD’s Hollywood station. The callers told Detective Thompson that they
had a man in custody who might have information about a shooting.
Detective Thompson and his partner went to the station, where they
interviewed Rosas. After initial
exchanges, the interview was recorded.
Rosas said he had information about a shooting that came from the “guy
himself.†Off-tape, Rosas said he lived
outside of the territory of the 22nd Street gang, but hung out with some guys
in the neighborhood.
Rosas told Detective Thompson that
he (Rosas) had a conversation with Ruiz in which Ruiz said that he was involved
in a shooting. Ruiz said he walked up to
a two-story apartment building wearing a ski mask and shot a man that was
standing out front. Ruiz said that
“Rica†dropped him off. On another
occasion, Rosas was with Ruiz at a recycling center when Ruiz thought he
recognized someone there as a person that was at the apartment building at the
time of the shooting. Ruiz was nervous
because he thought that the man recognized him.
On May 28, 2009, Detective Thompson
showed a six-pack photographic lineup to Jesus O. and E.P. Jesus was not able to identify anyone. E.P. identified Garcia’s photo.
3. The Criminal Case
In December 2009, the People filed
an information jointly charging Garcia and Ruiz with the murder of Jose O.
(count 1; § 187, subd. (a)), and the attempted murder of Juan C.
(count 2; §§ 664/187, subd. (a).)
As to both counts, the information alleged the crime was committed for
the benefit of a criminal street gang, and that a principal personally and
intentionally discharged a firearm causing death.
As noted above (see fn. 2,
Garcia were tried to a jury at a joint trial in early 2011. Following a mistrial in March 2011 as to the
murder count against Ruiz, the murder charge against Ruiz was tried to a second
jury in the summer of 2011. The
testimony of the percipient witnesses established the facts of the murder
summarized above.
Eyewitness E.P. identified Garcia as
the driver of the getaway truck.
Detective Thompson testified regarding his investigation, including
E.P.’s pretrial identification of Garcia from a “six-pack†lineup of
photographs, and his interview of Rosas.
The evidence of the interview showed that Rosas told Detective Thompson
that Ruiz had admitted he was the shooter.
When called by the prosecution at trial, Rosas denied
having a conversation with Ruiz about a shooting near San Pedro Street and 24th
Street.
title="">[10] Rosas testified
he knew Ruiz from around their neighborhood in the area of 23rd Street, 20th
Street and Griffith Avenue. Rosas
testified he did not recognize a photograph of Garcia, even though he (Rosas)
had previously identified Garcia in prior testimony. Rosas testified he did not remember having
previously identified Garcia. Rosas
testified he was arrested for possession of methamphetamine and a loaded
firearm on May 27, 2009. Rosas
testified that he recalled talking to police at a police station on the day he
was arrested, but he denied that he had told police that he had information
about a shooting. Rosas testified that,
at the time of his arrest, he did not know anything about a shooting. Rosas testified that he never spoke to Ruiz
about the shooting. When shown a copy of
a transcript of the recording
of his interview, and a copy of a police report as to the interview, Rosas
continued to testify that he did not say anything to the police. The prosecutor played several parts of the
recording of Rosas’s interview, each time focusing on different parts of the
information given by Rosas during the interview. Each time the prosecutor played a part of
Rosas’s interview, Rosas denied that he said anything to the police. In essence, Rosas implicitly denied it was
him speaking on the tape.
LAPD Officer Ronald Berdin testified
as a gang expert. In response to a hypothetical
question with facts tracking those involved in the shooting at the apartment
building, Officer Berdin offered his opinion that such a crime would have been
committed to benefit the 22nd Street gang.
The evidence showed that Ruiz was an admitted member of the 22nd Street
gang.
In his defense, Ruiz called E.B. to
challenge Ruiz’s identity as the shooter.
In that vein, Ruiz’s counsel elicited testimony from E.B. regarding a
tattoo he saw on the shooter’s arm on the day of the murder, and how the tattoo
differed from a tattoo on Ruiz’s arm at the time of trial. Ruiz’s defense otherwise largely
consisted of contesting the credibility of Rosas’s interview with Detective
Thompson, and, in particular, with the evidence showing that Rosas had stated
out-of-court that he was the shooter. In
short, Ruiz contended the evidence showing he was the masked shooter was not
sufficient to support his conviction.
On August 1, 2011, the jury
returned a verdict finding Ruiz guilty of first degree murder, with findings he
committed the offense for the benefit of a criminal street gang and that
a principal personally and intentionally discharged a firearm causing death.
