P. v. Villalobos

 

 

 

 

 

 

 

 

 

 

Filed 8/14/13  P. v. Villalobos CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   JOHNNY VILLALOBOS,               Defendant and Appellant.

B239739         (Los Angeles County       Super. Ct. No. MA040107)

 

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Kathleen Blanchard, Judge.  Reversed and remanded for further
proceedings.

            Laura S. Kelley, 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, Senior
Assistant Attorney General; Susan Sullivan Pithey, Supervising Deputy Attorney
General; and Rene Judkiewicz, Deputy Attorney General, for Plaintiff and
Respondent.

 

_______________________

 

INTRODUCTION

            Defendant
Johnny Villalobos was charged with the murder
of Juan Valdez.  At trial, Villalobos
admitted he aimed a pistol toward Valdez’s
chest and fired a single shot.  He testified,
however, that he shot Valdez
because he had been attacked and was in fear for his life.  The jury convicted Villalobos of first degree
murder and found true special allegations related to firearm and gang
enhancements.

            On appeal, Villalobos argues that the trial court’s use
of the 1996 versions of CALJIC numbers 8.71 and 8.72, which instructed the jury
on deciding between greater and lesser offenses, violated his href="http://www.fearnotlaw.com/">due process rights and his right to jury
by trial.  He further asserts that there
was insufficient evidence to support a true finding on the gang
enhancement.  We reverse the judgment and
remand for further proceedings, concluding that the gang enhancement was not
supported by substantial evidence.

BACKGROUND

A.    
>Events Preceding Trial

On October 13, 2007, Anthony Sanchez attended a party and
was attacked by a group of men. 
Sanchez’s friend, Juan Valdez, attempted to help him.  Multiple witnesses heard gun shots and saw
several individuals run out of the party. 
Valdez sustained gunshot
wounds and died from his injuries.

Two months after the shooting,
appellant Johnny Villalobos, who identified himself as a member of the gang
“Down As Fuck” (DAF), met with police officers and admitted he shot Valdez.  During a recorded interview, Villalobos told
police he was providing “security” at the party, which involved “patting
[people] down” before they entered the premises.  While engaged in these duties, Villalobos
“travel[ed] back and forth [to drink] at the Tequila
Place.” 

Approximately one hour after
arriving at the party, Villalobos saw his friend, Freddie Prado, in a fight
with “some . . . guys.”  Villalobos went
to help Prado and saw two men “starting to come in . . . like they [were] gonna
jump in . . . against Freddy.” 
Villalobos began fighting with one of the men and was struck in the head
by Juan Valdez, who started “kicking his ass.” 
Villalobos felt dizzy and was afraid he was going to get knocked
out.  While standing a foot and a half
away from Valdez, Villalobos pulled
a .380 pistol from his pocket and fired once toward Valdez’s
chest.  After discharging the weapon,
Villalobos ran out of the party and threw the pistol into a friend’s car and
told him to “get rid of it.” 

Villalobos
stated that he “did not mean for [the shooting] to happen,” explaining that he
“wasn’t thinking right” and had fired his weapon in self-defense.  He also stated that he “wasn’t at a stage
clear of mind” because he was “pretty drunk” and had been “smoking weed.”  When officers asked Villalobos why he had a
gun at the party, he stated that he was “a gang member” and did not know “where
his rivals were,” adding: “[t]here are gangs that hate us–gangs that hate
me.” 

B.        Trial Court Proceedings

On June 25, 2008, the Los Angeles
District Attorney filed an information charging Villalobos and Freddie Prado
with a single count of murder (Penal Code, § 187, subdivision (a)href="#_ftn1" name="_ftnref1" title="">[1])
and charging Prado with possession of a firearm by a felon. (§ 12021, subd. (a)
(1).)  The information also included special
allegations of firearm (§ 12022.53, subds. (b),(c),(d) and (e)) and gang
enhancements.  (§ 186.22, subdivision
(b).)  

>1.     
Testimony
at trial

>a.     
The
prosecution’s witnesses

The prosecution called several
witness to testify at trial, including: 
Anthony Sanchez, who was Valdez’s friend; Xochitil Chavez, who was a
friend of Sanchez’s girlfriend; Jancie Ayala, who owned the property where the
party was held; Los Angeles County Deputy Sherriff Elizabeth Smith, who
investigated the shooting; and Los Angeles County Sherriff’s Department
Detective William Pickett, who testified as a gang expert.

Anthony Sanchez testified that, on
the night of October 13, 2007,
he attended an outdoor party near Lancaster, California.  After paying an admission fee,  Sanchez saw his friend, Juan Valdez, and his
then-girlfriend, Sanita Morales.  Morales
complained to Sanchez that she had been hit on by someone at the party and
Sanchez hugged her.  While Sanchez had
his arm around Morales, a male approached, who began cursing at Sanchez and
pushing him.  The assailant eventually
“started throwing punches.”  Seconds
later, three or four more individuals began punching and kicking Sanchez, who
tried to fight back.  Sanchez eventually
fell to the ground and lost consciousness. 
Upon regaining consciousness, Sanchez heard gunfire and then saw Valdez
lying near the entrance.  Sanchez had no
memory of the identity of his attackers. 


