APPEAL from judgments of the Superior Court of Los Angeles County. Bob S. Bowers, Jr., Judge. (Los Angeles County Super. Ct. No. BA318905)
The opinion of the court was delivered by: Sortino, J.*fn9
CERTIFIED FOR PUBLICATION
A jury convicted appellants Josue Manuel Mejia, Adam Perez, Edwin Caseros, and Carlos Hernandez of the provocative act murder of Jesus Lorenzo. (Pen. Code, § 187, subd. (a).)*fn1 The jury determined the murder to be of the first degree and further found true a gang murder special circumstance. (§ 190.2, subd. (a)(22).) The jury also convicted appellants of the willful, deliberate, and premeditated attempted murder of Leonardo Pulido (§§ 664/187), attempted residential burglary (§§ 664/459), and shooting at an inhabited dwelling (§ 246). With respect to all four counts, the jury found true a criminal street gang enhancement. (§ 186.22, subd. (b)(1).) With respect to the murder and attempted murder, the jury also found true an allegation that a principal intentionally discharged a firearm during commission of a gang crime. (§ 12022.53, subds. (c), (e).)
The court sentenced Mejia to an aggregate term of 47 years to life plus 40 years in prison, calculated as follows: 25 years to life for the first degree murder, plus 20 years for the firearm enhancement; plus a "straight" life sentence for the attempted murder (minimum term of 7 years), plus 20 years for the firearm enhancement on that count; plus 15 years to life for shooting at an inhabited dwelling.*fn2 The court imposed but stayed execution of the sentence on the attempted burglary conviction pursuant to section 654.
The court sentenced the remaining appellants identically. Each received an aggregate prison term of life without the possibility of parole (LWOP) plus 22 years to life, plus 40 years calculated as follows: LWOP for the first degree murder with a special circumstance plus 20 years for the firearm enhancement; plus a "straight" life sentence for the attempted murder (minimum term 7 years), plus 20 years for the firearm enhancement; plus 15 years to life for shooting at an inhabited dwelling. The court imposed but stayed execution of the sentence on the attempted burglary conviction pursuant to section 654.
In their individual briefs, appellants raise various issues. For the most part, each joins in different issues raised by his co-appellants. For brevity, all issues either raised or joined by all appellants will be described as having been raised by appellants generally. Where not all appellants have either raised or joined an issue, those who have will be individually named.
With the exception of reducing or striking certain statutory fines imposed by the trial court, we affirm the judgments.
A. Appellant Perez's Motive to Kill Pulido
Beginning in 2000, victim Pulido lived in a second-floor apartment in the 1900 block of West Clinton Street in Los Angeles. His mother, M.S., and his younger brother, C.C., also lived in the apartment with him.
Pulido used to visit the home of appellant Perez's aunt, M.P., which was about three or four blocks away from Pulido's apartment. When they were young, Pulido and Perez were friends and attended the same school. As they got older, however, their friendship waned and they would "mad dog" each other. Eventually, Perez, like his father before him, became a member of the 18th Street gang. Pulido joined the Big Top Locos, a rival gang.
Sometime in mid-2005, Perez and Pulido engaged in a verbal argument. Perez's father got involved and pushed Pulido. Pulido ran away because he feared Perez might get a gun and shoot him.
On another occasion, Perez called out "Big Twat" - a disrespectful reference to Big Top Locos - as Pulido walked by Perez's house. Pulido responded with "Fake Teen," an equally disrespectful reference to 18th Street. Perez got into his car, followed Pulido, and attempted to run him over.
In early October 2005, Perez again drove a car at Pulido. Appellant Mejia was riding in the front passenger seat at the time. To avoid being hit, Pulido ran away. Pulido also feared that Perez might shoot him. Because he was afraid for his safety, Pulido purchased a shotgun and kept it under his bed.
The day prior to October 12, 2005, 18th Street gang members came to Pulido's apartment looking for him. C.C. told Pulido about that incident. As a result, Pulido feared for both his and his family's safety.
B. The October 12 Shooting
At around 3:00 a.m. on October 12, 2005, M.S. and C.C. were asleep in the living room of the Clinton Street apartment. Both were awakened by several men knocking on the front door. M.S. did not open the door. One of the men asked for "Leo." M.S. told the men that Pulido was not at home. C.C. heard one of the men yell "Leo," several times. The men also said that they were Pulido's "homies."
