P. v. Elizalde
Filed 11/19/13 P. v. Elizalde CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GAMALIEL
ELIZALDE, et al.,
Defendants and Appellants.
A132071
(Contra
Costa County
Super. Ct. No. 050809038)
INTRODUCTION
This
case involves four victims: Antonio
Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the
second degree murder of McIntosh and
the jury found true enhancements for participating in a criminal street gang
and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and
Elizalde
of the first degree murder of Centron, Perez and McIntosh and came back with an
acquittal as to Lisa Thayer. The jury also
found Mota and Elizalde guilty of conspiracy to commit murder, participating in
a criminal street gang and found true enhancements for participating in a
for intentionally discharging a firearm causing great bodily injury or
death. Elizalde was also found guilty of
dissuading a witness by force or threat of force.
On
appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct
the jury that an unforeseeable supervening cause might have caused Rico
McIntosh’s death (Elizalde and Mota join in this argument); (2) the trial court
did not properly answer the jury’s questions regarding the elements of second
degree murder (Elizalde joins in this argument); (3) the trial court erred in
permitting testimony regarding threats to witnesses (Elizalde and Mota join in
this argument); and (4) the trial court erred when it failed to instruct the
jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde
and Mota join in this argument).
Mota
argues that the trial court erred when it (1) found that there was no prima
facie case of discrimination with
regard to an African-American prospective juror (Gomez and Elizalde join in
this argument); (2) gave the jury the task of determining whether four
witnesses were accomplices (Gomez and Elizalde join in this argument); (3)
admitted into evidence a statement Mota made during booking regarding his gang
affiliation (Gomez and Elizalde join in this argument); (4) instructed the jury
not to speculate about why unjoined perpetrators were not tried in the same
trial (Gomez and Elizalde join in this argument); and (5) admitted evidence
that Mota attacked Jorge Sanchez in jail (Gomez and Elizalde join in this
argument). He also argues that (6) during
his rebuttal to the defense’s closing argument, the prosecutor committed
misconduct (Gomez and Elizalde join in this argument); and (7) there was cumulative
error.
Elizalde
contends on appeal that (1) there is not substantial evidence to support the
jury’s conspiracy finding (Gomez and Mota join in this argument); (2) the trial
court failed in admitting phone calls between Hector Molina and his mother under
the co-conspirator exception to the hearsay rule (Gomez and Mota join in this
argument); (3) trial counsel was ineffective for failing to seek redaction of a
statement Elizalde made to Molina’s mother during one of these jail calls; (4)
the trial court erred when it instructed the jury, pursuant to CALJIC No. 3.13,
that the required corroboration of the testimony of an accomplice may not be
supplied by the testimony of any other accomplice (Gomez and Mota join in this
argument); (5) the trial court erred when it admitted evidence that Elizalde
possessed methamphetamine for sale to prove a predicate offense for the gang
charge and enhancements (Gomez and Mota join in this argument); (6) counsel was
ineffective for failing to object to other crimes evidence regarding the
conspiracy to commit murders (Gomez and Mota join in this argument); and (7)
there was cumulative error.
With
the exception of the admission of Mota’s un-Mirandized
jail, an error that was not prejudicial, we find no other error and affirm the
judgments.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Murders
Defendants
Mota and Elizalde were convicted of three murders that occurred over a four-month
period between December 22, 2007, and April 25, 2008. Gomez was convicted of one of the three, that
of Rico McIntosh. The most significant testimony
regarding these murders came from fellow gang members and/or friends, Jorge
Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez
(McIntosh murder), and Larry Valencia (Perez murder).
Jorge
Sanchez testified that in exchange for his testimony he pled to accessory after
the fact to murder, and received a three-year suspended sentence. Sanchez, who was not in the country legally,
also had a “parole in place†arrangement with Immigration and Customs
Enforcement and, as a result, wore an ankle bracelet monitor. Sanchez testified that he was a member of
Varrio Frontero Loco
name="_ftnref3" title="">[3], a
subset of the Sureño gang, which is active in Contra Costa County.
The
evening of December 22, 2007, Francisco Romero , who was also a Varrio Frontero
Loco, gathered together a number of people and went to North Richmond.
supposedly he was going to put a meeting to go up there, just fight them [the
Richmond Sur Trace members].†After
speaking to Romero, Elizalde came to North Richmond. Elizalde then tried to call a Richmond Sur
Trace member in order to arrange a fight but was not able to reach anyone.
After
the failed effort to engage the Richmond Sur Trace, Sanchez, Romero and Molina eventually
drove to the Broadway area of San Pablo, which was known to be Norteño
territory. Sanchez understood that if
they found Norteños there they would beat them up or shoot them. He understood this “was part of the deal of
being a . . . [Varrio Frontero Loco] Sureño at this time.â€
That
same evening, the victim, Antonio Centron, along with two friends, Neil Wixson
and Adrian Espinoza, attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of
hours and then walked down Lake Street, toward 19th Street to buy beer. This area of San Pablo was a stronghold of
the Norteño gang. Wixson and Centron
wore red shirts, a color associated with Norteños. Centron walked a little ahead of his
friends.
Romero
drove by Centron, Wixson and Espinoza. Molina,
who was in the right front passenger seat, told Romero he knew one of the three
men. Molina pulled out a handgun and directed
Romero to park down the next street. Romero
parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson
and Espinoza to come to the corner. When
they did, Molina told them he was “VFL†and emptied his gun in their direction.
His first shot hit Centron in the head.
Centron died almost immediately. Nine
more shots hit Espinoza in the back.
Molina’s final shot hit Wixon in the arm. Espinoza, who was still conscious (and
ultimately survived his injuries) called 911.