Xochitil Chavez testified that she
attended the party with Morales, who Chavez described as a friend.  After entering the party, Chavez saw several
Hispanic individuals who she believed to be gang members based on their
clothing and bald heads.  She also saw
that one of the individuals – who she later identified as defendant Freddie
Prado–had a tattoo of the letters “DAF” on his arm, which she recognized as a
symbol for the gang “Down As Fuck.” 

Chavez stated that before Sanchez
had arrived at the party, Prado tried to “hit on” Morales.  According to Chavez, Morales looked
“annoy[ed]” at Prado because she “didn’t want to talk to him.”  When Sanchez arrived, Morales informed him
that someone had been hitting on her and Sanchez got mad.  Shorty thereafter, Prado approached Sanchez
and they started arguing about “how those guys were bothering [Morales].”  An individual with Prado then started
attacking Sanchez.  Although the fight
was initially “one-on-one,” Prado and several other individuals that Chavez
believed to be gang members quickly joined “into it and . . . were all beating
on Sanchez.” 

Chavez testified that Juan Valdez
tried to help Sanchez by pushing away the assailants.  The group of assailants then “started beating
on [Valdez],” who fell to the ground. 
While Valdez was on the ground, Chavez heard two or three gunshots.  After the shots were fired, Chavez saw the
people that she believed to be gang members run out of the party and get into a
car.  She then saw Valdez laying on the
ground with gunshot wounds.  Although
Chavez did not see who shot Valdez, she identified Prado as one of the
individuals who was involved in the beating of both Sanchez and Valdez.  

Janice Ayala, who owned the house
where the party was held, testified that she saw a girl “interacting with a
[Hispanic] male” who “look[ed] very angry.” 
Ayala stated that the girl “looked like she was just trying to get away
from a situation she didn’t want to be a part of; like being hit on maybe . .
.”  After this interaction, a group of
males approached the female and the male she was standing with and started
arguing.  Initially, a few individuals
started pushing the male around, and then a whole group of six or seven males
who “all seemed to know each other” joined in. 
Ayala stated that Valdez “came in to help” Sanchez and that the
assailants “immediately starting attacking him too.”  Ayala then heard two “pop[s],” which she
believed to be gunshots, and saw Valdez “drop” to the ground.  Ayala was unable to determine whether Prado
or Villalobos had been involved in the fights with Sanchez and Valdez. 

Los Angeles County Deputy Sherriff
Elizabeth Smith investigated Valdez’s death and testified that two .380 caliber
bullet casings were found at the scene of the party, one of which was found
underneath Valdez’s body.  The casings
appeared to have been “recently used” with “gun powder still on them.”  Smith stated that, during an interview,
Villalobos admitted he had fired his weapon once toward Valdez’s chest.  Smith further testified that Valdez had
suffered gunshot wounds to the “front abdomen, . . . the back, and . . . the
arm.”  The coroner report stated that the
shots to the back and abdomen were “rapidly fatal” and that Valdez displayed
blunt force trauma, head injuries, laceration to the lips and abrasions to the
right side of the face that were “consistent with being assaulted by hands and
feet.” 

Los Angeles County Sherriff’s
Department Detective William Pickett, who the prosecution called as a gang
expert, testified that DAF was a “violent” Hispanic criminal street gang in the
Palmdale area whose primary activities involved crimes ranging from vandalism
to murder.  According to Pickett, a large
percentage of the DAF cases he had investigated were “violen[t] in nature,
either stabbing or shooting.”  Pickett also
testified that he had reviewed several field investigation cards indicating
that Prado and Villalobos were members of DAF. 


The prosecutor asked Pickett to
review two minute orders pertaining to two individuals named Robert Ramirez and
Santiago Nungaray.  After reviewing the
orders, Pickett testified that the documents indicated Ramirez and Nungaray had
been charged with “discharge of a firearm at a residence, vehicle, and occupied
dwelling.”  Pickett further testified
that, based on other cases he had investigated, he knew that Ramirez and
Nungaray were active members of DAF at the time they were charged with their
crimes, which occurred in August of 2006. 


Pickett also
testified that when gang members are involved in an altercation, a simple fight
can frequently escalate into more violent behavior, including shootings.  Pickett explained that gang members were
expected to back each other up and that coming to the defense of a fellow gang
member was “required” unless the gang member who began the altercation
instructed otherwise.  Pickett testified
that, on the night Valdez was shot, at least five DAF members were present at
the party, which included Prado, Villalobos and three other DAF members who had
been involved in prior firearms incidents. 


b.     
Testimony
of Johnny Villalobos

The only witness for the defense
was Johnny Villalobos, who admitted he was a member of DAF.  Villalobos testified that he drank alcohol
before attending the party and had a “pretty good buzz on” when he
arrived.  While conducting pat down
searches near the entrance to the party, Villalobos saw Prado in a fight and
ran over “to help.”  As Villalobos moved
toward Prado, two other men approached the fight.  Villalobos and two of his friends began
fighting with one of the men.  The other
man–Juan Valdez–came from behind Villalobos and started punching him in the
back of the head.  Villalobos stated that
he was “taking a beating” because Valdez was “bigger” and “had more
power.”  Villalobos believed his “life
and safety was in danger,” “shot once and ran to the car.” 