Pulido was sleeping in the back bedroom. His mother and brother woke him up and told him what was happening. Pulido was suspicious and frightened because his friends, who were all members of Big Top Locos, always called him by his gang moniker, "Bandit." Perez knew Pulido by the name Leo.
Pulido walked to the front door, where he heard whispering on the other side. He looked out an adjacent window and saw two men walking away. Pulido then looked out the kitchen window and saw the men walking towards the back of the apartment where his bedroom window faced the alley. He heard them throw something at his window.
Pulido returned to his room, retrieved his shotgun from under the bed, and loaded it with a single round. M.S. and C.C. remained in the living room. C.C. could hear rocks or shoes being thrown at the bedroom window, and also heard someone say, in Spanish, "Get in." Pulido saw the shadow of a man, whom the evidence later showed to be Lorenzo, climb through the bedroom window while holding a gun. When Lorenzo was about "halfway" through the window, Pulido shot at him once, and then did not see him anymore. At the time he shot, Pulido was in fear for his life and the life of his mother and brother.
Pulido reloaded the shotgun with a second round and looked out his bedroom window. He shot a second time at a car in the alley, to frighten anyone else away. He also saw two men running away.*fn3
Pulido ran to his mother and told her to lock the doors and not go outside. Pulido ran out of the building and saw that everyone was gone. He then ran away. As he ran away, Pulido heard gunshots. M.S. and C.C. also heard gunshots, as well as the sound of bullets hitting the side of the apartment building near their kitchen window. Police later observed bullet holes near the kitchen window.
Pulido ran to a park, got rid of the shotgun, and never returned to the apartment. He did not speak to the police about the incident until he was arrested in March 2009.
C. The Arrest of Appellant Mejia
At about 3:00 a.m. on October 12, 2005, Los Angeles Police Officer Paul Lopez and his partner Officer Washington were on patrol in the area of Alvarado and Kent Streets. They responded to a radio call about shots fired in the 1800 block of Clinton Street. As the officers drove down the 1800 block of Santa Ynez Street, they saw appellant Mejia crouching near a tree on the north side of the street. As the officers approached him, Mejia made a motion with his arm as if discarding something, and ran away. The officers eventually caught and arrested Mejia, and Lopez observed that Mejia's clothing was torn. Mejia also had scratches on his abdomen and wrists. Lopez returned to the area where Mejia had been crouching and recovered a blue steel revolver, which contained six expended shell casings.
Four expended bullets recovered from the parking lot south of Pulido's building, the wall of the building just below his kitchen window, and the interior wall of his living room had been fired from the revolver recovered from Mejia.
D. The Arrest of Appellant Caseros
Police officers arrested appellant Caseros in the early morning hours of October 12, 2005, near Alvarado and Kent Streets. An ambulance took him to County-USC hospital where he was treated for shotgun pellet wounds to his right shoulder and right bicep.
E. Death of Jesus Lorenzo
J.S. was the girlfriend of Lorenzo. At around 9:00 p.m. on October 11, 2005, Lorenzo dropped J.S. off at her house. Lorenzo was with appellant Hernandez. The two men had a "box of beer" that they were going to drink.
Early the next morning, J.S. was awakened by a telephone call from Hernandez. Hernandez told J.S. to go to the intersection of Alvarado and Kent Streets to pick up Lorenzo. "Some guy" in a car drove J.S. to that intersection. There, she found appellant Perez. She also found Lorenzo in the back seat of a car. Lorenzo was non-responsive and his chest was covered in blood.
The person who drove J.S. to the location helped J.S. place Lorenzo in the back seat of his car. They took Lorenzo to King of Queens Hospital where Lorenzo died later that morning. Lorenzo's cause of death was a single shotgun wound to the chest, fired from a distance of less than two feet. Analysis of his blood showed an alcohol content between 0.17 and 0.19 percent. He also had cocaine in his bloodstream. At the time of his death, Lorenzo had several tattoos showing membership in the 18th Street gang.
F. Admissions by Appellant Hernandez
Hernandez made a number of admissions about the shooting, both to J.S. and to another friend of Lorenzo, J.B. Over defense objection, these statements were admitted in the joint trial pursuant to People v. Greenberger (1997) 58 Cal.App.4th 298.
J.B. knew both Hernandez and Lorenzo. J.B. and Hernandez had been boyfriend and girlfriend during 2005. She considered Lorenzo her best friend. J.B. knew both men to be members of the 18th Street gang.