After
killing and wounding the men he believed were rival gang members, Molina ran
back to the car and they sped off. In
the car, Molina was jumpy and excited. According
to Sanchez, Molina said “to watch the newspaper. That’s—that was going to be his trophy.†A newspaper article about a killing was “[l]ike
a signature that you did it.†The
killing would give Molina “more respect†in the gang. Molina called Elizalde to tell him what he’d
done. Elizalde arrived “and just started
telling him just be quiet, stop, you know, screaming and just lay low.â€
The
next day, the police detained and searched Molina. They found in his possession a .45 caliber
chrome Colt semiautomatic handgun, a blue bandana, and a blue baseball
hat. The police arrested him and charged
him with possession of a concealed firearm.
Molina was released from jail four days later.
Victor
Cervantes testified that right after Molina got out of jail, he called
Cervantes and asked for a ride home.
Molina told him that he’d killed one man and another was in a coma. He also told Cervantes that he’d been with
Francisco Romero when he’d killed the man.
Cervantes asked him how he got out of jail when he’d been caught with a
gun. Molina told him that he got caught
with a different gun than the one used in the killing and, as a result, he had
gotten away with murder.
In
an interview with the police, Luis Ruelas testified that Molina admitted to him
that he was in the car with Romero and Sanchez that evening and that Molina said
he had shot at three men and killed one of them.
Defendants
Elizalde and Mota were found guilty of Centron’s murder as co-conspirators.
2. Luis
Perez Murder
Larry Valencia was
one of the prosecution’s main witnesses with regard to the murder of Luis
Perez. Valencia had not made a plea bargain
with the District Attorney’s office, nor was he receiving any witness
protection or money from the District Attorney’s office.
Valencia
testified that late on the night of February 16, 2008, he decided to visit
friends in North Richmond. After an
evening of drinking beer, smoking marijuana and taking Ecstasy someone said,
“[l]et’s jump for a ride. Let’s go find
some females to party.†Hector Molina,
Jorge Camacho, and Jose Mota got into Mota’s black, two-door Kia. Molina sat in the driver’s seat, with Jorge
Camacho next to him in the passenger seat and Mota in the back. Cole Azamar and Luii Hernandez got into
Azamar’s car, with Azamar driving and Hernandez sitting in the passenger
seat. All five men were members of
Varrio Frontero Loco. They encouraged
Larry Valencia (who testified that he was not a gang member) to join them and
he got into the back seat of Azamar’s car.
After the two cars drove around for a while, with Azamar following Molina,
they arrived in San Pablo. Valencia was
aware that this was Norteño territory.
Molina
stopped the car and Valencia saw the people in Mota’s car arguing with a man in
a red jacket—the victim, Luis Perez—who was standing next to the car. He saw Camacho get out of the car and say to
the man, “[s]how me your hands, show me your hands.†The man yelled “[w]hat the fuck is going on?†Valencia heard three loud shots and saw
Camacho shoot the man three or four times.
In fact, Camacho hit Perez seven times: two bullets to the abdomen, two to the back
and three to the back of his arms. The
bullets passed through Perez’s lungs, heart and liver. Perez died en route to John Muir Hospital in
Walnut Creek.
Camacho
got back into the car with Molina and Mota and Molina drove away. Valencia had never seen anyone killed before.
Valencia told Azamar to take him back to
his car so he could go home.
Mota
was found guilty of Perez’s murder on an aider and abettor theory. Elizalde was found guilty as a co-conspirator.
The third victim,
Lisa Thayer, died when Jorge Camacho, a member of Varrio Frontero Loco,
exchanged shots with several unidentified men in a Toyota minivan.
This
altercation began late in the afternoon of February 27, 2008. Camacho and his friend Antonio Solomon, were
walking on San Pablo Avenue in San Pablo.
hat. In that area, that kind of hat was
understood to stand for “Young Narfer,†a reference to North Richmond, which
was Sureño territory.
A
burgundy Toyota minivan with a Hispanic driver and front seat passenger and
African-American passenger in the back seat passed Solomon and Camacho. Solomon and Camacho ran.
The
men in the minivan chased them.
Eventually, the minivan pulled up behind Solomon and Camacho. The side door opened, revealing that the back
seat passenger had a gun. Camacho shot
at the van with the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The man in the van also fired a .40 caliber
semiautomatic handgun several times.
Lisa
Thayer, who was walking on San Pablo about half a block from the shooting, was
hit by a bullet. The bullet hit her in
the back, went through her right lung and came out at her chest. Thayer died soon afterwards.
Solomon
and Camacho ran from the scene with the van following them. Someone in the van fired several more shots
at them. Soloman and Camacho climbed a
fence and ran to the apartment of a friend—Ignacio Mendoza. When Mendoza’s mother told them to leave,
Camacho gave his gun to Mendoza and left with Solomon. The police arrived nearby, a witness pointed
them out and they were arrested. Camacho
had a blue bandana in his pocket.
The
jury found defendants Mota and Elizalde not guilty of Thayer’s murder.
The fourth
shooting occurred in the early morning hours of April 26, 2008. Oscar Menendez, who was present at the
shooting, testified that he had pleaded to accessory to the murder of McIntosh with
a gang enhancement. He was given three
years probation. As a condition of his
plea, he agreed to testify in court. At
the time he testified he was in “parole in place,†which meant he wore an ankle
monitor required by Immigrations, Customs and Enforcement. The People were assisting him in obtaining a
work permit. Menendez had not violated
any of the terms of his probation or the terms and conditions imposed by
Immigration, Customs and Enforcement. He
did not receive any money from the District Attorney’s office.
Menendez
testified that he had known Mota for several years. Mota was a member of Varrio Frontero Loco. Menendez also knew Javier Gomez. The three of them hung out together and “sometimes
we used to get in the car and just cruise around.†Gomez belonged to a Sureño subset called
Mexican Loco.
title="">[7] Menendez had been at parties where members of
the two Sureño subsets would brag “about crimes they have done during the week
or, you know, any stuff that they doing, you know, like beating somebody up or
robbing people or whatever crimes they do, they used to brag about all of the
time.†Six months before the McIntosh
murder, Menendez became a Sureño.