Villalobos stated that although he
knew the gun was pointed toward the general area of Valdez’s chest when he
pulled the trigger, he had not specifically intended to aim at Valdez’s
chest.  When asked whether he could
recall what he was thinking at the time of the incident, Villalobos stated “I
was drunk.  I really didn’t–it was more
of a reaction than a thought because I was not in a clear state of mind. I was
drunk, terribly drunk off alcohol.  I had
been smoke [sic] marijuana as well that night as well.”  He later added that he fired the weapon because
he was “scared” and “afraid” of Valdez “kick[ing] his ass.”

During
cross-examination, Villalobos reiterated that he had fired the weapon to
“protect[]” his “life and . . . safety,” explaining that the “alcohol and weed”
had made it difficult to defend himself. 
He admitted, however, that despite his intoxication, he was not
stumbling, he was able to determine that Prado was in a fight, he was aware he
had a gun, he knew how to use the gun and was aware he “shot the guy who
assaulted [him].”  Villalobos also
admitted that he was about an “arm length” away from Valdez when he pulled the
trigger and that he knew shooting someone in the chest area might result in
death.  He maintained, however, that he
had not aimed the weapon, but had just “pulled out [the] gun, and []
shot.”  

2.     
Verdict
and sentencing

            The jury
convicted Villalobos of first degree
murder.  It also found true special
allegations that: (1) Villalobos had personally and intentionally discharged a firearm,
causing great bodily injury and death within the meaning of section 12022.53,
subdivision (d); and (2) Villalobos committed the murder for the benefit of a
street gang within the meaning of section 186.22, subdivision (b).href="#_ftn2" name="_ftnref2" title="">[2]> 

The court sentenced Villalobos to a
term of 60 years to life in prison: a 25 years to life term for first degree
murder; a consecutive 25 years to life term for the firearm enhancement
(§12022.53, subd. (d)); and a consecutive 10-year term for the gang enhancement
pursuant to section 186.22, subdivision (b)(1)(C).  Villalobos filed a timely appeal.

DISCUSSION

Villalobos
argues that the trial court erred in: (1) instructing the jury on deciding
between greater and lesser offenses; and (2) imposing a ten-year gang
enhancement. 

A.    
>The Trial Court Did Not Err In Instructing
the Jury on Greater and Lesser Offenses

            Villalobos argues that the trial court erred when
instructing the jury on how to decide the degree of murder or, alternatively,
whether the unlawful killing was murder or voluntary manslaughter.  More specifically, he contends that the trial
court’s use of the 1996 versions of CALJIC Nos. 8.71 and 8.72, which have since
been amended, violated his constitutional rights by effectively skewing the
jury toward the greater offense. 

1.     
Summary
of jury instructions at trial

            The trial
court instructed the jury on three types of unlawful killings:  first degree murder, second degree murder and
voluntary manslaughter based on an unreasonable belief in the necessity to
defend.  The jurors were further
instructed that if they found Villalobos guilty of an unlawful killing, they
had to “unanimously agree as to whether he [wa]s guilty of murder of the first
degree or murder of the second degree or voluntary manslaughter.” 

            The court
also provided an instruction patterned on the then-current version of CALJIC
No. 8.71 (6th ed. 1996) regarding the choice between second and first degree
murder:  “If you are convinced beyond a
reasonable doubt and unanimously agree that the crime of murder has been
committed by a defendant, but you unanimously agree that you have a reasonable
doubt whether the murder was of the first or of the second degree, you must
give defendant the benefit of that doubt and return a verdict fixing the murder
as of the second degree.”  The court
provided a similar instruction regarding the choice between murder href="http://www.fearnotlaw.com/">versus manslaughter, which was patterned
on the then-current version of CALJIC No. 8.72 (6th ed. 1996): “If you are
convinced beyond a reasonable doubt and unanimously agree that the killing was
unlawful, but you unanimously agree that you have a reasonable doubt whether
the crime is murder or manslaughter, you must give the defendant the benefit of
that doubt and find it to be manslaughter rather than murder.”

            The trial
court also instructed the jury under CALJIC No. 8.75, which “concerns the
so-called ‘acquittal-first’ rule for lesser-included offenses.”  (People
v. Bacon (2010) 50 Cal.4th 1082, 1109). 
As given, the instruction informed the jury that if it unanimously found
that Villalobos had not committed first degree murder, it could convict him of
the lesser included offenses of second degree murder or voluntary
manslaughter.  The instruction further
stated that the jurors would receive separate guilty and not guilty verdict
forms for each of those three offenses and that it had the discretion to
consider the offenses in whatever order it chose. 