The day after the shooting, Hernandez told J.B. what had occurred. Before Lorenzo was shot, he and Hernandez had been drinking and were about to go to sleep. They received a phone call. Hernandez told Lorenzo not to give the caller the address, but Lorenzo did so anyway. Later, a third person came and picked both men up in a car. Hernandez went along even though he did not want to. Lorenzo was drunk and Hernandez wanted to have Lorenzo's back in case something happened. The person drove them to a rival gang member's house. This rival was a member of Big Top Locos. When they arrived at the house, Lorenzo yelled "18th Street" and started climbing onto the balcony. As he climbed the balcony, Lorenzo was shot and fell to the ground. Hernandez tried to drag Lorenzo away, but heard police sirens, got scared, and ran. Immediately after the shooting, Hernandez called J.S.
Hernandez also made admissions to J.S. The day after the shooting, he told J.S. that he was with Lorenzo when Lorenzo was shot. He and Lorenzo had been drinking earlier in the evening. Perez picked them up and took them to another location where they picked up two more people. The five men then drove to a rival gang member's apartment. Hernandez said he went with the men because Lorenzo was drunk.
G. Admissions by Appellant Caseros
After his release from custody, Caseros also spoke to J.S. He said he wanted to clear up rumors that he had left Lorenzo to die. He said that Perez drove him, Hernandez, and Lorenzo to a rival gang member's apartment to "attack" him. They went to the front door, called out his name, and told him to come out. When he did not come out, they went to an alley to climb up a wall. Caseros saw that the rival had a gun, but Lorenzo did not care and tried to climb in the window. When Lorenzo got to the window, the rival gang member shot him in the chest. Caseros and Hernandez then tried to drag Lorenzo away, but the rival then shot Caseros. Both Caseros and Hernandez then ran away.
H. Arrest of Appellant Perez
On October 15, 2005, Los Angeles Police Officer Benjamin Morales assisted in the arrest of Perez at his grandmother's residence near Alvarado Street. Morales noted scratch marks on Perez's right shoulder and damage to the left rear of Perez's green Infiniti. The damage to the car was the same height as damage to a building next to the alleyway behind Pulido's apartment.
I. Arrest of Appellant Hernandez
Los Angeles Police Detective Mario Mota arrested Hernandez at his residence on 46th Street in Los Angeles on March 20, 2007. Mota observed 18th Street gang paraphernalia at the residence, including a shrine or memorial dedicated to Lorenzo.
J. Additional Forensic Evidence
Swabs obtained from a blood trail that lead from the driveway of Pulido's building to Alvarado Street matched Caseros's DNA.
Blood swabbed from plastic conduit attached to the wall near Pulido's bedroom and from the ground outside the apartment matched Lorenzo's DNA. Blood swabbed from the jeans worn by Mejia at the time of his arrest also matched Lorenzo's DNA. Finally, blood swabbed from the passenger side threshold of Perez's car also matched Lorenzo's DNA.
Criminalist David Purdy observed impressions from two different types of shoes on plastic conduit located below Pulido's window, between the first and second floors of the building. Criminalist Fadil Biraimah observed shoe impressions on wrought iron security bars attached to a window on the east side of the building. Criminalist Ronald Raquel concluded that an impression from the wrought iron security bars was consistent with the right shoe worn by Lorenzo when he was shot. Several of the shoe impressions from the conduit were consistent with the shoes worn by Mejia at the time of his arrest.
K. Additional Gang Evidence
Los Angeles Police Officer Edgar Hernandez testified as a gang expert regarding the 18th Street gang. According to Officer Hernandez, 18th Street and Big Top Locos were rival gangs.
Officer Hernandez concluded that appellants and Lorenzo were members of the 18th Street gang based on various facts. Perez previously admitted membership, had numerous tattoos, and associated with other 18th Street gang members. One of Perez's tattoos was a memorial to Lorenzo. Mejia had tattoos and associated with Perez. Caseros had 18th Street tattoos and associated with other 18th Street gang members. Appellant Hernandez had 18th Street tattoos, one of which was a memorial to Lorenzo. Finally, Lorenzo too was an 18th Street gang member: like the others, Lorenzo displayed 18th Street tattoos. Also, his brothers were members of the gang.
Officer Hernandez concluded appellants committed the October 12 incident for the benefit of the 18th Street gang. Based upon the facts of the case, Officer Hernandez opined that Lorenzo and the four appellants went to Pulido's apartment to kill him for disrespecting Perez and 18th Street. The act was intended to send a message that 18th Street was not to be "mess[ed] with," and that when someone "mess[es] with" one member, he has "to deal with the entire gang." Such an act of violence elevates the status within the gang of the various participants, but also elevates the status of the gang amongst its rivals by showing that it retaliates if crossed by other gangs.