Menendez
described an incident that occurred about a week and a half before the McIntosh
murder. He, Gomez and Mota went to visit
Gomez’s cousin who lived in Montalvin, which was Norteño territory. Mota drove his Kia, and Gomez sat in the
front passenger seat. Menendez sat in
the back. The cousin wasn’t home, so
they turned around to return to Richmond.
As they did so, Gomez and Mota saw a man wearing red who was fixing his
car. Mota and Gomez “said he was a
Buster. He was wearing red . . . .â€
Menendez didn’t agree and when he saw
that Gomez and Mota had a gun
name="_ftnref8" title="">[8] in
the front seat he told them to drop the gun.
Menendez tried to grab the gun and in the ensuing scuffle, someone shot
Menendez in the leg.
Menendez
was bleeding heavily, so Mota and Gomez took him to the hospital. The police questioned Menendez and he lied
and told them that they had been jumped and he had been shot in the leg because
he told his assailants that he didn’t have any money.
Several
weeks later, Gomez and Mota pulled up to where Menendez was hanging out with
some friends and “they were calling me, right, and I went to the car and they
say get in the car. I was like where are
you guys going? They said don’t trip.†As on the other occasion, Mota was driving
and Gomez was in the front passenger seat. Menendez asked if his friend could go too, and
Mota told him he couldn’t. Menendez got
in the car and they decided to go to a McDonald’s on San Pablo near
Broadway. Instead of turning right into
the McDonald’s, however, Mota turned left onto Broadway. Menendez asked Mota were he was going and he
said “don’t trip.†Mota kept
driving. At this point, they were
driving into Norteño territory and Menendez thought “they were looking for some
Norteños . . . or they were trying to do something again.â€
Gomez
spotted three men wearing red at a stop sign.
Mota stopped the car and asked the men if they were “busters.†The men said they weren't, and Menendez
recognized one of them and told Mota that “they don’t bang . . . .†Mota drove away but “he kept on mugging
them.â€
Mota
then spotted Rico McIntosh, who looked, to Menendez, like he was wearing a red
bandana and had some “red on his pants, too.â€
Mota and Gomez thought he looked like a Norteño. They pulled alongside McIntosh and Gomez
asked him “if he is a buster.†McIntosh
said “what the fuck is a buster?†Menendez
thought he heard Mota say “pull it out.â€
He then saw Gomez reach down toward his leg. McIntosh made a gesture as though to reach for
something and Menendez thought it was a gun.
Gomez began to fire the gun out of the window of the car. Menendez heard four or five shots. McIntosh fell and Mota and Gomez began to
laugh. Menendez told them it wasn't
funny and they told him he was a “pussy.â€
Menendez said he wanted to go home.
“I told them what they just did, it was wrong because I never seen
somebody kill another person like that.â€
Mota
and Gomez “seemed pretty happy, like they just won the lottery or
something. They were really excited
about it.†Mota and Gomez wanted to
celebrate, but Menendez asked to go home.
On the way, Mota and Gomez talked and said, “Oh, you know, what the homies
are going to say when they find out, or was he good, was he bad, you know they
were saying that it was like, you know, it was like perfect. Perfect is no one sees them. [¶] No
one seen us when we were there. When
that happened there was no people at all, just that guy.â€
When
they arrived at Menendez’s house, Mota left the gun with Menendez. He told Menendez that he was on parole and
couldn’t have it.
A
week or so later, Menendez went to a party with members of Varrio Frontero Loco
and Mexican Loco. At the party, Gomez “started
talking about it.†Ruelas was also
present, along with a number of other Varrio Frontero Loco and Mexican Loco. Mota was also there.
Gomez
confessed to the McIntosh murder. He
told the police that Mota picked him up the night of the murder and the two of
them went to look for Norteños. Mota
gave him the gun he used to shoot Rico McIntosh. Mota’s job was to drive until he saw a Norteño
and then stop. Gomez didn’t plan to
shoot anyone who wasn’t a Norteño. After
driving around for a while Mota and Gomez picked up Menendez. Menendez sat in the back seat. They continued to look for Norteños, slowing
down to look and then ruling out a number of groups of people who were out that
night. Eventually, either Mota or Menendez
spotted McIntosh, who was walking down the street. Mota told him that McIntosh had some red
on. Gomez “asked him, are you a
Buster? And he said, what the fuck is a
buster? He, he had a hoodie. Then he like, he pulled the hoodie down as if
he wanted to do something, so I just shot him.â€
He shot McIntosh until there were no bullets left in his gun.
After
the shooting they went to a store and bought some beer and drank it at the
cemetery. He gave the gun to
Menendez. Menendez saw the whole thing
from the backseat.
McIntosh
was hit in the hip and buttocks. He was
taken to John Muir Hospital and released on April 28, 2008. The next day, McIntosh collapsed and died after
blood clots caused by the gunshot wounds traveled to his lungs.
Gomez
was convicted of second degree murder. Mota
was convicted of first degree murder as an aider and abettor and Elizalde was
convicted as a co-conspirator.
B. Conspiracy and Gang Evidence
Several
witnesses testified to a conspiracy on the part of Mota and Elizalde to commit
murders of rival Norteño gang members in order to restore the reputation and
fortunes of the Varrio Frontero Loco.
1.
Jorge
Sanchez was a member of Varrio Frontero Loco.
the gang. Sanchez’s brother was a member
of the Mexican Loco, another Sureño gang, and he joined the Varrio Frontero Loco
because he wanted his own “name.†He was
“jumped in†to Varrio Frontero Loco, through a process he described as “[j]ust
imagine three guys beating on one person, kicking him, beating him, just
thumping on him†for 13 seconds. He had
also helped jump people into the gang.
Sanchez showed the jury a number of tattoos that signified his
membership in Varrio Frontero Loco. Gang
tattoos were important so people “won’t mess with us.â€
A
Sureño who wanted to prove himself would “[j]ust go to the streets. Beat up any Norteño you can think of to start
with. . . . [¶] Just you earn respect and your
stripes. Start shooting or just doing
whatever you want.†You would do this
with other people “[t]o make sure you do it.