The instruction also provided
detailed guidelines to aid the jury in filling out the verdict forms,
explaining:  (1) if the jury unanimously
found the defendant guilty of first degree murder, it should sign the
corresponding guilty verdict form on first degree murder and leave all other
verdict forms unsigned; (2) if the jury was unable to reach a unanimous verdict
as to first degree murder, it was to report its disagreement to the court
without signing any of the verdict forms; (3) if the jury unanimously found the
defendant not guilty of first degree murder, but guilty of second degree
murder, it should sign the corresponding verdict forms on first and second
degree murder and leave all other verdict forms unsigned; (4) if the jury
unanimously found the defendant not guilty of first degree murder, but was
unable to reach a unanimous verdict on second degree murder, it should sign the
corresponding not guilty verdict form on first degree murder, report its
disagreement on second degree murder to the court and leave all other verdict
forms unsigned; (5) if the jury unanimously found the defendant not guilty of
first degree murder, not guilty of second degree murder and guilty of
manslaughter, it should sign each of the corresponding verdict forms and leave
the remaining verdict forms unsigned; (6) if the jury unanimously found the defendant
not guilty of first degree murder and second degree murder, but was unable to
reach a unanimous verdict on manslaughter, it should sign the corresponding not
guilty verdict forms on first and second degree murder, report its disagreement
on manslaughter to the court and leave the remaining the verdict forms
unsigned; (7) if it unanimously found the defendant not guilty of first degree
murder, second degree murder or manslaughter, it should sign the corresponding
not guilty verdict forms and leave the remaining verdict forms unsigned. 

            The trial court also provided the jury instructions
patterned on CALJIC No. 8.50, which explained the difference between murder and
manslaughter, and CALJIC 17.40, which explained the jurors’ duty to provide
their own individual opinion and not decide any issue based on the views of
other jurors.  The court also informed
the jury that it should consider the instructions “as a whole and each in light
of all the others” (CALJIC 1.01) and that every part of each instruction was of
equal importance. (CALJIC 17.45.)

2.     
The
jury’s findings demonstrate there is no reasonable likelihood that it was
confused by CALJIC Nos. 8.71 or 8.72

Villalobos argues that the 1996
version of CALJIC No. 8.71 violated his due process rights and right to jury
trial by suggesting to jurors that if they unanimously found the crime of
murder had been committed, they were required to return a verdict of first
degree murder unless every juror found there was a reasonable doubt as to
whether the murder was of the first or of the second degree.  Thus, according to Villalobos, “first degree
murder was the default verdict . . .[,] applying unless the jurors >unanimously agreed that they had a
reasonable doubt about the degree of murder.” 


He raises the
same argument with respect to the 1996 version of CALJIC No. 8.72, asserting
that the instruction created the impression that if the jury unanimously agreed
he had committed an unlawful killing, it was required to return a verdict of
murder unless every juror found there was a reasonable doubt as to whether the
unlawful killing constituted murder or manslaughter. 

a.     
Standard
of review

            “We
determine whether a jury instruction correctly states the law under the
independent or de novo standard of review. 
[Citation.]  Review of the
adequacy of instructions is based on whether the trial court ‘fully and fairly
instructed on the applicable law.’ 
[Citation.]  ‘“In determining
whether error has been committed in giving or not giving jury instructions, we
must consider the instructions as a whole [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.” 
[Citation.]’  [Citation.]  ‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’ 
[Citation.]”  (>People v. Ramos (2008) 163 Cal.App.4th
1082, 1088.)

            In assessing whether an instructional error occurred, the
test is not whether a “‘reasonable juror’ could
have misapplied the [instruction] as the defendant asserts, but rather under
the more tolerant test of whether there is a ‘reasonable likelihood’ that the
jury actually misconstrued the law in light of the instructions given, the
entire trial record and the arguments of counsel.”  (People
v. Dieguez (2001) 89 Cal.App.4th 266, 276 (Dieguez); see also People v.
Mayfield (1997) 14 Cal.4th 668, 777.)

b.     
Summary
of relevant case law

            Three prior
decisions have analyzed whether the 1996 versions of CALJIC Nos. 8.71 and 8.72
violate a defendant’s due process rights and right to fair trial.href="#_ftn3" name="_ftnref3" title="">[3]  In People
v. Pescador (2004) 119 Cal.App.4th 252 (Pescador),
the defendant argued that CALJIC No. 8.71 (6th ed. 1996) “eliminate[d] the
presumption that murder is of the second degree by stating that a defendant is
entitled to the benefit of the doubt as to degree only if the jury unanimously
agrees there is reasonable doubt in the first place.”  (Id.
at p. 256.)  The defendant raised an
identical argument regarding CALJIC No. 8.72 (6th ed. 1996), asserting that it
effectively created a presumption of murder rather than manslaughter.  

