(Super. Ct. Nos. SF113004A, SF113004B)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Jose Jesus Perez and Jose Gutierrez shot dead 15-year-old Vincente Salazar who was wearing a red shirt, which was the color of defendants' rival street gang. A jury found defendants guilty of first degree murder and found true enhancements the murder was committed for the benefit of a street gang and that a principal intentionally discharged a firearm. The jury further found Perez guilty of actively participating in a street gang.
On appeal from the resulting judgment, defendants raise six contentions relating to the evidence, the instructions, the prosecutor's handling of the case, and the sentence. Finding one error with respect to the fees in the case, we modify the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sometime after 11:00 p.m. in August 2009, Salazar was walking three girls (Vanessa Ballesteros, Erika Beltran, and Ashley Willman) home from a party. As they walked near a bar, a car pulled up behind them and someone inside the car yelled out "'Southside, sur trece.'" Perez and Eduardo Montes (who was Gutierrez's uncle) got out of the passenger side of the car and walked up to Salazar. Gutierrez (who was the driver) and a teenage girl named Leticia P. remained in the car. Perez started hitting Salazar with his fists and choking him and then Montes started swinging at Salazar with a crowbar. Salazar eventually got the crowbar away from Montes, and Salazar hit the windshield of the car. Gutierrez got out a gun from his pocket. Perez and Montes told Gutierrez to open the trunk, and then Perez and Montes pulled out a gun from the trunk. Salazar started running away. Gutierrez fired his gun at Salazar multiple times. Perez fired his gun at Salazar as well. Salazar fell to the ground. Gutierrez tracked Salazar with his gun, lowering his hand and firing his last shot at Salazar while Salazar was falling down. Gutierrez, Perez, Montes, and Leticia P. then all drove away together.
Police heard gunshots, drove to the intersection where Salazar had been shot, and found an unresponsive Salazar lying on the ground. He was pronounced dead from a gunshot wound to his neck and head that entered from behind him. He also had blunt force trauma to his head, face, neck, trunk, upper extremities and lower extremities.
Police interviewed Leticia P. During the interview, Leticia P. asked the police detective, "'If I tell you my story, am I still going to go to jail?'" The detective responded, "'I'll tell you what, if you don't tell me anything, you're certainly going to go to jail.'" After Leticia P. talked to the detective, she did not go to jail.
Police also interviewed Gutierrez. During the interview, Gutierrez admitted to police he was in the car, but he denied being the shooter.
Police searched Gutierrez's house. Inside his bedroom they found boxes of bullets. On his cell phone was a picture of a gun on a blue bandana, which Leticia P. identified as being a photograph of the murder weapon.
Police also searched Perez's home. Inside his bedroom was a CD case with the writing "Sur 13," a disassembled .22-caliber rifle, a safe with a revolver inside, and bullets. Perez's cell phone had rap music referring to Surenos shooting and killing Nortenos. Perez admitted he was a Sureno gang member. He had gang tattoos on his chest, arm, and wrist. The Surenos, whose color is blue, are the rivals of the Nortenos, whose color is red.
While awaiting trial in this case, Perez and Gutierrez beat up another inmate.
I The Court Did Not Err In Admitting Gutierrez's Statement To Police Because Gutierrez Had Not Invoked His Right To Remain Silent
Gutierrez contends the trial court erred in admitting his statement that he was present when Salazar was shot because officers failed to stop interrogating Gutierrez after he "unambiguously invoked his right to remain silent." His invocation was as follows: "You told me I have the right to ...