Just to make sure you ain’t lying about what you did.†When Sanchez went out to attack Norteños, he
would take fellow Varrio Frontero Loco with him. He would do that for “backup.†He would also do it to “make sure they do it,
too. Make sure they look at you.â€
Sanchez
understood that at the time of trial, Mota and Elizalde had “green lightedâ€
him; that is, they had ordered him killed for talking to the police. Green lighting did not occur until the actual
text of a statement made to the police was distributed “to the streets,â€
generally through a defendant who received the statement from his lawyer.
Sureños
were enemies with Norteños because they were “mixed peopleâ€: “part Mexican . . . they mix
with Mexican black, Mexican white.†You
could tell who they were by “[t]he hair, the clothes, the grill that is like
the gold teeth they wear. [¶] And if
they got tattoos you look at tattoos, belts.â€
In particular, Norteños had long hair, “all of the new clothes the black
people be coming out with,†and wore the color red, including red belts. Sureños identified themselves with blue
bandanas and blue belts.
Sanchez
was familiar with a number of Norteño sub-gangs including West Side Berkeley,
Montalvin, Varrio San Pablo. Each of
them claimed a particular area. Varrio San
Pablo claimed the area near Broadway and the Hilltop Mall.
As
a Sureño, when he saw a Norteño he was supposed to “[t]ake off, just don’t even
think about it, just hit them up. . . . Just whoop his ass.â€
Varrio
Frontero Loco used violence to scare “[j]ust the people, Norteños whoever—everybody,
the blacks, the whites, the Asians.â€
They did so “[j]ust so they won’t mess with us. . . .
[P]eople be picking on people. Sometimes
people just look for a way out. And just
make sure they scared of you instead of you being scared of them.â€
Fame
mattered because it was a way of “representing my hood,†“[j]ust to let people
know . . . where you are from.â€
You did that by “doing a lot of things, shooting, selling drugs, getting
money, cars, just whoop—whooping people in front of other people.†A Varrio Frontero Loco would “throw it up†by
telling someone who they were, just make sure they know it. Being feared by rival gang members was a good
thing—“[y]ou can be walking the streets with no one, no one is trying to hit
you up or something.â€
Gang
members would get together and brag about what they had done in order to let
people know that “if they mess with you they will get the same . . .
treatment.†He would also get together
with other Varrio Frontero Loco and plan future crimes “to get respect or to
make people afraid.â€
With
regard to non-gang members, it was important to “let them know that . . .
we don’t mess with you and you just don’t mess with us.â€
Drug
sales were a part of being a Varrio Frontero Loco. Sanchez “wasn’t into that,†but he had seen
fellow gang member Gamaliel Elizalde selling drugs out of his backyard. He would sometimes give drugs to Mota to sell
and Mota would brag about it. The drug
sales were run out of Elizalde’s house.
Varrio
Frontero Loco held meetings to “check in with each other, to make sure what was
going on with each other and just what kind of problems, like people got problems
with someone, different rivals or with a Norteño or something.†Sometimes the members would put money
together for people in jail to use for “hygienes like toothpaste, soap, shampoo . . . .†Elizalde was in charge of putting money “on
the books†for the Varrio Frontero Loco members who were in jail. The meetings were not held often. Sometimes the meetings would take place at Victor
Valencia’s house and sometimes at Elizalde’s house.
Occasionally, he and other members
would “check,†or beat up, a member who was not “putting in work or he ain’t
kicking it with us a lot . . . .â€
At
the time Sanchez joined Varrio Frontero Loco in 2005 or 2006, it was led by a
number of men, including Gamaliel Elizalde.
Elizalde was an “OGâ€
name="_ftnref11" title="">[11]
or leader, “the one you look up to. . . . The one[] that you go
ask for advice.†One of the benefits of
being a leader was that he “get to kickback or just don’t do a lot of things no
more.†A leader would not “fight
somebody or put a lot of work in the streets, shooting, whatever, just get to
just relax and let the other generation do their work.â€
A
leader would have money from “things going on on the side . . . .
[¶] . . . like they were selling drugs . . . .†The leaders would use the “pee wees†or
younger members “to distribute it. . . .â€
In
2007, there were several subsets of Sureños with whom Sanchez was
familiar: his own gang, Varrio Frontero
Loco, another gang called Mexican Loco and a third called Richmond Sur Trece. Although they were all Sureños, they did not
always get along. In 2007, a Varrio
Frontero Loco leader called “Toby†shot a member of a Richmond Sur Trece and
fled, along with his brothers, to avoid being killed in retaliation for
murdering a fellow Sureño. This left a
void in the leadership of Varrio Frontero Loco, which was filled by
Elizalde. As Sanchez put it, after Toby
fled, “everybody was just going to Gama, so that's the only one who we look up
to and who was there with us.â€
Nevertheless, after Elizalde took over, Varrio Frontero Loco began to
dissolve. “[E]verybody just try to take
it their own way. It was—just
disappeared. Some of them went to some
other towns. People got scared because
they got shot at, who was getting stomped on.â€
At this point, Varrio Frontero Loco were “getting hurt†and “things were
bad.â€
Sanchez
testified that “we just had to get it back together.†He and others referred to this as “bring[ing]
the hood back.†To do this, it was
necessary to “recruit[] new people and try to do more damage to the Norteños,
to the streets.†All of the Varrio
Frontero Loco wanted to bring the hood back, including Elizalde. In terms of the hierarchy of Varrio Frontero
Loco, Elizalde was the leader, and Sanchez was directly under him along with
Mota, Ruelas, and several others.