The Third District rejected both
arguments, concluding that, in light of other instructions given at trial, 8.71
and 8.72 were not likely to cause the jury to believe it could only return a
verdict on the lesser offense if every juror had a reasonable doubt as to
whether the greater or lesser offense had been committed.  The court explained that any potential
confusion from CALJIC No. 8.71 had been remedied by CALJIC No. 17.11, which was
a parallel instruction on choosing the the degree of murder that contained no
reference to unanimity:  “If you find the
defendant guilty of the crime of murder, but have a reasonable doubt as to whether
it is of the first or second degree, you must find him guilty of that crime in
the second degree.”  The court also
explained that the trial court had provided CALJIC No. 17.40, which instructed
jurors that they had a duty to decide the case for themselves and not “decide
any question in a particular way because a majority of the jurors, or any of
them, favor that decision.”  (>Pescador, supra, 119 Cal.App.4th at p.
257.)  According to the court, these two
additional instructions “fl[ew] in the face” of defendant’s assertion that
CALJIC No. 8.71 might cause jurors to believe they could not give the defendant
the benefit of reasonable doubt unless every juror agreed that such a doubt
existed. 

The court also held that any
potential confusion caused by the unanimity language in CALJIC No. 8.72 had
been remedied by CALJIC No. 8.50, which, as given, stated: “‘To establish that
a killing is murder and not manslaughter, the burden is on the People to prove
beyond a reasonable doubt each of the elements of murder . . .’”  (Pescador,
supra, 119 Cal.App.4th at p. 258.) 
According to the court, “CALJIC No. 8.72, when considered in context
with CALJIC Nos. 8.50, 17.11, and 17.40, did not instruct the jury that it had
to make a unanimous finding that they had a reasonable doubt as to whether the
crime was murder or manslaughter in order for defendant to receive the benefit
of the doubt.”  (Id. at p. 258.) 

            In >People v. Gunder (2007) 151 Cal.App.4th
412 (Gunder), the Third District
extended the holding of Pescador, ruling
that CALJIC No. 8.71 was not likely to confuse jurors where the trial court had
given CALJIC No. 17.40, but had failed to provide the parallel instruction in
CALJIC No. 17.11:  “In the present case,
the court did not instruct the jury with [CALJIC No. 17.11]. . . . We disagree
this is a crucial distinction.  . . .
What is crucial in determining the reasonable likelihood of defendant’s posited
interpretation is the express reminder that each juror is not bound to follow
the remainder in decision making.  Once
this principle is articulated in the instructions, a reasonable juror will view
the statement about unanimity in its proper context of the procedure for
returning verdicts, as indeed elsewhere the jurors are told they cannot return
any verdict absent unanimity and cannot return the lesser verdict of second
degree murder until the jury unanimously agrees that the defendant is not
guilty of first degree murder.”  (>Gunder, supra, 151 Cal.App.4th at p.
425.)

            Most
recently, in Moore, supra, 51 Cal.4th
386, the California Supreme Court considered the defendant’s argument that the
1996 versions of CALJIC Nos. 8.71 and 8.72 “violated his constitutional due
process and jury trial rights by suggesting to jurors that they must return a
verdict on the greater offense unless they unanimously doubted whether it had
been proven.”  (Id. at p. 410.)  The Supreme
Court summarized the holdings in Pescador
and Gunder, noting that the trial
court in the case before it had not provided CALJIC Nos. 17.11 or 8.50. 

            The Court
acknowledged that the 1996 versions of CALJIC Nos. 8.71 and 8.72 were
potentially confusing:  “We conclude the
better practice is not to use the 1996 revised versions of CALJIC Nos. 8.71 and
8.72, as the instructions carry at least some potential for confusing jurors
about the role of their individual judgments in deciding between first and
second degree murder, and between murder and manslaughter.  The references to unanimity in these
instructions were presumably added to convey the principle that the jury as a
whole may not return a verdict for a lesser included offense unless it first
reaches an acquittal on the charged greater offense.  [Citation.] 
But inserting this language into CALJIC Nos. 8.71 and 8.72, which
address the role of reasonable doubt in choosing between greater and lesser
homicide offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the
jury must unanimously agree to not guilty verdicts on the greater homicide
offenses before the jury as a whole may return verdicts on the lesser.”  (Moore,
supra, 51 Cal.4th at pp. 411-412.) 

            The Court
ruled, however, that it need not “decide . . . whether Gunder was correct that the possibility of confusion is
adequately dispelled by instruction with CALJIC No. 17.40”  (Moore,
supra, 51 Cal.4th at p. 412) because the jury’s findings demonstrated
any conceivable error was harmless: 
“[The jury returned] true findings on . . . burglary-murder and
robbery-murder special circumstances. 
Having found defendant killed [the victim] in the commission of robbery
and burglary, the jury must also have found him guilty of first degree murder
on those same felony-murder theories. 
The lesser offenses of second degree murder and manslaughter were not
legally available verdicts if defendant killed [the victim] in the commission
of burglary and robbery, as the jury unanimously determined he had.  Any confusion generated by the challenged
instructions, therefore, could not have affected the jury’s verdicts.”href="#_ftn4" name="_ftnref4" title="">[4]  (Id.
at p. 412.)

