California Court of Appeals, First District, Second Division
Trial Court: Superior Court of Contra Costa County No. 050809038 Hon. John Kennedy Trial Judge
Attorney for Appellant Gamaliel Elizalde Solomon Wollack By Appointment of the Court of Appeal under the First District Appellate Project Independent Case System
Attorney for Appellant Jose Mota Stephen B. Bedrick By Appointment of the Court of Appeal under the First District Appellate Project Independent Case System
Attorney for Appellant Javier Gomez John Ward By Appointment of the Court of Appeal under the First District Appellate Project Independent Case System
Attorneys for Respondent The People Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Rene A. Chacon Supervising Deputy Attorney General David M. Baskind Deputy Attorney General
Haerle, Acting P.J.
This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in a criminal street gang and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and Elizalde, guilty of the first degree murder of Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force.
On appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh’s death (Elizalde and Mota join in this argument); (2) the trial court did not properly answer the jury’s questions regarding the elements of second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Mota join in this argument); and (4) the trial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Mota join in this argument).
Mota argues that the trial court erred when it (1) found that there was no prima facie case of discrimination with regard to an African-American prospective juror (Gomez and Elizalde join in this argument); (2) gave the jury the task of determining whether four witnesses were accomplices (Gomez and Elizalde join in this argument); (3) admitted into evidence a statement Mota made during booking regarding his gang affiliation (Gomez and Elizalde join in this argument); (4) instructed the jury not to speculate about why unjoined perpetrators were not tried in the same trial (Gomez and Elizalde join in this argument); and (5) admitted evidence that Mota attacked Jorge Sanchez in jail (Gomez and Elizalde join in this argument). He also argues that (6) during his rebuttal to the defense’s closing argument, the prosecutor committed misconduct (Gomez and Elizalde join in this argument); and (7) there was cumulative error.
Elizalde contends on appeal that (1) there is not substantial evidence to support the jury’s conspiracy finding (Gomez and Mota join in this argument); (2) the trial court failed in admitting phone calls between Hector Molina and his mother under the co-conspirator exception to the hearsay rule (Gomez and Mota join in this argument); (3) trial counsel was ineffective for failing to seek redaction of a statement Elizalde made to Molina’s mother during one of these jail calls; (4) the trial court erred when it instructed the jury, pursuant to CALJIC No. 3.13, that the required corroboration of the testimony of an accomplice may not be supplied by the testimony of any other accomplice (Gomez and Mota join in this argument); (5) the trial court erred when it admitted evidence that Elizalde possessed methamphetamine for sale to prove a predicate offense for the gang charge and enhancements (Gomez and Mota join in this argument); (6) counsel was ineffective for failing to object to other crimes evidence regarding the conspiracy to commit murders (Gomez and Mota join in this argument); and (7) there was cumulative error.
With the exception of the admission of Mota’s un-Mirandizedstatements made when he was booked into jail, an error that was not prejudicial, we find no other error and affirm the judgments.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Murders
Defendants Mota and Elizalde were convicted of three murders that occurred over a four-month period between December 22, 2007, and April 25, 2008. Gomez was convicted of one of the three, that of Rico McIntosh. The most significant testimony regarding these murders came from fellow gang members and/or friends, Jorge Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez (McIntosh murder), and Larry Valencia (Perez murder).
1. Antonio Centron Murder
Jorge Sanchez testified that in exchange for his testimony he pled to accessory after the fact to murder, and received a three-year suspended sentence. Sanchez, who was not in the country legally, also had a “parole in place” arrangement with Immigration and Customs Enforcement and, as a result, wore an ankle bracelet monitor. Sanchez testified that he was a member of Varrio Frontero Loco, a subset of the Sureño gang, which is active in Contra Costa County.
The evening of December 22, 2007, Francisco Romero, who was also a Varrio Frontero Loco, gathered together a number of people and went to North Richmond. When he arrived, Molina phoned defendant Gamaliel (Gama) Elizalde “because supposedly he was going to put a meeting to go up there, just fight them [the Richmond Sur Trace members].” After speaking to Romero, Elizalde came to North Richmond. Elizalde then tried to call a Richmond Sur Trace member in order to arrange a fight but was not able to reach anyone.