Elizalde
told the Varrio Frontero Loco that they had to “put in more work,†“go to the
streets, ride around the streets,†“[m]ake sure they [the Norteños and
everybody] know we around, we ain’t gone.â€
They would do this by “hit[ting] the streets, ride around, especially in
Norteño territory.†Sanchez explained
that this was effective because the Norteños “don’t expect us to go. They think we going to be scared. They think we going to just lay back. And we go there and they go, oh, man, they
coming back and they coming back hard.â€
In Norteño territory, [i]f you see them just shoot them or whoop them, whatever
you got. If you don’t got no gun you just
get out and do what you got.â€
Sanchez
discussed this plan with all the Varrio Frontero Loco, including Mota. He didn’t talk to Elizalde about why he
wanted to bring the hood back; he only knew that Elizalde “wanted it done.â€
According
to Sanchez, he and Mota, along with Luis Ruelas, Luii Hernandez, and Cole
Azamar were “the ones who was going to bring them back . . . just
the ones who got to take care of everything.â€
They covered different parts of Richmond. In addition to attacking Norteños, they also
recruited and “guided†“pee wees.†Elizalde
wanted them to “get into the high schools and expand the Sureños and hurt the Norteños.â€
Shortly
before Sanchez was arrested, Mota came to his house. He was nervous because the police had been to
his house. Mota told him that he [Mota] “went
in the shootout.†He also spoke to Jorge
Camacho who told him that he “shot a lady.â€
2. Oscar
Menendez
Oscar
Menendez testified that at the time of the Rico McIntosh murder, he “was
undecided†about being a Varrio Frontero Loco.
He “didn’t want it for my future . . . it was just fine
being with them, you know, being with girls and having parties, but I didn’t
like the rest that they used to do.†He
had a lot of Sureño mentions on his MySpace page, and he liked being around the
gang because it “was fun because they always used to hang around with a lot of
girls and they always used to have parties every weekend and, you know, beers
and music.â€
He
was aware that gang members “hunted and attacked Norteños.†However, no one ever “told me to do it.†He was never “jumped in.†He associated with the Varrio Frontero Loco
for six or seven months beginning in November 2007 until his arrest about a
week after the McIntosh murder.
It
was typical for gang members to brag about their crimes. He explained, “they say that’s what they get
respect because when they—when the rest of the guys knew what you were doing
they will respect you more than what they do.â€
This was a “big deal†to the Varrio Frontero Loco.
The
Norteños were the Varrio Frontero Loco’s rivals. Menendez knew what areas were Norteño territory. He also knew that if a Varrio Frontero Loco
found a Norteño or saw one he was to “beat him up and if you have a gun you
have to use it.†That is because the
Varrio Frontero Loco “wanted to get rid of Norteños.â€
He
knew both Javier Gomez and Victor Cervantes, both of whom were members of the Sureño
gang, Mexican Loco. When he associated
with these gangs he knew they got along “but not that much†at first.
According
to Menendez, Varrio Frontero Loco “wasn’t that much organized.†He “never knew who was the shot-caller . . . .†He was aware that the members “used to
receive orders from some older guys . . . .†When he asked what they were doing, the
members would say “don’t trip . . . that’s something that I got
to do and that’s it.†In his own mind,
he thought that Elizalde was the shot-caller because he once heard him giving
orders to someone. At one point,
Elizalde told Menendez that “in order to be a Sureño you have to get down, you
now, don’t have to be a fear of anybody, if you see a Norteño on the street you
have to put him on check, beat him up or anything that is in your hands to get
him away from Richmond, and to don’t let them come to Richmond, let them stay
in San Pablo.†Specifically Elizalde
told him that if he saw a Norteño he was to beat him up and if he had a gun to
use it. Elizalde once told him that in
order to be a Sureño he had to “stick with them all the time and commit sort of
a crime that he used to commit—I had to do the crime that they used to do in
the week and stick around with them and, you know, do whatever they—they were
doing during the week.†This would
include “[s]tealing cars and robbing people, shooting Norteños, beat them up.†Mota told him the same thing. He also told him that he had to “earn†a
Varrio Frontero Loco tattoo by doing something “big†like kill a Norteño.
On
three occasions, he heard Elizalde instruct someone to beat up a Norteño or to
look for him. He also heard Elizalde say that Richmond was Sureño territory.
Menendez
named a number of Varrio Frontero Loco as those with the most respect in the
gang. They were Molina, Azamar, Camacho,
Ruelas and Sanchez. He also knew Larry
Valencia, who he didn’t think was a gang member.
He
felt that he had to do what Elizalde told him to do. He did not, however, think that he had to
hunt Norteños in San Pablo. When he went
with Mota and Javier Gomez on April 13, 2008, which was the day he shot himself
by accident, he did not know that they were looking for Norteños to kill. Nor did he think that was the case on April
26, 2008. He did not realize that they
were looking for Norteños to kill until the car did not turn toward the
McDonald’s on Broadway as he had expected.
In
jail, Menendez received a message on the module where he was housed from the Sureño
shot caller. The message laid out in
detail how he was to behave while incarcerated.
Among other things, he was to contribute money to buy food and supplies
for other Sureños, he was not to speak to the police, he was to follow orders
from the shot caller and if he was asked, he was to beat people up the shot
caller told him to attack. He was also
required to give the shot caller a copy of the police report on his arrest as
well as any other legal materials in order to permit the shot caller to determine
whether he was a snitch. Menendez
refused to give these materials to the shot caller and, several days later, he
was beat up by several Sureños. He
entered protective custody afterwards.
Ruelas
Luis
Ruelas testified that he was a member of Varrio Frontero Loco for six years until
2008. He was 14 or 15 when he was jumped
into the gang. Jose Valencia brought him
into the gang.
Ruelas’s
testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the grand jury
that he had “earned†a tattoo that said “Chap Killa†on his arm. He worked his way up from the bottom of the
gang by earning “respect†through shooting and beating up Norteños. Norteños were identified by the color red,
while Sureños wore the color blue.
Ruelas became close to one of the top people in Varrio Frontero Loco at
the time, Victor Valencia. Valencia had
secured their territory by running out another gang that had previously been
there.