            After Moore was
decided, CALJIC Nos. 8.71 and 8.72 were amended to remove the potentially
confusing unanimity language.  The
current version of CALJIC No. 8.71 states: 
“If any juror is convinced beyond a reasonable doubt that the crime of
murder has been committed by a defendant, but has a reasonable doubt whether
the murder was of the first or of the second degree, that juror must give
defendant the benefit of that doubt and find that the murder is of the second
degree.”  The current version of CALJIC
No. 8.72 states:  “If any juror is
convinced beyond a reasonable doubt that the killing was unlawful, but that
juror has a reasonable doubt whether the crime is murder or manslaughter, that
juror must give the defendant the benefit of that doubt and find it to be
manslaughter rather than murder.”  >

c.      
Under
the circumstances of this case, it is not reasonably likely that the jurors
were confused by the 1996 versions of CALJIC Nos. 8.71 or 8.72

Villalobos contends that, in light
of the Supreme Court’s decision in Moore,
we should reject Gunder’s holding
that CALJIC No. 17.40 is sufficient to remedy potential juror confusion from
the 1996 version of CALJIC No. 8.71.  He
further asserts that we should reject Pescador
to the extent it held that CALJIC No. 8.50 is sufficient to remedy potential juror
confusion from the 1996 version of CALJIC No. 8.72. 

Moore,
however, contains no language endorsing or rejecting the holdings in >Gunder or Pescador.  The Supreme Court
merely summarized those two cases and acknowledged that the 1996 versions of
CALJIC Nos. 8.71 and 8.72 should be avoided because they “carry at least some
potential for confusing jurors.”  (>Moore, supra, 51 Cal.4th at p.
411.)  The Court did not decide whether
the instructions were “reasonably likely” to confuse jurors (>Dieguez, supra, 89 Cal.App.4th at p. 276
[proper test in assessing instructional error is “whether there is a
‘reasonable likelihood’ that the jury actually misconstrued the law”]) and
declined to decide whether the additional instructions identified in >Gunder and Pescador were sufficient to negate any such confusion.

As in Moore, given the specific facts of this case, we need not address
the holdings in Gunder or >Pescador.  We conclude that the trial court’s
instruction under CALJIC No. 8.75 (which was not directly addressed in >Gunder or Pescador), considered in conjunction with the jury’s findings,
demonstrate there is no reasonable likelihood that the jury was confused by
either 8.71 or 8.72. 

As discussed above, pursuant to
CALJIC No. 8.71, the trial court instructed the jury that it should return a
verdict of second degree murder if it unanimously found that the crime of
murder had been committed and unanimously found there was a reasonable doubt as
whether it was a murder of the first or second degree.  The instruction, however, contained no
language informing the jury what it should do if some, but not all, jurors
found a reasonable doubt as to whether murder was of the first or the second
degree.  Villalobos contends that this silence,
considered with the other language in the instruction, may have caused the jury
to believe that any disagreement as to the degree of murder should result in a
verdict of first degree murder. 

Villalobos’s argument overlooks the
fact that, under CALJIC No. 8.75, the jury was specifically instructed on the
very issue not addressed in No. 8.71: what the jury should do in the event it
could not reach unanimous agreement on the degree of murder.  The instruction stated, in part, that:  (1) if the jury unanimously found Villalobos
guilty of first degree murder, it should return the verdict form on that
charge; and (2) if the jurors could not unanimously agree on first degree
murder, they should inform the trial court of the disagreement.  We must assume that the jury understood and
followed this portion of CALJIC No. 8.75 (People
v. Rhodes (2005) 129 Cal.App.4th 1339, 1348 [“we assume jurors understand
and follow jury instructions”]), which does not conflict with any information
provided in CALJIC No. 8.71. 

The record, in turn, indicates that
the jury returned a unanimous verdict on first degree murder without ever
advising the court of any disagreement on the issue.  In light of the instruction under CALJIC No
8.75, we must assume the jurors did not disagree on the issue of first degree
murder.  Therefore, there is no
reasonable possibility that the jury was affected by the potentially confusing
aspect of CALJIC No. 8.71, which allegedly created the impression that jurors
should return a verdict of first degree murder in the event that they disagreed
as to whether the defendant committed first or second degree murder. 

The same
analysis applies to Villalobos’s argument regarding CALJIC No. 8.72, which
instructed the jury that if it unanimously found an unlawful killing had
occurred and unanimously found there was a reasonable doubt as to whether the
killing constituted murder or manslaughter, it was required to return a verdict
of manslaughter.  As with No. 8.71, the
instruction did not inform the jury what to do in the event it unanimously found
that an unlawful killing occurred, but disagreed as to whether it constituted
murder or manslaughter.  Under CALJIC No.
8.75, however, the jury was instructed to report any disagreement as to either
the degree of murder or the form of the unlawful killing (murder versus
manslaughter) to the court.  Because the
jury unanimously found Villalobos guilty of first degree murder without ever
reporting any disagreement, there is no likelihood that the jury had cause to
consider the allegedly confusing aspect of CALJIC No. 8.72 or that it had any
disagreement as to whether the unlawful killing was murder or
manslaughter. 