On October 7, 2011, the trial
court sentenced Ruiz to a total aggregate term of 50 years to life, and ordered
him to pay $7,280 for direct victim restitution to the Victims’ Compensation
Board, a $200 restitution fine and a $200 parole revocation find (stayed).
Ruiz filed a timely notice of
appeal.
1. Prior Conviction Evidence
Ruiz contends
his murder conviction must be reversed because his trial counsel provided
ineffective assistance of counsel in failing to object to evidence showing that
Ruiz had a prior firearm-related
conviction. We disagree.
A. The Trial Setting
As noted above, to prove the gang enhancement allegation ancillary to the
murder count at the first trial as to both Garcia and Ruiz, the prosecution
introduced evidence that Jose Curiel, a 22nd Street gang member, was convicted of
possession of a firearm by a felon on October 27, 2006, and that Ernesto
Naranjo, another member of the gang, was con-victed of assault with a
semiautomatic firearm on October 26, 2007.
The jury never reached the gang enhancement ancillary to the murder
count as to Ruiz at the first trial because, as also noted above, the jurors
could not reach a verdict on the murder count as to Ruiz. The jury found the gang enhancement true as
to Garcia.
Before the
start of the second trial against Ruiz alone, the prosecution filed a motion in
limine to admit evidence ‑‑ for purposes of proving the gang
enhancement allegation ‑‑ showing that Ruiz was arrested in July
2007 for criminal possession of a firearm, and ultimately convicted of a
firearm-related offense. Citing the
Supreme Court’s then-recent ruling in People v. Tran (2011) 51 Cal.4th
1040 (Tran), the
prosecution’s motion argued that Ruiz’s prior conduct and conviction could be
admitted to prove the “predicate offense†element of the gang enhancement
statute, and that the evidence of Ruiz’s prior conduct and conviction was not
otherwise inadmissible under Evidence Code section 352.
Ruiz’s counsel
did not file a written response to this motion.
At the hearing on the motion, Ruiz’s counsel stated: “. . . I think it’s clear from
the Tran case that the prosecution
can use the defendant’s prior conviction for proving up the predicate [offense]
aspect of the gang enhancement. [¶] But it also allows the . . .
trial court to retain jurisdiction [sic]
as to how much of the information of the prior conviction comes in under a 352
analysis. [¶] . . . I would ask that the
court ‑‑ if the court’s going to allow them to use the prior
conviction for establishment of the predicate [offenses] [‑‑] I
would ask that the court limit the facts that come
in . . . .â€
Continuing on in this same vein, Ruiz’s counsel argued that the court
should exclude certain factual details about Ruiz’s July 2007 firearm-related
offense, such as the fact that the firearm Ruiz had possessed on the prior
occasion was a .40-caliber firearm, the same caliber as the gun used in the
murder being tried, and that the location of Ruiz’s arrest was only about two
blocks from the scene of Jose O.’s murder.
Ruiz’s counsel argued that the specific details of Ruiz’s prior
firearm-related offense would be “highly prejudicial,†and that the court
should only admit evidence showing that Ruiz had suffered a prior
firearm-related conviction. Partially
consistent with defense counsel’s argument, the court ruled that the
prosecution could not introduce evidence of the caliber of the weapon involved
in Ruiz’s prior arrest for the firearm offense, but could introduce facts
describing the arrest, including the area where the arrest occurred and his
admission to gang membership.
During trial,
LAPD Officer Michael Chavez testified that he had arrested Ruiz on July 3,
2007, near the intersection of 21st Street and South Central Avenue, for being
in possession of a loaded and unregistered firearm. Then, during testimony from the prosecution’s
gang expert, the prosecution again introduced evidence of the same two
predicate offenses that were introduced at the first trial (those involving
gang members Curiel and Naranjo). The
prosecution’s gang expert also discussed the facts of Ruiz’s July 2007 arrest
in discussing predicate offenses for the gang enhancement presentation. In addition, the prosecution’s gang expert
discussed a street conversation that he had with Ruiz in December 2008 in which
Ruiz admitted his gang membership. After
both sides had rested, a stipulation was read to the jury that Ruiz was
convicted on July 13, 2007, for “prohibited possession of a firearm as
referred to in Penal Code section 186.22, subdivision (e)†(
July 3, 2007, that Naranjo “suffered a conviction for violating Penal Code
section 245(b)†and that Curiel suffered a conviction for “violating Penal Code
section 12021, subdivision (a).â€
B. Analysis
To
be granted relief on a claim of
defendant must establish “(1) trial counsel failed to act in the manner to be
expected of reasonably competent attorneys acting as diligent advocates and (2)
it is reasonably probable that a more favorable determination would have
resulted in the absence of counsel’s failings.â€
(People v. Lewis (1990) 50
Cal.3d 262, 288; see also Strickland v.
