(Super. Ct. No. SF111555A)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant arrived at what was to be a fistfight between two men over a woman. Just as the fight began, he pulled out a gun and fired eight times, first wounding Efren Chavira and then killing his younger brother Diego. The only evidence identifying defendant as the shooter was the testimony of two other men present at the fight.
On appeal, defendant contends the trial court erred in failing to instruct that these two witnesses were accomplices as a matter of law whose testimony required corroboration; the instructions on accomplices were flawed; and it was error to exclude a gang expert who would testify the shooting was the natural and probable consequence of the fight, supporting the argument that the witnesses were accomplices. As we will explain, we find no error and shall affirm.
Ben Callaway had a child with his former girlfriend, Michelle Zuloaga. Although they had been separated for three years, Callaway and Zuloaga maintained a friendly relationship and Callaway had visitation with his son. Callaway lived with Carlos Munoz, who was Zuloaga's cousin. The two men were close and called each other "cousin."
On Easter Sunday, Zuloaga went to a family barbeque with her boyfriend, Nelson Chavira.*fn1 When Callaway came by to pick up his son, there was an altercation with Zuloaga's uncle, who did not want Callaway on his property. That night, after returning home, Zuloaga and Nelson got into an argument and Nelson hit Zuloaga. She told him to get out and her sister drove Nelson home. Zuloaga called Callaway and complained about Nelson hitting her.
Nelson, who was upset about Zuloaga's relationship with Callaway, also called Callaway. His purpose in calling was to "squash it" or handle their business. After several calls where Nelson challenged Callaway, they agreed to meet to fight. Callaway testified he was ignoring Nelson's challenges until Nelson mentioned Callaway's son. Although they intended to fight one-on-one, Nelson asked his brothers, Efren and Diego, to come and back him up. All three armed themselves with knives or a corkscrew.
Munoz readily volunteered to join Callaway since it was clear that more than one person would be at the fight. Concerned about a fair fight, Munoz also called Ruben Carrillo, telling him that his cousin was about to fight and to meet them. Carrillo agreed. Callaway claimed Munoz did not tell him about the call to Carrillo until they arrived at the fight.*fn2
The group met in a Safeway parking lot. Callaway and Munoz arrived in a silver Mercedes, Carrillo and defendant in a blue SUV; the three Chavira brothers came on foot. Callaway headed towards the brothers, asking, "Who's Nelson?" Nelson identified himself. Nelson threw a punch at Callaway and Callaway ducked. Suddenly shots rang out, eight in all.
Just before the shooting, Efren noticed a man (later identified as defendant Gabriel Isidore Olivarez) with a hood over his face and gloves on, with a gun in his hand. Efren asked him, "Why you got to come like that?" meaning why did he have a gun. Defendant then shot Efren in the chest. Efren suffered wounds to his stomach and his arm was broken, requiring a metal rod and seven screws. Defendant continued to fire and hit Diego in the arm, thigh and back--the fatal shot.
Callaway and Munoz ran back to the Mercedes and left. The SUV also left. On the way home, Munoz called Carrillo and asked, "What the fuck? Why you guys do that for?" He heard defendant in the background say, "It's either going to be me or them." Carrillo and defendant went to Munoz's house and told Munoz and Callaway that everything would be okay if everyone kept their mouths shut.*fn3 Defendant said he had seen someone with a weapon and it would be "them before me." He admitted he knew that he had shot someone twice in the chest.
The jury found defendant guilty of first degree murder (Pen. Code, § 187) and attempted murder (Pen. Code, §§ 664/187), both with various firearm enhancements (Pen. Code, § 12022.53, subds. (b), (c), and (d)), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). In a bifurcated proceeding, the court found defendant had a strike prior (Pen. Code, §§ 667, subd. (d); 1170.12, subd. (b)) and two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to 118 years to life in prison.