B.    
>The Trial Court Erred in Imposing a 10-Year
Sentence Enhancement Pursuant to Section 186.22, Subdivision (b)(1)(C)

Villalobos raises two issues
regarding the trial court’s decision to impose a consecutive ten-year term for
the gang enhancement under to section 186.22, subdivision (b)(1)(C).  First, Villalobos argues that, to the extent
substantial evidence supported the section 186.22 gang allegation, he should
have received the 15-year minimum parole eligibility term described in section
186.22, subdivision (b)(5), and not the 10-year prison term described in
subdivision (b)(1)(C).  Second, he
contends that the jury’s true finding on the section 186.22 allegation was not
supported by substantial evidence.

The Attorney General does not
dispute the first issue.  (>See People
v. Lopez (2005) 34 Cal.4th 1002 [defendant convicted of committing a
gang-related first degree murder punishable by a term of 25 years to life in
prison is subject to the minimum parole eligibility term described in
subdivision (b)(5), rather than the 10-year sentence enhancement described in
subdivision (b)(1)(C)].)  It does
dispute, however, whether substantial evidence supports the jury’s true finding
on the gang allegation.  To prove a
section 186.22 allegation, the People must establish, among other things, that
members of the gang either individually or collectively have engaged in a “pattern
of criminal gang activity” by committing two or more “predicate” offenses
enumerated in 186.22, subdivision (e) within a statutorily-defined time
period.  (§ 186.22, subd. (e); >People v. Hernandez (2004) 33 Cal.4th
1040, 1047.)  Villalobos asserts that the
prosecution failed to make that showing here. 


The People disagree, arguing that
it introduced evidence establishing that two DAF members–Robert Ramirez and
Santiago Nungaray–committed the predicate offense described in subdivision
(e)(5):  “Shooting at an inhabited
dwelling or occupied motor vehicle, as defined in Section 246.”  (§ 186.22, subd. (e)(5).)  Penal Code section 246, in turn, states: “Any
person who shall maliciously and willfully discharge a firearm at an inhabited
dwelling house, occupied building, occupied motor vehicle, occupied aircraft,
inhabited housecar . . . or inhabited camper . . . is guilty of a felony.”  As the Attorney General acknowledges, the
language of subdivision (e)(5) makes clear that not every violation of section
246 qualifies as a predicate offense for the purposes of the gang-enhancement
statute.  Rather, a section 246 violation
qualifies as a predicate offense only if it involved discharging a firearm at
an inhabited dwelling or occupied motor vehicle, rather than at an occupied
building, occupied aircraft, inhabited housecar or inhabited camper. 

            The parties
agree that the only evidence offered to establish that DAF members had engaged
in pattern of criminal activity
within the meaning of section 186.22 consisted of:  (1) two superior court minute orders
regarding Ramirez and Nungaray, and (2) testimony from Detective William
Pickett (the gang expert) related to those orders.         The
minute orders, which were introduced at trial as exhibits 17 and 18, state
that, on August 14, 2006, Ramirez and Nungaray were each charged with violating
Penal Code sections 246, 246.3 and 247, subdivision (b).  The minute orders further state that the
crimes occurred on August 9, 2006 and that, on November 20, 2006, each defendant
 pleaded no contest to a single count of violating section 246.  They provide no information as to the
specific conduct underlying the charges.

            At trial, the prosecutor asked Pickett to discuss the
content of the minute orders, beginning with the order related to Ramirez: 

PEOPLE:       Let’s
start with People’s 17.  This appears to
be a certified court                                               minute order for a case of
MA035889.  Do you see that?

 

PICKETT:      Yes.

 

PEOPLE:       And is the defendant for that case Robert Ramirez?

 

PICKETT:      Yes, it is.

 

PEOPLE:       Does it indicate that the crimes that he is charged with was
committed on or               about August
9th of 2006 in Los Angeles County?

 

PICKETT:      That’s correct.

 

PEOPLE:       And does it indicate that the counts that he’s charged with
are discharge of                               a
firearm?

 

PICKETT:      Discharge of a firearm at a resident, vehicle and occupied
dwelling.

 

PEOPLE:       Okay.  Now when this
crime was committed on or about August 9th of                                     2006, was Robert Ramirez a gang
member of D-A-F?

 

PICKETT:      Yes, he was.

 

PEOPLE:       How do you know that?

 

PICKETT:      He was the individual that was part of our caseload that I
worked cases on                                and
had contacts prior to.

 

PEOPLE:       And did he–and how do you know that he was a D-A-F member?

