Ct.App. 2/4 B189049 Los Angeles County Super. Ct. No. MA028151. Judge: William R. Pounders.
The opinion of the court was delivered by: Chin, J.
In this case, a verbal challenge by defendants (members of a street gang) resulted in a fistfight between defendants and the victim (a member of another street gang). After the fistfight ended, one of the defendants shot and killed the victim as he was driving away from the scene of the fight with his friend. The jury found the gunman guilty of murder and attempted murder of the friend, as the actual perpetrator, and two other participants in the fistfight guilty of those offenses as aiders and abettors. The Court of Appeal affirmed the gunman‟s convictions, but reversed the participants‟ convictions. It held there was insufficient evidence that the nontarget offenses of murder and attempted murder were a natural and probable consequence of the target offense of simple assault which they had aided and abetted.
Because a rational trier of fact could have concluded that the shooting death of the victim was a reasonably foreseeable consequence of the assault, on the facts of this case, we reverse the judgment of the Court of Appeal relating to the nonshooting defendants.
I. FACTS AND PROCEDURAL HISTORY
On the evening of January 2, 2004, Manuel Ordenes and his wife Amelia Rodriguez continued their New Year‟s celebration with a party at their home in Lake Los Angeles, California. Their neighbors Kirk and Abraham, a friend, Lisa, and Jason Falcon were present at their house. Jose Medina ("Tiny"), George Marron, and Raymond Vallejo, self-described members of the Lil Watts gang, were also present. Although Falcon was not identified as a gang member, he was always with Medina, Marron, and Vallejo. Ordenes had formerly been a member of the Lennox gang, a Lil Watts rival, although the two gangs were not rivals in the Lake Los Angeles area. Everyone was drinking alcohol and using methamphetamine.
Around 11:00 p.m., Ernie Barba drove to Ordenes‟s house with his friend, Krystal Varela, to pick up a CD. Barba went to the house, while Varela stayed at the car. When Ordenes or Rodriguez answered the door, Barba asked, "What‟s up?" On direct examination, Ordenes stated he heard aggressive voices inside the house saying, "Where are you from?" Later on cross-examination, he clarified that he heard Vallejo say, "Who is that?" and then ask Barba, "Where are you from?" From his experience as a former gang member, Ordenes knew that when a gang member asks another gang member "where are you from?" he means "what gang are you from?" a question which constitutes an "aggression step." He also knew that, if the inquiring gang member was an enemy, the question could lead to a fight or even death. If that gang member had a weapon, he would use it. Wanting to avoid problems in his house, and concerned that somebody was going to get killed, Ordenes ordered, "Take that into the streets, go outside, don‟t disrespect the house."
Medina, Marron, Vallejo, and Falcon left the house and joined Barba on the front porch. Once outside, Medina, Marron, and Vallejo approached Barba and continued to ask, "Where are you from?" Barba replied, "Sanfer," signifying a San Fernando Valley gang. Vallejo responded, "Lil Watts." Medina remarked, "What fool, you think you crazy?" Vallejo then punched Barba. Medina and Marron joined in the fight. According to Ordenes, Barba, even though outnumbered, defended himself well and held his own against the three attackers. All three "couldn‟t get [Barba] down." Krystal Varela confirmed that Barba was defending himself well.
Ordenes attempted to break up the fight and pull the attackers off Barba, but Falcon held him back. Eventually, Ordenes was able to pull Barba away and escort him to his car which was parked in front of the house. Barba got into the driver‟s seat, while Krystal Varela got into the passenger seat. At the car, Ordenes advised Barba to leave.
Varela heard someone in the yard say, "get the heat," which she understood to mean a "gun." Barba closed the driver‟s side door and drove off. As Ordenes was walking back to his house, he heard Lisa yell from the doorway, "Stop, Tiny. No, stop." Amelia Rodriguez then saw Medina walk into the middle of the street and shoot repeatedly at Barba‟s car as it drove away. Lisa, who was standing next to Rodriguez, yelled, "Tiny, you know you‟re stupid. Why you doing that? There‟s kids here. You f‟d up." Barba died of a gunshot wound to the head.
The prosecution charged Medina, Marron, Vallejo, and Falcon with first degree murder (Pen. Code, § 187, subd. (a))*fn1 and with attempted willful, deliberate, premeditated murder (§§ 664, 187, subd. (a)). Under the prosecution‟s theory at trial, Medina was guilty as the actual perpetrator, while Marron, Vallejo, and Falcon were guilty as aiders and abettors.
At trial, Hawthorne Police Officer Christopher Port testified as the prosecution‟s gang expert. Officer Port was assigned to the gang intelligence unit and was familiar with the Lil Watts gang, a violent street gang from Hawthorne. He testified that Lil Watts gang members primarily committed narcotics offenses involving possession and sales, vandalism, and gun-related crimes, including assaults with firearms and semiautomatic firearms, drive-by shootings, and homicides. The police had identified defendants Medina and Vallejo as members of the Lil Watts gang, based on field contacts and their gang tattoos. The police considered Marron to be "affiliated" with the Lil Watts gang, having seen him with Lil Watts gang members, including Medina and Vallejo.