Ruelas
was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde “was the main—was
the kingpin at that time, but everything else was a mess on the streets.†Elizalde was “moving all the drugs.†With Victor Valencia gone, “[h]e took over all
our stuff.†Ruelas did not like Elizalde. Elizalde gave orders to kill people,
including one occasion when Elizalde told Ruelas to “kill somebody because they
popped his tires.†He didn’t do it
because at the time he was working as an informant with the San Pablo
police. As part of his deal with the
police, he promised not to participate in the commission of any crimes. Elizalde also would send Ruelas out to collect
debts using violence.
On
one occasion, before he returned to Richmond, Ruelas spoke to Hector Molina,
who told him “We miss you . . . . We bringing the hood back.†According to Ruelas, “the whole part of being
a Sureño†was to “assault or kill Norteños.â€
Ruelas’s
testimony at an earlier gang prosecution was also admitted into evidence. At that time, Ruelas testified that violence was
an important part of bringing the hood back “[b]ecause if . . .
you don’t have people be scared of you, they ain’t going to respect you. They going to be like, you know,
whatever. As long as you show them you
really about it, they will think about it twice before they come at you.†Violence also helped recruit new members who
“seen what we were doing and they knew we had money. We had girls, we had everything. And they wanted it, too, so they started
joining in.â€
At
trial, Ruelas was reluctant to testify because of threats to his family. In general, he either outright denied or
claimed to forget testimony he had earlier given about Varrio Frontero
Loco. At trial, he testified that Varrio
Frontero Loco did not have a structure in which there was a shot caller. Instead, there were people he looked up to,
including Victor Valencia. Ruelas also had
respect for Elizalde because he was his elder.
Ruelas
showed the jury tattoos on his forearms that said “Chap Killa.†A Chap, he explained, is a Norteño gang
member. He had done a lot of crimes to
earn the tattoo.
One
of the rules of being a Sureño “is just you got to represent yourself the right
way.†To do that, you had to have
respect, which you earned through loyalty.
If a Varrio Frontero Loco saw a Norteño he was expected to get into a
fight with the Norteño. He would
sometimes go out and look for Norteños to find.
The Broadway area in San Pablo was one place the Norteños hung out.
He
knew Elizalde because they “used to kick it outside his house.†Elizalde was a Varrio Frontero Loco. He was older and “some guys came up to him
for advice.†Although he had earlier
told the police that Elizalde was “running the streets,†he had done so because
“I was just trying to save my life from being prosecuted, but it was—what I
said was wrong . . . .â€
In general, he retracted a number of statements he made earlier in which
he had identified Elizalde as the person who had taken over drug sales, the
person to whom he would go if he needed a gun quickly, and as having a list of
people that needed to be hit. He also
did not remember telling the police that Mota brought a pound of
methamphetamine to his house along with a gun and said he was going on a drug deal.
D. The Verdicts
The
Gomez jury deliberated for three days and came back with a second degree murder
verdict with regard to Rico McIntosh. It
found the firearm and gang enhancements true.
The trial court sentenced Gomez to an aggregate term of 40 years to life
in prison.
After
four days of deliberation, the Mota/Elizalde jury brought back guilty verdicts
on three murder counts and an acquittal with regard to the death of Lisa
Thayer. It also found Mota and Elizalde
guilty of conspiracy to commit murder, participating in a criminal street gang
and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an
enhancement for intentionally discharging a firearm causing great bodily injury
or death. Elizalde was also found guilty
of dissuading a witness by force or threat of force. The court sentenced Mota to an aggregate term
of 100 years to life. It sentenced
Elizalde to an aggregate term of 103 years to life.
This
timely appeal followed.
III. DISCUSSION
Rico
McIntosh’s death was caused by a pulmonary embolism 72 hours after he was shot
and a day after he was released from the hospital. Gomez argues that the trial court erred
because it failed to instruct the jury, sua sponte, that they were required to
determine whether actions other than Gomez's—in particular, the decision of his
doctors to release him from the hospital—constituted an unforeseeable
supervening case. He also contends that
the instructions the court gave were inadequate. We disagree.
a. Factual
Background
McIntosh
died at around noon on April 29, 2008, after having been released from John
Muir Hospital the morning before. Dr. Ikechi
Ogan performed McIntosh’s autopsy. Ogan
examined two bullet wounds; one was located on McIntosh’s right thigh and the
other on his left hip. Neither was fired
from close range. McIntosh had large
hematomas on his thigh and hip where he had been shot. A large blood clot was blocking both of
McIntosh’s lungs. Ogan determined that
this blood clot, which totally blocked the flow of blood, made it impossible
for McIntosh to breathe and was the cause of his death. The clot was caused by “complications of the
gunshot wound to [McIntosh’s] pelvic region†and was the cause of his death.
Ogan
testified that in general a doctor would know that blood clots are “very likely
when you have injury to the lower body and pelvis.†The trial court sustained an objection to defendant’s
question about whether the doctors at John Muir should have “kept an eye onâ€
McIntosh. Ogan testified that McIntosh’s
follow-up care at John Muir was not relevant to his determination of the cause
of death: “I have no desire to comment
on . . . why he was released.
[¶] My job was to figure out a cause of death of this gentleman. And I did that with the information I
had. [¶] I had enough information
from the investigating officers and the sheriff’s department to do what I had
to do and I did that. [¶] That he
was released was not . . . in my control. I had a dead body in front of me. I had to decide what killed this dead body
and I did that.â€
When
asked if the gunshot wounds would have been fatal “but for†the clotting, Ogan
replied as follows: “[T]he best thing
that I can say is that I have seen people who have gunshot wounds to an
extremity, say a thigh or leg, who died.
I have seen people who had a gunshot[] wound to the thigh or leg who
didn’t die. Same with the pelvis, it all
depends on the individual.â€
Gomez
does not appear to challenge the instructions the court gave the jury on
causation. Rather, he argues that the
trial court should have instructed the jury sua sponte that if it found that
the decision to release McIntosh was the sole cause of his death (apparently if
it was grossly negligent), then it could not find that Gomez was the cause of
McIntosh’s death.