After the failed effort to engage the Richmond Sur Trace, Sanchez, Romero and Molina eventually drove to the Broadway area of San Pablo, which was known to be Norteño territory. Sanchez understood that if they found Norteños there they would beat them up or shoot them. He understood this “was part of the deal of being a... [Varrio Frontero Loco] Sureño at this time.”
That same evening, the victim, Antonio Centron, along with two friends, Neil Wixson and Adrian Espinoza, attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of hours and then walked down Lake Street, toward 19th Street to buy beer. This area of San Pablo was a stronghold of the Norteño gang. Wixson and Centron wore red shirts, a color associated with Norteños. Centron walked a little ahead of his friends.
Romero drove by Centron, Wixson and Espinoza. Molina, who was in the right front passenger seat, told Romero he knew one of the three men. Molina pulled out a handgun and directed Romero to park down the next street. Romero parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson and Espinoza to come to the corner. When they did, Molina told them he was “VFL” and emptied his gun in their direction. His first shot hit Centron in the head. Centron died almost immediately. Nine more shots hit Espinoza in the back. Molina’s final shot hit Wixon in the arm. Espinoza, who was still conscious (and ultimately survived his injuries) called 911.
After killing and wounding the men he believed were rival gang members, Molina ran back to the car and they sped off. In the car, Molina was jumpy and excited. According to Sanchez, Molina said “to watch the newspaper. That’s—that was going to be his trophy.” A newspaper article about a killing was “[l]ike a signature that you did it.” The killing would give Molina “more respect” in the gang. Molina called Elizalde to tell him what he’d done. Elizalde arrived “and just started telling him just be quiet, stop, you know, screaming and just lay low.”
The next day, the police detained and searched Molina. They found in his possession a.45 caliber chrome Colt semiautomatic handgun, a blue bandana, and a blue baseball hat. The police arrested him and charged him with possession of a concealed firearm. Molina was released from jail four days later.
Victor Cervantes testified that right after Molina got out of jail, he called Cervantes and asked for a ride home. Molina told him that he’d killed one man and another was in a coma. He also told Cervantes that he’d been with Francisco Romero when he’d killed the man. Cervantes asked him how he got out of jail when he’d been caught with a gun. Molina told him that he got caught with a different gun than the one used in the killing and, as a result, he had gotten away with murder.
In an interview with the police, Luis Ruelas testified that Molina admitted to him that he was in the car with Romero and Sanchez that evening and that Molina said he had shot at three men and killed one of them.
Defendants Elizalde and Mota were found guilty of Centron’s murder as co-conspirators.
2. Luis Perez Murder
Larry Valencia was one of the prosecution’s main witnesses with regard to the murder of Luis Perez. Valencia had not made a plea bargain with the District Attorney’s office, nor was he receiving any witness protection or money from the District Attorney’s office.
Valencia testified that late on the night of February 16, 2008, he decided to visit friends in North Richmond. After an evening of drinking beer, smoking marijuana and taking Ecstasy someone said, “[l]et’s jump for a ride. Let’s go find some females to party.” Hector Molina, Jorge Camacho, and Jose Mota got into Mota’s black, two-door Kia. Molina sat in the driver’s seat, with Jorge Camacho next to him in the passenger seat and Mota in the back. Cole Azamar and Luii Hernandez got into Azamar’s car, with Azamar driving and Hernandez sitting in the passenger seat. All five men were members of Varrio Frontero Loco. They encouraged Larry Valencia (who testified that he was not a gang member) to join them and he got into the back seat of Azamar’s car. After the two cars drove around for a while, with Azamar following Molina, they arrived in San Pablo. Valencia was aware that this was Norteño territory.
Molina stopped the car and Valencia saw the people in Mota’s car arguing with a man in a red jacket—the victim, Luis Perez—who was standing next to the car. He saw Camacho get out of the car and say to the man, “[s]how me your hands, show me your hands.” The man yelled “[w]hat the fuck is going on?” Valencia heard three loud shots and saw Camacho shoot the man three or four times. In fact, Camacho hit Perez seven times: two bullets to the abdomen, two to the back and three to the back of his arms. The bullets passed through Perez’s lungs, heart and liver. Perez died en route to John Muir Hospital in Walnut Creek.