Washington (1984) 466 U.S. 668 (Strickland).) When
the record on appeal “‘sheds no light’†on why a defendant’s counsel acted or
failed to act in the manner challenged, the judgment will be affirmed unless
the defendant establishes there could be “‘no satisfactory explanation’†for
counsel’s allegedly deficient actions or omissions. (People
v. Ledesma (2006) 39 Cal.4th 641, 746.)
A defendant establishes a reasonable probability of a more favorable
determination when he persuades a reviewing court that the result of his trial
was fundamentally unfair or unreliable.
(Strickland, supra, at
p. 694.)
On appeal, Ruiz
argues his trial counsel misunderstood Tran
to have held that the prosecution “can use a defendant’s prior as a predicate
offense in all cases.†(Italics added.) Ruiz argues that, if his counsel had
correctly read Tran, then he could
have and should have objected to all
evidence of Ruiz’s prior firearm-related offense under Evidence Code section
352. Ruiz argues such an objection would
have succeeded, and that, absent the evidence of his prior offense, the result
of his second trial would have been more favorable.
In Tran,
the Supreme Court ruled that evidence of a defendant’s own prior criminal
conduct may be admitted to prove a predicate offense under the gang enhancement
statutes (§ 186.20 et seq.), subject to an appropriate balancing of the
probative value of the evidence versus its prejudicial effect under Evidence
Code section 352. (Tran, supra, 51 Cal.4th at pp. 1046-1050.) In so ruling, the court rejected the argument
that use of a defendant’s prior offense to show a predicate offense is necessarily
prohibited in all cases by Evidence Code section 352. (Tran, at p. 1046.)
The Supreme Court held that Evidence Code section 352 does not
automatically prohibit the use of evidence of a defendant’s prior criminal
conduct in all cases, nor does it automatically permit the use of the same in
all cases. (Tran, at pp. 1048-1049.) In summary:
“That evidence of a defendant’s separate offense may be admissible to
prove a predicate offense does not mean trial courts must in all cases admit
such evidence when offered by the prosecution.
Considerations such as those described in People v. Ewoldt [(1994)]
7 Cal.4th [380,] 404-405, will still inform the trial court’s discretion and in
an individual case may require exclusion of the evidence.†(Id. at p. 1049.)
We find no
performance in Ruiz’s current case. In
our view, the record does not support Ruiz’s assertion on appeal that his trial
counsel did not understand the Tran
case and, in particular, does not support Ruiz’s assertion that his trial
counsel “affirmatively conceded†that evidence of a defendant’s prior
conviction is admissible under Tran
to prove predicate offenses “in all cases.â€
On the contrary, Ruiz’s trial counsel recognized that, under
defendant’s prior criminal conduct to prove the predicate offenses aspect of a
gang enhancement allegation. That was
and is a correct, albeit perhaps truncated, statement about
Tran held that evidence of a
defendant’s prior criminal conduct to
prove the predicate offenses aspect of a gang enhancement allegation is not
subject to blanket exclusion in all cases, but instead, such evidence “can be
used†depending upon the circumstances.
Ruiz’s trial
counsel argued to the trial court that it had discretion under
regarding a defendant’s prior criminal conduct “comes in under a 352
analysis.†That, too, was and is a
correct statement of the law under Tran. Tran
allows for either total or partial exclusion of evidence concerning a
defendant’s prior criminal conduct, depending upon the circumstances presented
in a particular case, subject to a balancing evaluation under Evidence Code
section 352. Ruiz’s argument on appeal
would have us construe his trial counsel’s use of the words “how much evidence
comes in†to constitute a concession that “some†evidence was going to be
admitted no matter what. We read the
record differently. Ruiz’s trial counsel
argued to the trial court that it should limit the evidence that would come in,
“if the court [was] going to allowâ€
the prosecution to use the evidence of his prior criminal conduct to prove the
predicate offenses aspect of the gang enhancement allegation. Ruiz’s counsel argued for limitation of the
evidence as an alternative, “if†the court allowed the prosecution to admit
such evidence.
