IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
January 26, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GABRIEL ISIDORE OLIVAREZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF111555A)
The opinion of the court was delivered by: Duarte , J.
P. v. Olivarez
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
Instruction on Accomplices as a Matter of Law
When the trial began, defendant's primary defense was that the only evidence tying him to the crimes was the uncorroborated testimony of Callaway and Munoz, and corroboration for both was required because they were principles as a matter of law, meaning that they could and should have been charged with murder.*fn4 The defense reasoned that Munoz encouraged Callaway to fight Nelson, then Munoz called Carrillo, whom Munoz knew was a Norteno gang member. Munoz thus set in motion a violent encounter and it was likely the fight would escalate into something more serious than a mere fistfight.*fn5 In addition, the Chavira brothers came armed to the fight and Efren was a Norteno. To support this defense, defendant asked the court to instruct that Callaway and Munoz were accessories as a matter of law. The trial court ruled the jury would decide if Callaway and Munoz were accomplices.
Defendant contends the trial court erred in failing to instruct that Callaway and Munoz were accomplices as a matter of law. An "accomplice" is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Pen. Code, § 1111.) An accomplice's testimony is not sufficient to support a conviction unless it is corroborated by other evidence connecting the defendant with the commission of the offense. (Ibid.)
Although Callaway knowingly and intentionally participated in the fistfight and Munoz willingly accompanied him as backup, the evidence showed that defendant alone shot Efren and Diego. Defendant asserts that Callaway and Munoz were guilty of murder and attempted murder as aiders and abettors under the natural and probable consequence doctrine. They aided and abetted the fighting or at least the challenge to fight, and the shooting was a natural and probable consequence of the fight.
"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits 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. [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)
Given the lack of evidence that either Callaway or Munoz knew defendant was armed, defendant relies on People v. Medina (2009) 46 Cal.4th 913 (Medina). In Medina, three members of the Lil Watts gang had a fistfight at a party with a rival gang member and, after the fight was broken up, one of the three Lil Watts members shot the rival as he drove away in a car. The court affirmed the murder convictions imposed on those who participated in the fistfight, but did not fire the gun, concluding that "a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault in this case." (Medina, supra, 46 Cal.4th at p. 922.) The court found that neither knowledge that a companion in a fight was armed, nor lack of a prior gang rivalry with the victim, was required to find that murder was a natural and probable consequence of a gang fight. (Medina, supra, at pp. 923, 924, 927.)
Medina is distinguishable from the present case. First and foremost, Medina was a gang case; gang enhancements were found true. (Medina, supra, 46 Cal.4th at p. 919.) The fight began with defendants' gang challenge to the victim--"where you from?"--and this inquiry was an "aggression step." (Medina, supra, at p. 917.) The victim and the assailants were members of different, rival gangs. (Id. at p. 918.) The Lil Watts gang was known for its violence and gun offenses. (Id. at p. 923.) Moments after the fight was broken up, someone yelled, "Get the heat," showing the gang members knew a gun was available and thus gun violence was foreseeable. (Id. at p. 924.) The victim refused to succumb to the gang assault, despite being outnumbered three to one, so defendants were unable to avenge the victim's disrespectful behavior without using a weapon. (Id. at p. 927.)
In contrast, this was not a gang case; there were no gang enhancement allegations. The defense was willing to stipulate the case had nothing to do with gang warfare. The motive for the fight was not related to gang rivalry or perceived disrespect to a gang, but to the treatment of Zuloaga. There was no evidence the participants were all, or even mostly, gang members, and to the extent they were, they belonged to the same gang, the Nortenos.
In Medina, the issue was whether substantial evidence supported the conviction. (Medina, supra, 46 Cal.4th at p. 919.) The court did not find the more compelling evidence before it required an instruction on accomplices as a matter of law. Nor did it address under what circumstances a trial court must instruct witnesses are accomplices as a matter of law.
"'Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury "unless the evidence presents only a single inference." [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only where the facts regarding the witness's criminal culpability are "clear and undisputed." [Citations.]' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 191.)
In arguing Callaway and Munoz were accomplices as a matter of law, defendant contends it is sufficient, and undisputed, that (1) Callaway was "called out" by Nelson; (2) Munoz intended to join the fight and solicited Carrillo and defendant to assist; and (3) there were Norteno gang members in both groups at the fight.
