Superior Court County of Los Angeles (Super. Ct. No. VA085462)(Los Angeles County) Philip H. Hickok, Judge.
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Geovanny Leon, also known as "Chucky," appeals from the judgment entered following his conviction by a jury of one count (count 1) of first degree murder (Pen. Code, §§ 187, subd. (a), 189),*fn1 two counts (counts 2 and 3) of willful, premeditated, and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a)), one count (count 4) of discharging a firearm at an occupied motor vehicle (§ 246), and one count (count 5) of discharging a firearm at an inhabited dwelling house. (Ibid.) As to each of counts 1 through 4, the jury found true an allegation that appellant had personally and intentionally discharged a firearm and had proximately caused death to Jose Blanco. (§ 12022.53, subd. (d).) As to count 5, the jury found true an allegation that a principal had personally and intentionally discharged a firearm. (§ 12022.53, subds. (c) & (e)(1).) As to all counts, the jury found true allegations that the felonies had been committed for the benefit of a criminal street gang. (§186.22, subds. (b)(1)(B) & (b)(1)(C).) The trial court imposed an aggregate prison term of 145 years to life. All individual terms of imprisonment were ordered to run consecutively to each other.
Appellant contends that (1) the trial court erroneously allowed the prosecutor to present evidence and make remarks concerning the derivation of appellant's gang moniker; (2) as to the murder and attempted murder convictions, the evidence is insufficient to show beyond a reasonable doubt that appellant acted with the specific intent to kill and with premeditation and deliberation; (3) the trial court abused its discretion in imposing consecutive life terms on each of the two attempted murder counts; and (4) the sentence of 145 years to life constitutes cruel and/or unusual punishment in violation of the federal and state constitutions.
We conclude that the evidence is insufficient to show beyond a reasonable doubt that appellant harbored the specific intent to kill the attempted murder victim in count 3: Richard Rodriguez. We reverse the conviction on count 3, thereby reducing appellant's sentence by 40 years: from 145 years to life to 105 years to life. We direct the trial court to amend the abstract of judgment and affirm in all other respects.
Rivera 13 and Pico Nuevo are rival criminal street gangs in the City of Pico Rivera. Since 1990, this rivalry has resulted in "multiple homicides" and "hundreds of shootings and violent assaults." Each gang claims a portion of the city as its territory.
Appellant was a member of Rivera 13. Brian Bray was not a member of Rivera 13, but he "hung out" with Rivera 13 gang members and considered himself to be an associate of the gang. On September 28, 2004, Bray was driving his blue truck in Rivera 13's territory on Passons Boulevard in Pico Rivera. Appellant was seated to the right of Bray in the front passenger seat. The time was just before 7:00 p.m. It was still light outside.
Bray stopped the truck and was waiting to make a left turn. A white Toyota Camry passed the truck on its right side. Bray recognized the driver of the Camry as Richard Rodriguez. Bray knew that Rodriguez "hang[ed] out with Pico Nuevo," an "enemy of Rivera 13." Bray mistakenly believed that there were five males inside the Camry, but he recognized only Rodriguez. Bray aborted the left turn and followed the Camry. His "primary interest was going after Richard Rodriguez."
The Camry actually contained three, not five occupants. Victor Hernandez was seated in the front passenger seat next to Richard Rodriguez. Jose Blanco was seated behind Hernandez in the right backseat. Richard Rodriguez and Victor Hernandez were "Pico Nuevo associates." This meant that they were "running" and "hanging out" with Pico Nuevo gang members but had not been formally inducted into the gang. Jose Blanco was "a full[-]fledge[d] member of the Pico Nuevo gang."
Rodriguez saw Bray's blue truck following close behind the Camry. He recognized appellant as the person seated in the front passenger seat of the truck. Appellant was "flashing some gang signs with his hands." The gang signs showed his affiliation with Rivera 13. Rodriguez "accelerated his Toyota to try to evade the truck that he believed was pursuing him."
Appellant removed a revolver from his waist, leaned out of the passenger side window of the truck, and fired one shot. Rodriguez heard Blanco say, "I'm hit." The bullet struck the Camry's right taillight and traveled through both the light and the right backseat. The bullet entered Blanco's back and pierced his left lung and heart. The wounds were fatal.
There was animosity between appellant and Blanco. Appellant's sister told the police that the enmity between them stemmed not only from their membership in rival gangs, but also from a dispute over a girl named "Shelly." Furthermore, while incarcerated in a juvenile camp, appellant and Blanco "had a fight." Rodriguez testified that, approximately two minutes before the shooting, Blanco had said that he did not like "Geovanny" and that he and Geovanny were "going to fight."*fn3
A gang expert opined that appellant's shooting of Blanco was for the benefit of Rivera 13. The expert explained that, as a Rivera 13 gang member, appellant would have considered it to be "disrespectful" of the gang for a member and associates of Pico Nuevo to be driving through Rivera 13's territory. Pursuant to gang culture, appellant would have been duty-bound to take revenge for this act of disrespect. If appellant had done nothing, he would have lost status in the gang. The more violent the act of revenge, the more appellant's fellow gang members would respect him. Appellant would gain the most status from the commission of a homicide.
Appellant contends that the trial court erroneously allowed the prosecutor to present evidence and make remarks concerning the derivation of appellant's gang moniker, "Chucky." During the trial, the gang expert opined without objection that the moniker was derived from a "movie and four sequels" in which "Chucky" is a "homicidal doll" that "comes to life" and "goes about slashing people." A photo album that belonged to appellant contained a page with photographs of both him and the Chucky doll.
Prior to trial, the prosecutor notified the court and defense counsel that, during his opening statement, he intended to display to the jury the page from the photo album showing photographs of appellant and the "Chucky doll from the horror movies." Defense counsel objected. When the trial court asked counsel to state the basis for his objection, counsel responded: "It's argumentative, first of all, your honor." The court asked: "Is the reference to Chucky your objection or the picture of the doll?" Counsel replied, "The picture of the doll. If [the prosecutor] wants to say [that appellant is] known as Chucky, that's fine." Counsel pointed out that the doll is "from a horror movie." The court responded, "I bet you a buck that half of our jurors don't know that."*fn4 Counsel remonstrated, "If they ever watched television in there [sic] life, they saw that stupid thing on there. [¶] . . . I don't like the horror doll being up there." The court declared: "I don't have a problem with it. I don't think its prejudicial to your client at all." Counsel protested: "I believe it is, your honor. I think it's putting him in light of a horror character." The court said "all right" and ordered that the jury be brought into the courtroom.
During his opening statement, the prosecutor displayed the page from the photo album to the jury and stated: "During the course of this trial you'll see a photo album that was taken from the house where [appellant] stayed for a period of time. It was like [appellant's] scrapbook. And this is a page from that scrapbook of [appellant] flashing R, for Rivera, and this little picture of Chucky that was there next to his picture. If you haven't seen that doll before, it's a character from a horror film, I think called Child's Play. He was a killer doll going around killing people. That's where the name Chucky comes from." Defense counsel did not object to the prosecutor's remarks.
At trial evidence was presented that, while appellant was in jail awaiting trial, a deputy sheriff found in his cell a manila envelope containing appellant's property, including a blue book with a "little picture of a Chucky doll" on the cover. Someone had written on the manila envelope, "Rivera kills." Inside the manila envelope was a piece of paper on which someone had ...