Camacho got back into the car with Molina and Mota and Molina drove away. Valencia had never seen anyone killed before. Valencia told Azamar to take him back to his car so he could go home.
Mota was found guilty of Perez’s murder on an aider and abettor theory. Elizalde was found guilty as a co-conspirator.
3. Lisa Thayer
The third victim, Lisa Thayer, died when Jorge Camacho, a member of Varrio Frontero Loco, exchanged shots with several unidentified men in a Toyota minivan.
This altercation began late in the afternoon of February 27, 2008. Camacho and his friend Antonio Solomon, were walking on San Pablo Avenue in San Pablo. Solomon was wearing a New York Yankees hat. In that area, that kind of hat was understood to stand for “Young Narfer, ” a reference to North Richmond, which was Sureño territory.
A burgundy Toyota minivan with a Hispanic driver and front seat passenger and African-American passenger in the back seat passed Solomon and Camacho. Solomon and Camacho ran.
The men in the minivan chased them. Eventually, the minivan pulled up behind Solomon and Camacho. The side door opened, revealing that the back seat passenger had a gun. Camacho shot at the van with the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The man in the van also fired a.40 caliber semiautomatic handgun several times.
Lisa Thayer, who was walking on San Pablo about half a block from the shooting, was hit by a bullet. The bullet hit her in the back, went through her right lung and came out at her chest. Thayer died soon afterwards.
Solomon and Camacho ran from the scene with the van following them. Someone in the van fired several more shots at them. Soloman and Camacho climbed a fence and ran to the apartment of a friend—Ignacio Mendoza. When Mendoza’s mother told them to leave, Camacho gave his gun to Mendoza and left with Solomon. The police arrived nearby, a witness pointed them out and they were arrested. Camacho had a blue bandana in his pocket.
The jury found defendants Mota and Elizalde not guilty of Thayer’s murder.
4. Rico McIntosh
The fourth shooting occurred in the early morning hours of April 26, 2008. Oscar Menendez, who was present at the shooting, testified that he had pleaded to accessory to the murder of McIntosh with a gang enhancement. He was given three years probation. As a condition of his plea, he agreed to testify in court. At the time he testified he was in “parole in place, ” which meant he wore an ankle monitor required by Immigrations, Customs and Enforcement. The People were assisting him in obtaining a work permit. Menendez had not violated any of the terms of his probation or the terms and conditions imposed by Immigration, Customs and Enforcement. He did not receive any money from the District Attorney’s office.
Menendez testified that he had known Mota for several years. Mota was a member of Varrio Frontero Loco. Menendez also knew Javier Gomez. The three of them hung out together and “sometimes we used to get in the car and just cruise around.” Gomez belonged to a Sureño subset called Mexican Loco. Menendez had been at parties where members of the two Sureño subsets would brag “about crimes they have done during the week or, you know, any stuff that they doing, you know, like beating somebody up or robbing people or whatever crimes they do, they used to brag about all of the time.” Six months before the McIntosh murder, Menendez became a Sureño.
Menendez described an incident that occurred about a week and a half before the McIntosh murder. He, Gomez and Mota went to visit Gomez’s cousin who lived in Montalvin, which was Norteño territory. Mota drove his Kia, and Gomez sat in the front passenger seat. Menendez sat in the back. The cousin wasn’t home, so they turned around to return to Richmond. As they did so, Gomez and Mota saw a man wearing red who was fixing his car. Mota and Gomez “said he was a Buster. He was wearing red....” Menendez didn’t agree and when he saw that Gomez and Mota had a gun in the front seat he told them to drop the gun. Menendez tried to grab the gun and in the ensuing scuffle, someone shot Menendez in the leg.
Menendez was bleeding heavily, so Mota and Gomez took him to the hospital. The police questioned Menendez and he lied and told them that they had been jumped and he had been shot in the leg because he told his assailants that he didn’t have any money.