We disagree with this contention and hold that the trial court properly declined to instruct that Callaway and Munoz were accomplices as a matter of law. We see no evidence that Callaway solicited Carrillo to join the fight; Callaway testified he did not know Munoz had called Carrillo until they were at the parking lot. Further, there was no evidence Callaway knew Carrillo was in a gang or otherwise was likely to increase the level of violence. Nor was there evidence that either Munoz or Callaway knew that defendant, the actual shooter, would be involved. Munoz specifically denied such knowledge. At best, the evidence as to whether anyone expected a gun at the fight was disputed. Munoz testified there was no mention of guns and Callaway testified he did not see any guns. Munoz claimed he was shocked and outraged at the shooting. Efren expressed surprise or at least dismay when he saw defendant with a gun. Even assuming for the sake of argument that defendant could prove Efren and Nelson were Nortenos,*fn6 there was no evidence either Callaway or Munoz knew their gang status.
Given these circumstances, it was not "clear and undisputed" that the shooting was objectively a reasonably foreseeable consequence of the fistfight and therefore Callaway and Munoz were necessarily accomplices because they participated in the fight. Unlike Medina, this is not a case where the fight escalated to a shooting. Here, defendant began firing as the fight began. The shooting was not proven to be driven by the same motive as the fight, nor was it shown to be for revenge or retaliation, or to save face when the fight went badly. There was evidence from which the jury could conclude that the shooting was a complete surprise to Callaway and Munoz and it was not objectively and reasonably foreseeable that a shooting would occur.
The trial court did not err in leaving the question of whether Callaway and Munoz were accomplices to the jury.
Defendant contends there were flaws in the accomplice instructions given. Because of these flaws, he argues, the jury was not informed how to determine if Callaway or Munoz were subject to prosecution for murder or attempted murder and thus were accomplices. Further, he contends the instructions conveyed to the jury that imperfect self-defense had not been established in this case.
A. CALCRIM No. 403
The jury was instructed in a modified version of CALCRIM No. 403, in part, as follows: "To prove that Carlos Munoz and Benjamin Callaway are guilty of violating Cal. Penal Code section 415 (Fighting or Challenging Someone to Fight), the defendant must prove that: 1) Carlos Munoz and Benjamin Callaway are guilty of Cal. Penal Code section 415 (Fighting or Challenging Someone to Fight); 2) During the commission of that fight a coparticipant in that fight committed the crime of murder and attempted murder [citation]; and 3) Under all of the circumstances, a reasonable person in Carlos Munoz and Benjamin Callaway's position would have known that the commission of the murder and attempted murder was a natural and probable consequence of the commission of the fight."
We agree, as do the People, that the first sentence of this instruction contains an obvious error. As the standard pattern instruction instructs, the crime that should be inserted in the first sentence is the nontarget offense (murder and attempted murder), not the target offense (fighting or challenging to fight). (CALCRIM No. 403 (2007 rev.).) As given, the instruction is circular, telling the jury that to prove Munoz and Callaway are guilty of Penal Code section 415, defendant must prove they are guilty of Penal Code section 415.
"'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citations.]" (People v. Carrington, supra, 47 Cal.4th 145, 192.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
In the context of the overall charge to the jury, we find no error. The jury was instructed that it must determine whether Munoz or Callaway were accomplices before considering their testimony or statements. "A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: 1) He or she knew of the criminal purpose of the person who committed the crime; and 2) He or she intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime." The jury was also instructed that, "Carlos Munoz and Benjamin Callaway are guilty of murder and attempted murder if you decide that Carlos Munoz and Benjamin Callaway aided and abetted the fight and that the murder and attempted murder were the natural and probable result of that fight."
"The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1202.) Any error in the accomplice instructions was clarified by closing arguments. The prosecutor clearly told the jury that Munoz and Callaway were accomplices if they could be charged with murder, either as aiders and abettors of murder or under the natural and probable consequence doctrine. The defense argued they were accomplices because a reasonable person would have known murder and attempted murder were natural and probable consequences of the fight.