He
is incorrect. The trial court’s duty to
instruct the jury sua sponte extends
only to the general principles of law that are necessary for the jury’s
understanding of the case. (
668, 773.) The court did so by giving
the jury the full panoply of instructions on causation.
trial court did not have a duty give clarifying or amplifying instructions
unless counsel requested them. (
instructions the trial court gave were either incorrect or misleading.
Gomez instead argues that the court should have instructed
the jury on the application of these principles of causation to the decision by
the hospital to release McIntosh and instructed the jury that if it found that
the decision to release McIntosh was grossly improper, they could conclude that
this maltreatment was the sole source of death.
We
disagree. The court’s sua sponte duty to
instruct on general principles of law does not extend to “pinpointâ€
instructions. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions
“relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of
a defendant’s case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request
when there is evidence supportive of the theory, but they are not required to
be given sua sponte.†(
Gomez did not request such an instruction and the court had no sua
sponte duty to give one.
Therefore,
we conclude that the jury was properly and adequately instructed on the
principles of causation. Nor does defense
counsel’s decision not to request such an instruction amount to ineffective
assistance of counsel. Given the lack of
evidence to support the defense theory that inadequate medical care was the
sole cause of McIntosh's death, any request for a pinpoint instruction on this
issue would have been unavailing.
Moreover, even if the court had given this pinpoint instruction, the
result would not have been more favorable to Gomez. Ogan determined that the cause of McIntosh's
death was a blood clot that blocked the flow of blood and made it impossible
for McIntosh to breathe. The doctor’s
testimony that the blood clot was caused by “complications of the gunshot wound
to [McIntosh’s] pelvic region†established that Gomez’s conduct was a substantial
factor in causing McIntosh’s death. In
contrast, there was no evidence to support the defense theory that the decision
to release McIntosh was so grossly negligent as to be the sole cause of his
death.
Gomez argues that
the trial court erred in its response to a question posed by the jury during
its deliberations. We disagree.
During
its deliberations, the jury sent out the following note seeking
clarification: “[R]egarding CALJIC 8.20
[first degree murder] . . . if the act of shooting resulted in a
murder and the premeditation was the act of shooting, does this imply a
premeditation of murder when murder was the result not the intent?â€
The
court provided the jury with a typewritten response that first addressed the
premeditation or “intent to kill†element of first degree murder: “Under the premeditation and deliberation
theory of first degree murder described in CALJIC 8.20 the defendant must have
express malice that is, a manifest intent to kill, as well as premeditation and
deliberation before acting.â€
The
court then went on to describe the interplay between the lack of intent to kill
and second degree murder: “If you find that the defendant intended to shoot,
but did not have the intent to kill, then the resulting death would be a second
degree murder on this theory if you find that the death was a natural and
probable consequence of the shooting.
Please consider this response only in connection with all of the jury
instructions as a whole.â€
Gomez
contends that the trial court’s statement regarding second degree murder was
erroneous because the court did not include the entire definition of second
degree murder in its response to the jury.
Specifically, he argues that, because the court’s response to the jury’s
question did not mention the third element of implied malice murder, namely
that “the act was deliberately performed with knowledge of the danger to, and
with conscious disregard for, human life†(CALJIC No. 8.31), the response “invited
the jury to avoid the question of conscious disregard altogether and find
appellant guilty of second degree murder regardless of whether or not he
appreciated and disregarded the risk to human life inherent in his actions.â€
He
is incorrect. Penal Code section 1138
on the trial court a mandatory “duty to clear up any instructional confusion
expressed by the jury. [Citations.]†(People
v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other
grounds.) “This does not mean the court
must always elaborate on the standard instructions. Where the original instructions are themselves
full and complete, the court has discretion under section 1138 to determine
what additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.]†(People
v. Beardslee (1991) 53 Cal.3d 68, 97.)
The trial court
responded to a question about only one of the elements of first degree murder—namely,
premeditation. This response was appropriately
tailored to the jury’s question. Moreover,
the court explicitly stated that its response was not intended to encompass all
issues related to the crimes of first and second degree murder when it
instructed the jury to “consider this response only in connection with all of
the jury instructions as a whole.â€
Gomez
does not—indeed, cannot—argue that the court’s instructions with regard to
first and second degree murder, either initially or after the jury’s inquiry,
were incorrect. His argument instead is
that the court was required to reinstruct the jury on the elements of second
degree murder. In other words,
defendant’s argument is that the court was precluded from answering the jury’s
question about an element of these
crimes without also reinstructing the jury as to all of the elements of these
crimes.
In
fact, the court did make clear to the jury that its response was intended to
supplement rather than supplant its earlier instructions. By charging the jury with the responsibility
of considering the instruction as a whole, the court ensured that the jury
would not misconstrue its response as revising rather than clarifying the
earlier instructions. The jury sought an
answer to a limited question. It was
given one. Therefore, it is unlikely it
would have considered the court's response as redefining the elements of second
degree murder.
We
reject defendant’s argument.
C. Threats to Witnesses
Gomez
next argues that the trial court erred in permitting Oscar Menendez, Jorge
Sanchez, and Luis Ruelas to testify about threats they received before they
testified. However, Gomez also concedes
that, under Evidence Code section 780 and People
v. Mendoza (2011) 52 Cal.4th 1056, 1084-1086, such evidence is admissible
to assist in the assessment of a witness's credibility and instead argues that,
under federal law, the evidence was inadmissible. (Dudley
v. Duckworth (7th Cir. 1988) 854 F.2d 967, 971-972.) As defendant acknowledges, we are bound to
follow our Supreme Court’s ruling on this issue and, therefore, reject this
argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
D. Instructions Regarding Testimony of Menendez, Cervantes, Valencia and
Ruelas
1
Menendez
Defendants
argue that the trial court erred when it rejected defendant Gomez’s request
that the court instruct the jury that Menendez was an accomplice as a matter of
law and, instead, allowed the jury to determine whether certain witnesses were
accomplices.