Several weeks later, Gomez and Mota pulled up to where Menendez was hanging out with some friends and “they were calling me, right, and I went to the car and they say get in the car. I was like where are you guys going? They said don’t trip.” As on the other occasion, Mota was driving and Gomez was in the front passenger seat. Menendez asked if his friend could go too, and Mota told him he couldn’t. Menendez got in the car and they decided to go to a McDonald’s on San Pablo near Broadway. Instead of turning right into the McDonald’s, however, Mota turned left onto Broadway. Menendez asked Mota were he was going and he said “don’t trip.” Mota kept driving. At this point, they were driving into Norteño territory and Menendez thought “they were looking for some Norteños... or they were trying to do something again.”
Gomez spotted three men wearing red at a stop sign. Mota stopped the car and asked the men if they were “busters.” The men said they weren't, and Menendez recognized one of them and told Mota that “they don’t bang....” Mota drove away but “he kept on mugging them.”
Mota then spotted Rico McIntosh, who looked, to Menendez, like he was wearing a red bandana and had some “red on his pants, too.” Mota and Gomez thought he looked like a Norteño. They pulled alongside McIntosh and Gomez asked him “if he is a buster.” McIntosh said “what the fuck is a buster?” Menendez thought he heard Mota say “pull it out.” He then saw Gomez reach down toward his leg. McIntosh made a gesture as though to reach for something and Menendez thought it was a gun. Gomez began to fire the gun out of the window of the car. Menendez heard four or five shots. McIntosh fell and Mota and Gomez began to laugh. Menendez told them it wasn't funny and they told him he was a “pussy.” Menendez said he wanted to go home. “I told them what they just did, it was wrong because I never seen somebody kill another person like that.”
Mota and Gomez “seemed pretty happy, like they just won the lottery or something. They were really excited about it.” Mota and Gomez wanted to celebrate, but Menendez asked to go home. On the way, Mota and Gomez talked and said, “Oh, you know, what the homies are going to say when they find out, or was he good, was he bad, you know they were saying that it was like, you know, it was like perfect. Perfect is no one sees them. [¶] No one seen us when we were there. When that happened there was no people at all, just that guy.”
When they arrived at Menendez’s house, Mota left the gun with Menendez. He told Menendez that he was on parole and couldn’t have it.
A week or so later, Menendez went to a party with members of Varrio Frontero Loco and Mexican Loco. At the party, Gomez “started talking about it.” Ruelas was also present, along with a number of other Varrio Frontero Loco and Mexican Loco. Mota was also there.
Gomez confessed to the McIntosh murder. He told the police that Mota picked him up the night of the murder and the two of them went to look for Norteños. Mota gave him the gun he used to shoot Rico McIntosh. Mota’s job was to drive until he saw a Norteño and then stop. Gomez didn’t plan to shoot anyone who wasn’t a Norteño. After driving around for a while Mota and Gomez picked up Menendez. Menendez sat in the back seat. They continued to look for Norteños, slowing down to look and then ruling out a number of groups of people who were out that night. Eventually, either Mota or Menendez spotted McIntosh, who was walking down the street. Mota told him that McIntosh had some red on. Gomez “asked him, are you a Buster? And he said, what the fuck is a buster? He, he had a hoodie. Then he like, he pulled the hoodie down as if he wanted to do something, so I just shot him.” He shot McIntosh until there were no bullets left in his gun.
After the shooting they went to a store and bought some beer and drank it at the cemetery. He gave the gun to Menendez. Menendez saw the whole thing from the backseat.
McIntosh was hit in the hip and buttocks. He was taken to John Muir Hospital and released on April 28, 2008. The next day, McIntosh collapsed and died after blood clots caused by the gunshot wounds traveled to his lungs.
Gomez was convicted of second degree murder. Mota was convicted of first degree murder as an aider and abettor and Elizalde was convicted as a co-conspirator.
B. Conspiracy and Gang Evidence
Several witnesses testified to a conspiracy on the part of Mota and Elizalde to commit murders of rival Norteño gang members in order to restore the reputation and fortunes of the Varrio Frontero Loco.