A. Sufficiency of the Evidence: Substantive Counts
Appellants make various arguments challenging the sufficiency of the evidence underlying their convictions for (1) the first degree provocative act of murder of Lorenzo, (2) the willful, deliberate, and premeditated attempted murder of Pulido, and (3) attempted residential burglary. We reject each.
An appellate court reviewing a challenge based on sufficiency of the evidence at trial must review the entire record in the light most favorable to the People and determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Put another way, the appellate court reviews the entire record in the light most favorable to the verdict and determines whether there is substantial evidence - evidence that is reasonable, credible, and of solid value - such that a reasonable juror could find the defendant guilty beyond a reasonable doubt. (Ibid.; see also People v. Osband (1996) 13 Cal.4th 622, 690.)
When making such an evaluation, the appellate court does not reevaluate witness credibility or resolve conflicts in the evidence. Such matters are exclusively issues for the jury. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Further, the reviewing court must accept logical inferences that the jury might have drawn from any circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) While it is the jury's duty to acquit where circumstantial evidence is subject to two reasonable interpretations, one which points to guilt and one which points to innocence, it is the jury, not the appellate court, that must be convinced beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where circumstances reasonably justify a jury's findings of fact, a reviewing court's conclusion that such circumstances might also reasonably be reconciled with contrary findings does not justify reversal. (Id. at p. 1054.)
2. Provocative Act Murder
Appellants were convicted of the first degree murder of their accomplice Lorenzo based upon the theory of provocative act murder.
Under the theory of provocative act murder, the perpetrator of an underlying crime is held liable for the killing of an accomplice by a third party. (People v. Briscoe (2001) 92 Cal.App.4th 568, 581 (Briscoe).) This theory may also apply where the third party inadvertently kills an innocent bystander in an attempt to stop the perpetrator's commission of the crime. (People v. Cervantes (2001) 26 Cal.4th 860, 867 (Cervantes).) Reduced to its essence, the theory of provocative act murder may be stated as follows:
"[W]hen the perpetrator of a crime - with a conscious disregard for life - intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder." (Briscoe, supra, 92 Cal.App.4th at p. 581; accord, Cervantes, supra, 26 Cal.4th at p. 868.)
The classic provocative act scenario occurs when a perpetrator of the underlying crime instigates a gun battle, usually by firing first, and a police officer, or victim of the underlying crime, responds with privileged lethal force by returning fire and kills the perpetrator's accomplice or, by inadvertence, an innocent bystander. (Cervantes, supra, 26 Cal.4th at p. 867.)
Provocative act murder has both a physical and a mental element which the prosecution must prove beyond a reasonable doubt. (Briscoe, supra, 92 Cal.App.4th at p. 582.) The physical element is satisfied when the defendant, or a surviving accomplice in the underlying crime, commits an act, the natural and probable consequence of which is the use of deadly force by a third party. (Cervantes, supra, 26 Cal.4th at pp. 868-869, 871; accord, People v. Concha (2009) 47 Cal.4th 653, 663 (Concha I); see Briscoe, supra, at p. 582 & fn. 5.) When the defendant or surviving accomplice acts in such a manner and the third party kills in response, the provocateur can be said to have proximately caused the resulting death notwithstanding the intervening use of deadly force by the third party. (Cervantes, at pp. 868-869, 871, 873, fn. 15; accord, Concha I, at pp. 661-663.) And a participant in the underlying crime who does not actually commit a provocative act himself may nevertheless be vicariously liable for the killing caused by his provocateur accomplice based upon having aided and abetted commission of the underlying crime. (Taylor v. Superior Court (1970) 3 Cal.3d 578, 583, fn. 1, overruled on other grounds in People v. Antick (1975) 15 Cal.3d 79, 92, fn. 12; see People v. Garcia (1999) 69 Cal.App.4th 1324, 1331; People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845-846; People v. Mai (1994) 22 Cal.App.4th 117, 127-128, disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 758, 765.) Thus, under the provocative act doctrine, a defendant may be vicariously liable for the provocative conduct of his surviving accomplice in the underlying crime. (Concha I, at pp. 660, 663, 665.)*fn4
With respect to the mental element of provocative act murder, a defendant cannot be vicariously liable; he must personally possess the requisite mental state of malice aforethought when he either causes the death through his provocative act or aids and abets in the underlying crime the provocateur who causes the death. (Concha I, supra, 47 Cal.4th at pp. 660, 662-663.) When a defendant intentionally acts with the specific intent to kill, or aids and abets in the underlying crime with same state of mind, he demonstrates express malice. (Id. at p. 662; see Cervantes, supra, 26 Cal.4th at pp. 872-873, fn. 15.) When a defendant, with conscious disregard for human life, intentionally acts in a manner inherently dangerous to human life or, with the same state of mind, aids and abets in the underlying crime, he demonstrates implied malice. (Concha I, at p. 662; see Cervantes, at p. 868; Briscoe, supra, 92 Cal.App.4th at p. 583.)