Officer Port testified that the Lake Los Angeles area where Ordenes lived is considered a "transient area for gangs." When a new gang member arrives there, he feels a need to establish himself by demanding respect, which is "the main pride" of a gang member. Officer Port testified that gang members view behavior that disrespects their gang as a challenge and a "slap in the face" which must be avenged. Gang members perceive that, if no retaliatory action is taken in the face of disrespectful behavior, the challenger and others will view the gang member and the gang itself as weak. According to Officer Port, violence is used as a response to disrespectful behavior and disagreements and as a means to gain respect.
Officer Port stated that, when a gang member asks another person, "where are you from?" he suspects that person is in a gang and wants to know what gang he claims as his. In response to hypothetical questions, Officer Port opined that when Barba responded "Sanfer," he was claiming membership in that gang, and that the Lil Watts gang members had viewed Barba‟s response as disrespectful and had started a fight to avenge themselves. Officer Port stated that a gang member who asks that question could be armed and probably would be prepared to use violence, ranging from a fistfight to homicide. He explained, "In the gang world problems or disagreements aren‟t handled like you and I would handle a disagreement. . . . When gangs have a disagreement, you can almost guarantee it‟s going to result in some form of violence, whether that be punching and kicking or ultimately having somebody shot and killed."
Ordenes testified that it is important for a gang to be respected and, above all, feared by other gangs. Once a gang is no longer feared, its members lose respect, are ridiculed, and become vulnerable and subject to attack by other gangs. He stated that death is sometimes an option exercised by gang members as a way to maintain respect. Ordenes further stated there are a lot of gang members occupying their "turfs" with guns.
The jury acquitted co-defendant Falcon, but found defendants Medina, Marron, and Vallejo guilty as charged, and found true various enhancement allegations, including that the crimes were committed for the benefit of a gang. (§ 186.22, subd. (b)(1).)
The Court of Appeal affirmed Medina‟s conviction, but reversed the convictions of Marron and Vallejo on the ground there was insufficient evidence that the nontarget crimes of murder and attempted murder were a reasonably foreseeable consequence of simple assault, the target offense they had aided and abetted.
We granted the Attorney General‟s petition for review regarding the reversals of Marron‟s and Vallejo‟s judgments.
The Attorney General argues that, when the facts are viewed as a whole, there is substantial evidence to support the murder and attempted murder convictions of defendants Marron and Vallejo. We agree.
Substantial evidence is evidence which is " "reasonable in nature, credible, and of solid value.‟ " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‟ " (People v. Davis (1995) 10 Cal.4th 463, 509.) We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on " "isolated bits of evidence." ‟ [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 261.)
It is undisputed that Marron and Vallejo knowingly and intentionally participated in the fistfight that preceded the shooting, that Medina alone shot the victim, and that the jury convicted Marron and Vallejo of murder and attempted murder as aiders and abettors under the natural and probable consequences doctrine.
"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. (People v. Prettyman [(1996)] 14 Cal.4th [248,] 260-262.)" (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) Liability under the natural and probable consequences doctrine "is measured by whether a reasonable person in the defendant‟s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
"[A]lthough variations in phrasing are found in decisions addressing the doctrine - "probable and natural,‟ "natural and reasonable,‟ and "reasonably foreseeable‟ - the ultimate factual question is one of foreseeability." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) Thus, " "[a] natural and probable consequence is a foreseeable consequence‟. . . ." (Ibid.) But "to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . ‟ (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 132, p. 150.)" (People v. Nguyen, supra, 21 Cal.App.4th at p. 535.) A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case (ibid.) and is a factual issue to be resolved by the jury. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376; People v. Godinez (1992) 2 Cal.App.4th 492, 499.)
Here, the Court of Appeal held there was insufficient evidence to support a finding that Medina‟s act of firing a gun was a reasonably foreseeable consequence of the gang attack in which defendants Marron and Vallejo participated. In so holding, the Court of Appeal reviewed gang violence cases affirming the defendants‟ liability as aiders and abettors. (People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related fistfight was natural and probable consequence of fistfight]; People v. Montes (1999) 74 Cal.App.4th 1050, 1056 [shooting of rival gang member during retreat from fight was natural and probable consequence of gang fight in which defendant wielded a chain]; People v. Olguin, supra, 31 Cal.App.4th at p. 1376 [defendant‟s punching of victim during gang confrontation foreseeably led to fatal shooting of victim by fellow gang member]; People v. Godinez, supra, 2 Cal.App.4th 492, 499-500 [fatal stabbing of rival gang member either during or after fistfight was natural and probable consequence of fistfight]; People v. Montano (1979) 96 Cal.App.3d 221, 226 [defendant‟s aiding and encouragement of battery on victim foreseeably led to shooting of victim by fellow gang members].)
In evaluating those cases, the Court of Appeal distilled six factors it considered material to their holdings: "(1) the defendant had knowledge of the weapon that was used before or during his involvement in the target crime; (2) the committed crime took place while the target crime was being perpetrated; (3) weapons were introduced to the target crime shortly after it ensued; (4) the fight which led to the committed crime was planned; (5) the gangs were engaged in an ongoing rivalry involving past acts of violence; or (6) the defendant agreed to or aided the ...