California Court of Appeals, First District, Fourth Division
Sonoma County Super. Ct. No. SCR595589 Hon. Dana B. Simonds Trial judge.
[Copyrighted Material Omitted]
David Y. Stanley under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Masha A. Dabiza and Margo J. Yu, Deputy Attorneys General, for Plaintiff and Respondent.
A jury returned verdicts convicting defendant Raul Vega Vega of, among other things, one count of first degree murder (Pen. Code,  §§ 187, 189) and one count of voluntary manslaughter (§ 192, subd. (a)), together with two special circumstances findings and various gang and
weapons-related sentence enhancements. The court imposed a prison term of life without the possibility of parole.
Defendant now appeals, assigning three forms of error. First, he claims CALCRIM No. 361, which advised the jury it could draw negative inferences if he failed to explain or deny the evidence against him, is unconstitutional and its use in this case was not supported by the evidence. Second, he claims his conviction of a substantive gang participation offense (§ 186.22, subd. (a)) in connection with the manslaughter must be reversed because he acted alone in committing that crime. Third, he claims the abstract of judgment must be corrected to accurately reflect the sentences imposed.
We hold there is no constitutional infirmity in CALCRIM No. 361 and we find adequate support in the record for its use in this case. We further hold, however, that the conviction on the substantive gang offense related to the manslaughter (count five) must be reversed based on developments in the applicable law after trial. Accordingly, we reverse the conviction on count five, order the abstract of judgment corrected, and otherwise affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution’s case
The crimes at issue here arose out of a rivalry within the Surenos, a street gang controlled by the Mexican Mafia. An expert for the prosecution testified that, by 2009, two rival factions of the Surenos had emerged in Santa Rosa, known as Varrio Sureno Loco (VSL) and Angelino Heights (AH). There was an ongoing turf battle between these two groups over which of them controlled Southwest Community Park in Santa Rosa.
The expert identified defendant as a member of the Surenos. Gang members frequently display gang related tattoos, which they must “earn” by doing something to benefit the gang, such as committing crimes or supplying weapons. Defendant had “AH” and “Angelino” tattoos, indicating he was a member of the AH Surenos faction. The police believed defendant’s gang moniker was “Crime Time.”
1. The shooting of Dewey Tucker
On January 12, 2010, the police came into possession of a letter written by an imprisoned VSL member calling for the assassination of three senior members of AH ―Hector Barragan (Barragan), his brother Max Barragan, and Miguel Rubio. The letter suggested that if VSL could get rid of these three “old homies, ” AH would be destroyed. The letter also said Barragan’s
close friend, Christopher Mancinas, should be killed. Mancinas was an influential Sureno who had spent time in prison and had direct ties to the Mexican Mafia.
The detective who obtained the letter shared its contents in a general way with Barragan on the same date he received it. The letter was not news to Barragan; prior rumors of death threats coming from VSL were known to AH. Barragan and Mancinas called a meeting of AH members at Barragan’s house in Santa Rosa to talk about these threats. Mancinas did most of the talking.
Mancinas and Barragan asked defendant―who was 18 years old at the time―to represent AH in connection with the threats. Defendant agreed. Gang experts testified that gangs often select young members to carry out violent crimes, both to give them a chance to “earn their stripes” and to minimize their exposure to punishment (because any sentences imposed on them will likely be lower than their more hardened gang associates would receive).
Mancinas asked defendant to name the person he trusted most to help with the operation, and he chose Javier Carreon-Lopez, a lifelong friend whom defendant loved like a brother. On January 12, 2010, defendant, Carreon-Lopez, Barragan and Mancinas drove to Petaluma, where they retrieved at least three guns. They were in a Chevrolet Tahoe SUV that Mancinas had borrowed from his sometime girlfriend, who lived in Rohnert Park.
The four of them then headed to Vallejo, where a member of VSL named Ramon Ochoa lived. They were planning to target either Ochoa or another VSL member, Vincente Tapia, but Ochoa was the “main target.” For defendant, killing Ochoa would avenge the death of Alejandro Ortega, a member of AH and a friend of defendant’s, who had been killed by VSL in November 2009.
In Vallejo, the four met up with two other AH members called “Smokes” and “Huero, ” who lived in Vallejo and had been staking out Ochoa and Tapia on Mancinas’s instruction. Smokes and Huero had reported back that they knew where one of the VSL members lived. Mancinas gave defendant a loaded gun, a black or grayish semiautomatic handgun, either a.40 or.45 caliber.
When the two AH groups converged in Vallejo they switched cars. From that point, defendant and Carreon-Lopez were in a Honda that Smokes or Huero had stolen in Vallejo earlier that day. They drove to Tapia’s apartment building in two cars, with Carreon-Lopez driving the Honda and defendant in the passenger seat. Barragan and Mancinas were in the Tahoe along with Smokes and Huero.