1. Jorge Sanchez
Jorge Sanchez was a member of Varrio Frontero Loco. He joined because his older brother was in the gang. Sanchez’s brother was a member of the Mexican Loco, another Sureño gang, and he joined the Varrio Frontero Loco because he wanted his own “name.” He was “jumped in” to Varrio Frontero Loco, through a process he described as “[j]ust imagine three guys beating on one person, kicking him, beating him, just thumping on him” for 13 seconds. He had also helped jump people into the gang. Sanchez showed the jury a number of tattoos that signified his membership in Varrio Frontero Loco. Gang tattoos were important so people “won’t mess with us.”
A Sureño who wanted to prove himself would “[j]ust go to the streets. Beat up any Norteño you can think of to start with.... [¶] Just you earn respect and your stripes. Start shooting or just doing whatever you want.” You would do this with other people “[t]o make sure you do it. Just to make sure you ain’t lying about what you did.” When Sanchez went out to attack Norteños, he would take fellow Varrio Frontero Loco with him. He would do that for “backup.” He would also do it to “make sure they do it, too. Make sure they look at you.”
Sanchez understood that at the time of trial, Mota and Elizalde had “green lighted” him; that is, they had ordered him killed for talking to the police. Green lighting did not occur until the actual text of a statement made to the police was distributed “to the streets, ” generally through a defendant who received the statement from his lawyer.
Sureños were enemies with Norteños because they were “mixed people”: “part Mexican... they mix with Mexican black, Mexican white.” You could tell who they were by “[t]he hair, the clothes, the grill that is like the gold teeth they wear. [¶] And if they got tattoos you look at tattoos, belts.” In particular, Norteños had long hair, “all of the new clothes the black people be coming out with, ” and wore the color red, including red belts. Sureños identified themselves with blue bandanas and blue belts.
Sanchez was familiar with a number of Norteño sub-gangs including West Side Berkeley, Montalvin, Varrio San Pablo. Each of them claimed a particular area. Varrio San Pablo claimed the area near Broadway and the Hilltop Mall.
As a Sureño, when he saw a Norteño he was supposed to “[t]ake off, just don’t even think about it, just hit them up.... Just whoop his ass.”
Varrio Frontero Loco used violence to scare “[j]ust the people, Norteños whoever—everybody, the blacks, the whites, the Asians.” They did so “[j]ust so they won’t mess with us.... [P]eople be picking on people. Sometimes people just look for a way out. And just make sure they scared of you instead of you being scared of them.”
Fame mattered because it was a way of “representing my hood, ” “[j]ust to let people know... where you are from.” You did that by “doing a lot of things, shooting, selling drugs, getting money, cars, just whoop—whooping people in front of other people.” A Varrio Frontero Loco would “throw it up” by telling someone who they were, just make sure they know it. Being feared by rival gang members was a good thing—“[y]ou can be walking the streets with no one, no one is trying to hit you up or something.”
Gang members would get together and brag about what they had done in order to let people know that “if they mess with you they will get the same... treatment.” He would also get together with other Varrio Frontero Loco and plan future crimes “to get respect or to make people afraid.”
With regard to non-gang members, it was important to “let them know that... we don’t mess with you and you just don’t mess with us.”
Drug sales were a part of being a Varrio Frontero Loco. Sanchez “wasn’t into that, ” but he had seen fellow gang member Gamaliel Elizalde selling drugs out of his backyard. He would sometimes give drugs to Mota to sell and Mota would brag about it. The drug sales were run out of Elizalde’s house.
Varrio Frontero Loco held meetings to “check in with each other, to make sure what was going on with each other and just what kind of problems, like people got problems with someone, different rivals or with a Norteño or something.” Sometimes the members would put money together for people in jail to use for “hygienes like toothpaste, soap, shampoo....” Elizalde was in charge of putting money “on the books” for the Varrio Frontero Loco members who were in jail. The meetings were not held often. Sometimes the meetings would take place at Victor Valencia’s house and sometimes at Elizalde’s house.
Occasionally, he and other members would “check, ” or beat up, a member who was not “putting in work or he ain’t kicking it with us a lot....”