title="">[15] Accordingly, defendants take issue with a
number of instructions given by the trial court regarding the jury’s
consideration of whether certain witnesses were accomplices. These instructions include the direction that
“[t]he defendant has the burden of proving by a preponderance of the evidence
that each of the following witnesses was an accomplice in the crimes charged
against the defendants: [¶] Victor Cervantes [¶] Oscar Menendez [¶] Luis
Ruelas [¶] Larry Valencia.†The court
also instructed the jury pursuant to CALJIC No. 3.14 that “[m]erely assenting
to or aiding or assisting in the commission of a crime without knowledge of the
unlawful purpose of the perpetrator and without the intent or purpose of
committing, encouraging or facilitating the commission of the crime is not
criminal. Thus a person who assents to,
or aids, or assists in, the commission of a crime without that knowledge and
without that intent or purpose is not an accomplice in the commission of the
crime.â€
Generally,
the issue of whether a witness is an accomplice is a factual question. Only when there is no dispute as to either
the facts or the inferences reasonably to be drawn from the facts would the
court find a witness an accomplice as a matter of law. (People
v. Fauber (1992) 2 Cal.4th 792, 834; People
v. Rodriguez (1986) 42 Cal.3d 730, 759 (Rodriguez.)
Section
1111 defines an accomplice as a person who is liable to prosecution for the
identical offense for which the defendant is being tried. In Menendez’s case, his responsibility for
McIntosh’s death would have been as an aider and abettor since Gomez rather
than Menendez was the shooter. (
106 [§ 1111 covers all principals to a crime, including aiders and
abettors].) Menendez’s presence at the
scene, his failure to prevent McIntosh’s murder and even his assistance to
Gomez and Mota with knowledge of their criminal purpose (of which there was no
evidence) would not be enough to support a finding that Menendez was an
accomplice as a matter of law. (
Menendez would only be an accomplice as a matter of law if the evidence
was undisputed that Menendez shared Gomez and Mota’s criminal purpose. (People
v. Sully (1991) 53 Cal.3d 1195, 1227.)
In
fact, there was considerable evidence in the record that Menendez did not even
realize that Gomez and Mota intended to look for and kill Norteños, much less
share their criminal purpose.
name="_ftnref16" title="">[16] Menendez testified that at the time McIntosh
was murdered he had not committed to being a Varrio Frontero Loco, not wanting
that “for my future.†He wanted only to
be with girls and go to parties with the gang members, “but . . .
didn’t like the rest that they used to do.â€
Although he knew that gang members attacked Norteños, he himself was
never asked to join in. Menendez knew
that the Norteños were the Varrio Frontero Loco’s rivals. Menendez knew what areas were Norteño
territory. He also knew that if a Varrio
Frontero Loco found a Norteño or saw one he was to “[b]eat him up and if you
have a gun you have to use it.†He did
not, however, think that he was expected to hunt Norteños. When he went with Mota and Gomez on April 13,
2008, which was the day he shot himself by accident, he did not know that they
were looking for Norteños to kill. Nor
did he think that was the case on April 26, 2008. He did not realize that they were looking for
Norteños to kill until the car did not turn toward the McDonald’s on Broadway
as he had expected.
Menendez’s
testimony that he neither wished nor was expected to join in the violence
against Norteños, along with his testimony that he was unaware that Gomez and
Mota intended to shoot anyone the night McIntosh was murdered or on the earlier
occasion when he (Menendez) was accidentally shot, created a factual dispute as
to whether he was an accomplice. The
court, therefore, properly put this matter before the jury.
Gomez
argues for the first time on appeal that the People were judicially estopped
from opposing his argument that the court should instruct the jury that
Menendez was an accomplice as a matter of law because they had earlier obtained
an indictment that stated that Menendez “went hunting for Norteños with [Gomez]
and Mr. Mota and that Mr. McIntosh was killed with Mr. Menendez’s gun . . . .â€
The
application of judicial estoppel is discretionary. (Levin
v. Ligon (2006) 140 Cal.App.4th 1456, 1468). Because Gomez did not request at trial that
the court exercise its discretion in this regard, he has forfeited this
argument on appeal. (
353; People v. Williams (1998) 61
Cal.App.4th 649, 655.)
In
any event, the trial court would surely not have granted such a request. The court has the discretion to impose this
remedy “ ‘ “when a party’s inconsistent behavior will otherwise result
in a miscarriage of justice.†’ â€
(Levin v. Ligon, supra, 140
Cal.App.4th at p. 1468.) The People did
not engage in inconsistent behavior. The
indictment did not allege that Menendez was an accomplice as a matter of law. At best, it contains language that could
support such an argument. The record contained
ample evidence to the contrary and the trial court properly made its decision
based on this evidence.
2. Cervantes
There
was little evidence that Cervantes conspired with Varrio Frontero Loco to kill
Norteños or that he was otherwise involved in any of the crimes committed by
defendants. Cervantes testified that he
gave Molina a ride home after he got out of jail and spoke to him about the
killing of an unnamed Norteño. Although
there was evidence that Cervantes was a member of Mexican Locos, there was no
evidence that he shared Mota or Elizalde’s intention to kill Norteños in order
to increase the stature of Varrio Frontero Loco in the community. Therefore, the trial court properly left to
the jury the question of whether Cervantes was an accomplice.
3.
There
was also a factual dispute about whether Valencia was an accomplice to the
Perez murder. Menendez testified that he
did not think Valencia was even a gang member.
Valencia testified that he was not a gang member and only went in the
car with Azamar after they encouraged him to do so. Valencia was aware that they had driven into
Norteño territory, but he had never seen anyone killed before. In fact, he asked to be driven home after the
murder rather than join in the bragging and celebration that followed.
The
fact that Valencia was present at the scene and did not prevent the Perez
murder is insufficient to make him an accomplice. Moreover, even if there was evidence (and
th
| Description | This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in a criminal street gang and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and Elizalde[1], guilty of the first degree murder of Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force. On appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh’s death (Elizalde and Mota join in this argument); (2) the trial court did not properly answer the jury’s questions regarding the elements of second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Mota join in this argument); and (4) the trial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Mota join in this argument). |
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