B. Additional Instructions
Defendant also objects to the instruction which read: "The defendant is alleging that Carlos Munoz and Benjamin Callaway originally intended to aid and abet the fight (Pen. Code section 415). Carlos Munoz and Benjamin Callaway are guilty of murder and attempted murder if you decide that Carlos Munoz and Benjamin Callaway aided and abetted the fight and that the murder and attempted murder were the natural and probable result of that fight."
Defendant contends this instruction should have stated Munoz and Callaway are "subject to prosecution for murder and attempted murder," rather than "are guilty." As noted, ante,
the court so instructed elsewhere. Further, defendant contends that as given, the instruction told the jury that imperfect self-defense had not been established.
"A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
Considering the entire charge to the jury, it is not reasonably likely the jury would have understood the instruction on accomplices to have negated the specific instruction on imperfect self-defense, particularly since the accomplice instructions referred the jury to the full instructions on murder. Immediately before this challenged instruction, the court instructed the jury: "To decide whether the crimes of murder or attempted murder were committed, please refer to the separate instructions that I will give you on those crimes." These separate instructions included an instruction on imperfect self-defense. At the conclusion of the instructions on murder, the court instructed that imperfect self-defense (an unreasonable belief in imminent danger or the need for deadly force) would reduce a murder to voluntary manslaughter.
Defendant has failed to show a prejudicial error in the manner in which the accomplice instructions were formulated and provided to the jury.
Exclusion of Gang Expert
Defendant proffered gang-related evidence to bolster his argument that the murder was a foreseeable consequence of the fight because Munoz invited a gangster (Carrillo) to the fight. Defendant moved in limine to allow reference to the gang membership of witnesses. Defendant was willing to stipulate that this was not a gang-related incident and it was not done for the benefit of a gang. Nonetheless, defendant argued that gang membership was admissible "to illustrate the differences in mental state of gang members and/or associates and [ ] non-gang members when fighting."
At the hearing, defense counsel argued gangsters have a propensity for violence. At the continued hearing, the defense indicated its intent to call a gang expert. "The gang expert is going to say, when a gangster shows up to act as backup, we don't know what can come of it, but it's likely the gang." The court noted the possible prejudice to defendant of such propensity evidence; if there were evidence of defendant's gang membership, he would be painted by the same brush. The court ruled to exclude any reference to gangs, finding the prejudicial effect far outweighed the probative value.
On appeal, defendant's contention is narrower. He argues only that the trial court erred in declining to allow gang expert testimony, rather than in more broadly excluding evidence
of gang membership. Defendant asserts this error was prejudicial because it gutted his defense, which relied on showing that Callaway and Munoz were accomplices whose testimony required corroboration.
From counsel's vague proffer at trial--"when a gangster shows up to act as backup," "it's likely the gang"--it is difficult to determine exactly what the testimony of the gang expert was expected to be. It appears the defense expected the expert to testify to gang members' propensity for violence, whether or not acting to benefit the gang. On appeal, defendant contends "the gang expert would have provided evidence that when gang members fight, the use of weapons in that fight is a probable consequence." To support his argument that Munoz and Callaway were accomplices, defendant would have to show they knew or should have known of the violent propensity of gangsters such as Carrillo. Defendant contends, "The gang expert would have testified that Munoz and Callaway would have known that the use of weapons was a [sic] reasonably foreseeable in this fight and would have bolstered the contention that each witness was therefore an accomplice."*fn7
A gang expert may testify about the culture and habits of criminal street gangs. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) While gang experts have been allowed to testify about the expectations of gang members in general when faced with a particular situation (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371), allowable gang expert opinion has not included testimony of a specific individual's knowledge and intent. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197.) Nor is it clear how a gang expert could best opine as to the knowledge of Munoz and Callaway, since there was no evidence either was a gang member.
In any event, even assuming there was error in excluding the gang expert's testimony, defendant has failed to establish prejudice. There was no evidence--and defendant proffered none--that Callaway knew Carrillo was a gang member, so Carrillo's gang membership was irrelevant in determining whether "a reasonable person in [Callaway'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.) Thus, the exclusion of the gang expert could not have affected the jury's determination that Callaway was not an accomplice. If the gang expert had convinced the jury that Munoz was an accomplice because he invited a gang member to the fight and therefore his testimony
required corroboration, Callaway's testimony and statements were available to provide the necessary corroboration.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HULL , J.