At the time Sanchez joined Varrio Frontero Loco in 2005 or 2006, it was led by a number of men, including Gamaliel Elizalde. Elizalde was an “OG” or leader, “the one you look up to.... The one that you go ask for advice.” One of the benefits of being a leader was that he “get to kickback or just don’t do a lot of things no more.” A leader would not “fight somebody or put a lot of work in the streets, shooting, whatever, just get to just relax and let the other generation do their work.”
A leader would have money from “things going on on the side.... [¶]... like they were selling drugs....” The leaders would use the “pee wees” or younger members “to distribute it....”
In 2007, there were several subsets of Sureños with whom Sanchez was familiar: his own gang, Varrio Frontero Loco, another gang called Mexican Loco and a third called Richmond Sur Trece. Although they were all Sureños, they did not always get along. In 2007, a Varrio Frontero Loco leader called “Toby” shot a member of a Richmond Sur Trece and fled, along with his brothers, to avoid being killed in retaliation for murdering a fellow Sureño. This left a void in the leadership of Varrio Frontero Loco, which was filled by Elizalde. As Sanchez put it, after Toby fled, “everybody was just going to Gama, so that's the only one who we look up to and who was there with us.” Nevertheless, after Elizalde took over, Varrio Frontero Loco began to dissolve. “[E]verybody just try to take it their own way. It was—just disappeared. Some of them went to some other towns. People got scared because they got shot at, who was getting stomped on.” At this point, Varrio Frontero Loco were “getting hurt” and “things were bad.”
Sanchez testified that “we just had to get it back together.” He and others referred to this as “bring[ing] the hood back.” To do this, it was necessary to “recruit new people and try to do more damage to the Norteños, to the streets.” All of the Varrio Frontero Loco wanted to bring the hood back, including Elizalde. In terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez was directly under him along with Mota, Ruelas, and several others.
Elizalde told the Varrio Frontero Loco that they had to “put in more work, ” “go to the streets, ride around the streets, ” “[m]ake sure they [the Norteños and everybody] know we around, we ain’t gone.” They would do this by “hit[ting] the streets, ride around, especially in Norteño territory.” Sanchez explained that this was effective because the Norteños “don’t expect us to go. They think we going to be scared. They think we going to just lay back. And we go there and they go, oh, man, they coming back and they coming back hard.” In Norteño territory, [i]f you see them just shoot them or whoop them, whatever you got. If you don’t got no gun you just get out and do what you got.”
Sanchez discussed this plan with all the Varrio Frontero Loco, including Mota. He didn’t talk to Elizalde about why he wanted to bring the hood back; he only knew that Elizalde “wanted it done.”
According to Sanchez, he and Mota, along with Luis Ruelas, Luii Hernandez, and Cole Azamar were “the ones who was going to bring them back... just the ones who got to take care of everything.” They covered different parts of Richmond. In addition to attacking Norteños, they also recruited and “guided” “pee wees.” Elizalde wanted them to “get into the high schools and expand the Sureños and hurt the Norteños.”
Shortly before Sanchez was arrested, Mota came to his house. He was nervous because the police had been to his house. Mota told him that he [Mota] “went in the shootout.” He also spoke to Jorge Camacho who told him that he “shot a lady.”
2. Oscar Menendez
Oscar Menendez testified that at the time of the Rico McIntosh murder, he “was undecided” about being a Varrio Frontero Loco. He “didn’t want it for my future... it was just fine being with them, you know, being with girls and having parties, but I didn’t like the rest that they used to do.” He had a lot of Sureño mentions on his MySpace page, and he liked being around the gang because it “was fun because they always used to hang around with a lot of girls and they always used to have parties every weekend and, you know, beers and music.”
He was aware that gang members “hunted and attacked Norteños.” However, no one ever “told me to do it.” He was never “jumped in.” He associated with the Varrio Frontero Loco for six or seven months beginning in November 2007 until his arrest about a week after the McIntosh murder.
It was typical for gang members to brag about their crimes. He explained, “they say that’s what they get respect because when they—when the rest of the guys knew what you were doing they will respect you more than what they do.” This was a “big deal” to the Varrio Frontero Loco.
The Norteños were the Varrio Frontero Loco’s rivals. Menendez knew what areas were Norteño territory. He also knew that if a Varrio Frontero Loco found a Norteño or saw one he was to “beat him up and if you have a gun you have to use it.” That is because the Varrio Frontero Loco “wanted to get rid of Norteños.”