Both cars stopped outside Tapia’s apartment complex, where Mancinas pointed out a white car coming out of the driveway. He phoned defendant and said Ochoa was in that car and they should follow it. They followed the white car as it left Vallejo and headed south on Interstate 80. Defendant admitted to police that once he caught up to the white car on the freeway, he fired at least two shots at the driver, believing it was Ochoa.
Defendant told police he knew the gunfire struck its intended target because the driver slumped over in the car. The white car, which had just crossed the Carquinez Bridge, collided with the center divider, then swerved to the shoulder of the highway. Defendant and Carreon-Lopez then returned to Santa Rosa, dumping the Honda along the way. Defendant’s brother sent “some girl” to pick them up. Afterwards, they met up with Barragan in a park in Santa Rosa.
Tragically, it turned out, defendant’s shots found the wrong target. What had been planned as a preemptive revenge killing against a gang rival was a case of mistaken identity. The gunshot victim was Dewey Tucker, who had the misfortune of living in the apartment just above Tapia’s. Tucker was a professional musician who was on his way to practice with his band in Oakland. A bullet entered Tucker’s left ear and exited his right ear, killing him at the scene.
2. The stabbing of Juan Carlos Angel-Esparza
About a year after Tucker’s murder, on January 8, 2011, Juan Carlos Angel-Esparza was stabbed to death on the grounds of Kawana Springs Elementary School (Kawana Springs) in Santa Rosa, which is two or three miles from Southwest Community Park. Late that afternoon, Angel-Esparza had been hanging out at Kawana Springs, smoking marijuana and talking about football with his friends Ezequiel Corona and Edgar Sonato-Vega.
Corona and Sonato-Vega, who had no gang affiliation, testified that two men entered the school grounds from the rear of the school. Angel-Esparza approached them, while Sonato-Vega and Corona hung back, continuing to smoke marijuana. One or both of the men asked Angel-Esparza where he was from. In gang culture, asking that question of a suspected gang rival is commonly understood as a verbal provocation, a challenge to fight. In response, Angel-Esparza said, “VSL.”
A fight then broke out between Angel-Esparza and one of the two newcomers. Sonato-Vega told police that defendant was the person with
whom Angel-Esparza was fighting, but at trial he claimed not to know who the other combatant was. At trial Corona also claimed no knowledge of the other combatant. The evidence at trial was similarly mixed as to who issued the original provocation-Angel-Esparza; both defendant and his companion; or just defendant.
Sonato-Vega testified to seeing Angel-Esparza pull a knife as the fight was breaking up, but he did not see a knife in defendant’s hands. Corona testified that he did not see anyone with a knife until after Angel-Esparza and defendant separated, and it appeared Angel-Esparza was hurt. That is when Angel-Esparza pulled out a Dallas Cowboys pocket knife and moved toward defendant with it, as defendant backed away. Toward the end of the fight sirens started blaring. Angel-Esparza and defendant backed away from one another and ran off in opposite directions.
Angel-Esparza ran to the front of the school and collapsed in a breezeway, while defendant and his companion left the area through the rear. Sonato-Vega and Corona went to Angel-Esparza’s side, and he told them to call an ambulance, so they called 911. Sonato-Vega took Angel-Esparza’s Cowboys knife and threw it on the roof of the school, where it was later recovered by the police. Angel-Esparza was taken by ambulance to the hospital, where he died shortly thereafter from three stab wounds, including one directly to the heart and one to the liver.
Before the police arrived, Corona and Sonato-Vega made a plan to say they had not witnessed the fight and had just found Angel-Esparza lying on the school grounds. During questioning later that night, however, Corona eventually admitted to the police that he had heard gang challenges to Angel-Esparza before the fight, had heard Angel-Esparza claim “VSL." and had seen the fight.
At one point, while they were at the police station, Corona and Sonato-Vega were placed in a room alone together, where they were video recorded. Sonato-Vega asked Corona, “Did you tell them it was Raul?” This was the break in the case that first alerted police to defendant’s involvement, as one of the officers was familiar with defendant and his gang affiliation.
Police investigating the stabbing found two knives in the vicinity-one was a pocket knife with a locking blade and a Dallas Cowboys logo on it, which belonged to Angel-Esparza and was found on the roof of the school. It was covered in blood, which proved to be Angel-Esparza’s. Angel-Esparza’s thumbprint was also found on the knife, but defendant’s prints were not. A second knife located at the scene was a blade without a handle, which had no
blood on it. There was a small amount of blood on the pathway near where the fight had occurred, and it proved to be defendant’s.
3. Defendants incriminating statements to
When defendant was questioned by the police two days after Angel-Esparza’s death, he initially denied involvement, but eventually admitted fighting with Angel-Esparza. He claimed the killing was in self-defense because Angel-Esparza pulled a knife. Defendant said he took the knife from Angel-Esparza, but Angel-Esparza had another one. Angel-Esparza said he was a member of ...