So, where does
the record leave us in examining Ruiz’s ineffective assistance of counsel
claim? In our view, the light cast by the
record illuminates a tactical decision by Ruiz’s trial counsel to try making
the best of the situation by arguing ‑‑ successfully in part we add
‑‑ that the evidence of Ruiz’s prior criminal conduct should be
sanitized. A lawyer’s decisions as to
making evidentiary objections at trial are generally a matter of tactics, which
should not be subjected to judicial hindsight evaluation on appeal. (People
v. Kelly (1992) 1 Cal.4th 495, 520.)
On the contrary, in evaluating a lawyer’s trial tactics, we indulge a
“strong presumption†that his or her conduct “falls within the wide range of
reasonable professional assistance.â€
(See Strickland, supra, 466
U.S. at p. 689.) Given the record before
us on appeal, we cannot find that there is “no
satisfactory explanation†for the actions of Ruiz’s trial counsel.
In any event, assuming without deciding that there was
performance in the form of too much indulgence regarding the admissibility of
evidence of Ruiz’s prior criminal conduct, we would not reverse his murder
conviction because we are not convinced that the result of his trial would have
been different had his trial counsel argued more strenuously for the total
exclusion of evidence. First, we do not
agree with Ruiz that such an objection would have been successful. A review of the reporter’s transcript of the
Evidence Code section 402 hearing shows the trial court undertook a balancing
evaluation of the evidence of Ruiz’s prior firearm-related arrest and viewed
the evidence to be more probative than prejudicial, as the court was permitted
to do under Tran. The court expressed its respect for jurors’
ability to distinguish between the need for identity evidence to convict of the
substantive murder charge and the use of evidence for other purposes. We find no reasonable probability that the
court would have totally excluded the evidence of Ruiz’s prior firearm-related
arrest had Ruiz’s counsel more strenuously argued for total exclusion.
More
importantly, we do not agree that the jury’s verdict necessarily resulted, as
Ruiz contends, from the introduction of the evidence of his prior
firearm-related arrest and conviction.
The record supports a conclusion that Ruiz’s conviction rested on the
second jury’s assessment of whether or not Ruiz had, in fact, admitted to Rosas
that he (Ruiz) was the shooter. In our
view, the evidence of Ruiz’s prior conduct did not contribute to the jury’s
verdict on the substantive murder count because it did not relate to his guilt
for the murder; it did not relate to his identity as the shooter. Moreover, the prior firearm-related arrest
evidence was admitted so that it could be considered in the context of the gang
expert’s testimony on the gang enhancement allegation. It was not critical as to the jury’s decision
at the second trial to convict.
Apart from
this, the record does not support any particular conclusions about the first
trial and the second trial, except that the jury at the first trial could not
unanimously agree on Ruiz’s identity as the shooter, whereas the jury at the
second trial could. We see nothing in
the record to suggest that any particular thought processes went into one or
the other of the two jury’s decisions.
In the end, while we agree with Ruiz that the evidence presented
at his first and second trial was substantially similar, with the exception of
the added evidence of his prior firearm-related arrest at his second trial,
second trial must be viewed to be the result of the added evidence.
2. Restitution
Ruiz
contends, the People concede, and we agree that the abstract of judgment should
be amended to reflect joint and several liability with Garcia for the direct
victim restitution fine ($7,280) payable to the Victims’ Compensation
Board. The trial court orally pronounced
that the restitution payment was to be joint and several with Garcia. The trial court is directed to correct the
abstract of judgment accordingly.
DISPOSITION
The
judgment is affirmed as modified.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1] All further section references are to
the Penal Code, unless otherwise indicated.
name="_ftn2" title="">[2] The
record strongly supports the conclusion that the jury found there had been no
attempted murder as to a second victim hit by gunfire because there was no
intent to kill the second victim; the acquittal on the attempted murder count
does not suggest the jury found the evidence insufficient to prove Ruiz’s
identity as the shooter. The split in
the jury on the murder charge against Ruiz at the first trial was 10 for guilty
and two for not guilty. The People also
charged Ricardo Garcia with the same offenses and enhancements. Ruiz and Garcia were jointly tried at the
first trial. The prosecution’s theory
was that Garcia aided and abetted the shooting by acting as the drop-off and
getaway driver for the shooter. The jury
acquitted Garcia of the attempted murder count, and acquitted him of first
degree murder. The jury convicted Garcia
of second degree murder, with gang and firearm enhancement findings. In short, the jury found that Garcia had, in
fact, been a willing participant in the shooting. We address Garcia’s appeal from his murder
conviction in a separate opinion.