He knew both Javier Gomez and Victor Cervantes, both of whom were members of the Sureño gang, Mexican Loco. When he associated with these gangs he knew they got along “but not that much” at first.
According to Menendez, Varrio Frontero Loco “wasn’t that much organized.” He “never knew who was the shot-caller....” He was aware that the members “used to receive orders from some older guys....” When he asked what they were doing, the members would say “don’t trip... that’s something that I got to do and that’s it.” In his own mind, he thought that Elizalde was the shot-caller because he once heard him giving orders to someone. At one point, Elizalde told Menendez that “in order to be a Sureño you have to get down, you now, don’t have to be a fear of anybody, if you see a Norteño on the street you have to put him on check, beat him up or anything that is in your hands to get him away from Richmond, and to don’t let them come to Richmond, let them stay in San Pablo.” Specifically Elizalde told him that if he saw a Norteño he was to beat him up and if he had a gun to use it. Elizalde once told him that in order to be a Sureño he had to “stick with them all the time and commit sort of a crime that he used to commit—I had to do the crime that they used to do in the week and stick around with them and, you know, do whatever they—they were doing during the week.” This would include “[s]tealing cars and robbing people, shooting Norteños, beat them up.” Mota told him the same thing. He also told him that he had to “earn” a Varrio Frontero Loco tattoo by doing something “big” like kill a Norteño.
On three occasions, he heard Elizalde instruct someone to beat up a Norteño or to look for him. He also heard Elizalde say that Richmond was Sureño territory.
Menendez named a number of Varrio Frontero Loco as those with the most respect in the gang. They were Molina, Azamar, Camacho, Ruelas and Sanchez. He also knew Larry Valencia, who he didn’t think was a gang member.
He felt that he had to do what Elizalde told him to do. He did not, however, think that he had to hunt Norteños in San Pablo. When he went with Mota and Javier Gomez on April 13, 2008, which was the day he shot himself by accident, he did not know that they were looking for Norteños to kill. Nor did he think that was the case on April 26, 2008. He did not realize that they were looking for Norteños to kill until the car did not turn toward the McDonald’s on Broadway as he had expected.
In jail, Menendez received a message on the module where he was housed from the Sureño shot caller. The message laid out in detail how he was to behave while incarcerated. Among other things, he was to contribute money to buy food and supplies for other Sureños, he was not to speak to the police, he was to follow orders from the shot caller and if he was asked, he was to beat people up the shot caller told him to attack. He was also required to give the shot caller a copy of the police report on his arrest as well as any other legal materials in order to permit the shot caller to determine whether he was a snitch. Menendez refused to give these materials to the shot caller and, several days later, he was beat up by several Sureños. He entered protective custody afterwards.
3. Luis Ruelas
Luis Ruelas testified that he was a member of Varrio Frontero Loco for six years until 2008. He was 14 or 15 when he was jumped into the gang. Jose Valencia brought him into the gang.
Ruelas’s testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the grand jury that he had “earned” a tattoo that said “Chap Killa” on his arm. He worked his way up from the bottom of the gang by earning “respect” through shooting and beating up Norteños. Norteños were identified by the color red, while Sureños wore the color blue. Ruelas became close to one of the top people in Varrio Frontero Loco at the time, Victor Valencia. Valencia had secured their territory by running out another gang that had previously been there.
Ruelas was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde “was the main—was the kingpin at that time, but everything else was a mess on the streets.” Elizalde was “moving all the drugs.” With Victor Valencia gone, “[h]e took over all our stuff.” Ruelas did not like Elizalde. Elizalde gave orders to kill people, including one occasion when Elizalde told Ruelas to “kill somebody because they popped his tires.” He didn’t do it because at the time he was working as an informant with the San Pablo police. As part of his deal with the police, he promised not to participate in the commission of any crimes. Elizalde also would send Ruelas out to collect debts using violence.
On one occasion, before he returned to Richmond, Ruelas spoke to Hector Molina, who told him “We miss you.... We bringing the hood back.” According to Ruelas, “the whole part of being a ...