 

PICKETT:      He was in association and also self-admitted

 

PEOPLE:       When you say “self admit”, did he personally tell you or other
deputies that                 he was a
member of D-A-F?

 

PICKETT:      Yes. 

 

Pickett
provided similar testimony regarding the minute order related to Nungaray:

 

PEOPLE:       Ok.
On the same–I’m going to show you people’s 18 now.  This, again,                                     appears to be a certified court
minute order for the same case number,                                     MA0358889.  On here, there’s a person by the name of
Santiago                                               Nungaray;
is that correct?

 

PICKETT:      That is correct.

PEOPLE:       Okay. And, again, that’s for the same crimes:  shooting at an inhabited                          dwelling, shooting at a
vehicle as a negligent discharge; Is that correct?

 

PICKETT:      That is correct.

 

PEOPLE:       And
that was again on or about August 9th of 2006.

 

PICKETT:      That’s correct sir.  

 

PEOPLE:       And do you know that when these crimes were committed whether
the                          defendant,
Mr. Nungaray, was a member of D-A-F?

 

PICKETT:      Yes, he was.

 

PEOPLE:       How do you know that?

 

PICKETT:      I also had cases
I’ve investigated with him and know him personally.

Mr. Santiago
Nungaray was an active D-A-F gang member by the name

of―goes
by the gang name of Sleepy or Huero.

 

 

            Villalobos
argues that although this evidence was sufficient to show that two DAF members
violated section 246 within the statutorily-prescribed time period, it was not
sufficient to prove that they violated section 246 in a manner that would
qualify as a predicate offense under section 186.22, subdivision (e).  More specifically, Villalobos argues that
Pickett’s testimony did not show that Ramirez or Nungaray discharged a firearm
at an inhabited dwelling or occupied motor vehicle (which would qualify as a
predicate offense), rather than at a building, aircraft, housecar or camper
(which would not qualify as a predicate offense.)  Villalobos asserts that the transcript shows
Pickett was merely “questioned about what the minute orders reflected–not about
his personal knowledge of the crimes regarding which the minute orders show
guilty pleas.”

            The People,
however, contend that Pickett’s testimony does qualify as substantial evidence
that Ramirez and Nungaray committed predicate offenses, arguing: “Detective
Pickett testified that Ramirez was charged with and committed ‘[>d]ischarge
of firearm at a residence, vehicle, and occupied dwelling,’ that Nungaray
was charged with and committed the same crimes, ‘shooting at an inhabited dwelling, shooting at a vehicle as a negligent
discharge.’  Moreover, Pickett
testified that he personally knew Ramirez and Nungaray, that both were members
of DAF, that Ramirez was part of his caseload, and that he had investigated
Nungaray.”  (Emphasis in original). 

            Based on
the trial transcript, the only reasonable interpretation of Pickett’s statement
“Discharge of a firearm at a resident, vehicle and occupied dwelling” is that
he was providing an informal description of the information provided in the
minute orders, rather than relaying personal knowledge about the specific
conduct underlying Ramirez and Nungaray’s no contest pleas.  After asking several questions about the
content of the minute orders, the prosecutor asked Pickett whether those orders
“indicate[d]” that Ramirez and Nungaray had been charged with discharging a
firearm.  Pickett did not give any
indication that his response was intended to go beyond the question asked by
the prosecutor (i.e., what the minute orders indicated) or that he had any
personal knowledge of the conduct underlying the violations listed in the
minute orders. 

            The
transcript also demonstrates that the prosecution only asked Pickett what the
minute orders indicated Ramirez and Nungaray had been “charged with”; the
prosecutor did not ask Pickett what crimes Ramirez or Nungaray had been
convicted of nor did he ask Pickett whether he had any personal knowledge as to
whether they had committed the conduct alleged in the information.  Thus, the only evidence regarding what
conduct Ramirez and Nungaray actually committed is in the minute orders
themselves, which states nothing other than that the defendants pleaded no
contest to a violation of section 246. 

            The
additional evidence the Attorney General cites relates to statements Pickett
made when explaining how he knew Ramirez and Nungaray were members of DAF.  Pickett said he knew Ramirez was in DAF
because he was “part of [the] caseload that [Pickett] worked cases on” and that
he knew Nungaray was in DAF because he knew him “personally” and had “cases
[he] had investigated with [Nungaray].” 
These statements do not show that Ramirez or Nungaray committed a
predicate offense within the statutorily-defined period.

            Because
there is no substantial evidence supporting the jury’s true finding on the
section 186.22 gang enhancement allegation, we reverse and remand for further
proceedings on that issue.  On remand,
the prosecution may, at its discretion, elect to retry the section 186.22 gang
enhancement.href="#_ftn5" name="_ftnref5"
title="">[5]>

 

DISPOSITION

The trial court’s judgment is
reversed and the matter is remanded for further proceedings consistent with
this opinion.

 

 

                                                                                    ZELON,
J.

We concur:

 

 

 

            PERLUSS, P.
J.

 

 

WOODS, J.