If the underlying crime which provokes the killing does not require an intent to kill, the provocative conduct must be an act beyond that necessary simply to commit the crime. (Briscoe, supra, 92 Cal.App.4th at pp. 582-583; People v. Gallegos (1997) 54 Cal.App.4th 453, 460.) Where the underlying crime requires an intent to kill, however, conduct necessary to commit the crime is sufficient to constitute the provocative act. (In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60; accord, People v. Gallegos, supra, at pp. 460-461.)
Provocative act murder may be either of the first or second degree. (Concha I, supra, 47 Cal.4th at p. 663; Cervantes, supra, 26 Cal.4th at p. 873, fn. 15.) When the defendant acts with express malice alone or with implied malice, provocative act murder is of the second degree. When the defendant acts with express malice and is also willful, deliberate, and premeditated, it is murder of the first degree. (Concha I, supra, at p. 663; Cervantes, supra, at p. 873, fn. 15; see also § 189.) Again, for purposes of murder, a defendant cannot be vicariously liable for the mens rea of his accomplice in the underlying crime. (Concha I, supra, at p. 665.) The defendant must personally act with the state of mind required for either first or second degree murder. (Id. at pp. 663-664.)
Willful is synonymous with express malice: in other words, a specific intent to kill. (People v. Moon (2005) 37 Cal.4th 1, 29.) Premeditation occurs when the killing is "'considered beforehand,'" and deliberation occurs when the decision to kill is "'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.) "The process of deliberation and premeditation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]" (Ibid.; accord, People v. Perez (1992) 2 Cal.4th 1117, 1127.)
People v. Anderson (1968) 70 Cal.2d 15, 26-27, sets forth three types of evidence ordinarily used to establish premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. Although the Anderson factors provide, essentially, a "'synthesis of prior case law,'" they "'are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case.' [Citation.]" (People v. Mayfield, supra, 14 Cal.4th at p. 768.) To sustain a verdict of first degree murder based upon premeditation and deliberation, evidence of all three Anderson categories is not required. (People v. Perez, supra, 2 Cal.4th at p. 1125.)
3. Willful, Deliberate, and Premeditated Attempted Murder
Attempted murder requires (1) a specific intent to kill and (2) a direct but ineffectual act toward accomplishing the intended killing. (People v. Smith (2005) 37 Cal.4th 733, 739.) Unlike murder, an attempted murder therefore requires express malice and cannot be proved based upon a showing of implied malice. (People v. Bland (2002) 28 Cal.4th 313, 327.) Also, unlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement. (People v. Bright (1996) 12 Cal.4th 652, 665-669, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 541.)
4. Attempted Residential Burglary
Attempted burglary requires two elements: (1) the specific intent to commit burglary and (2) a direct but ineffectual act toward its commission. (See People v. Toledo (2001) 26 Cal.4th 221, 229.) Burglary ordinarily requires (1) unlawful entry into a building with (2) the intent to commit theft or any felony. (People v. Montoya (1994) 7 Cal.4th 1027, 1041; see also § 459.) Entry of an inhabited dwelling house with the requisite intent is burglary of the first degree. (§ 460, subd. (a).) With exceptions not applicable here, all other burglaries are of the second degree. (§ 460, subd. (b).)
A person charged with an attempted crime may be convicted of such even if the evidence at trial shows that the crime was completed. (§ 663.)
Principals in the commission of a crime include both the direct perpetrator of the crime and those who aid and abet the commission of the crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see also § 31.) A person aids and abets commission of a crime when, with knowledge of the perpetrator's unlawful purpose, he, by act or advice, encourages or facilitates commission of the crime with the specific intent to do so. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Additionally, an aider and abettor is guilty not only of any ...