California Court of Appeals, First District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
[As modified May 7, 2015]
Contra Costa County Super. Ct. No. 05-080176-1, Hon. Brian Haynes, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Joseph Shipp, 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, Assistant Attorney General, Jeffrey M. Laurence and Christopher W. Grove, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Vega-Robles of conspiracy to sell controlled substances, attempted robbery, and two first degree murders, and found true gang and firearm enhancements. In People v. Chiu (2014) 59 Cal.4th 155 [172 Cal.Rptr.3d 438, 325 P.3d 972] (Chiu) our Supreme Court held “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” (Id. at pp. 158–159.) Because we cannot conclude beyond a reasonable doubt which theory of liability the jury used to convict defendant of Darrell Grockett’s murder, we reverse his conviction for Chiu error. On remand, the People may either accept a reduction of defendant’s conviction to second degree murder or retry the first degree murder charge under theories other than natural and probable consequences. (Id. at p. 168.) We reject defendant’s other appellate challenges to the judgment.
STATEMENT OF THE CASE
In 2008, the Contra Costa County District Attorney filed an indictment charging defendant and four others with conspiracy to sell narcotic and non-narcotic
controlled substances in violation of Health and Safety Code sections 11352 and 11378, from January 1, 2004 until November 30, 2005. (Pen. Code, § 182, subd. (a)(1)); count 1.) The indictment alleged 19 overt acts under count 1. Overt act Nos. 1 and 2 alleged the sale of methamphetamine by defendants to Robert Lott and by Lott to Tara Sander in 2004. Overt act Nos. 3, 4, 5, and 6 alleged a plan between defendants and Coby Phillips to kill Darrell Grockett on October 7, 2004. Overt acts Nos. 7 through 15 alleged a plan between defendants and Ricardo Ruiz to kill Marcelino Guzman-Mercado on December 3, 2004. Overt act No. 16 alleged the burglary of Guzman-Mercado’s residence by defendant and two other codefendants. Overt acts Nos. 17 through 19 involved the nonfatal shooting of Jose Hernandez on February 21, 2005 by defendant with the assistance of Thomas Covey.
The indictment also alleged the conspiracy described in count 1 was committed to benefit two criminal street gangs, Family Affiliated Irish Mafia (FAIM) and Sureños. (§ 186.22, subd. (b)(1).)
In addition, the indictment alleged two counts of murder (§ 187, subd. (a); counts 2 [Grockett] & 3 [Guzman-Mercado]), attempted robbery (§§ 211/212.5/664; count 4), residential burglary (§ 459; count 5), grand theft (§ 487, subd. (a); count 6), and attempted first degree murder (§§ 187, subd. (a)/664; count 7 [Hernandez]). The indictment alleged counts 2 through 6 were committed to benefit the FAIM and Sureños criminal street gangs. (§ 186.22, subd. (b)(1)) And, in connection with counts 2, 3, and 7, it alleged a principal intentionally used and discharged a firearm causing death or great bodily injury for the benefit of the Sureños and FAIM street gangs. (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
On March 26, 2012, the court granted defendant’s motion to sever count 7, the attempted murder charge. The overt acts related to that count were not severed.
On June 8, 2012, the jury convicted defendant of counts 1 through 4 (conspiracy, murders of Grockett and Guzman-Mercado, and attempted robbery of Guzman-Mercado), and found both murders to be of the first degree. The jury found true the allegations that defendant committed (1) the conspiracy for the benefit of the Sureños and FAIM gangs, (2) the Grockett murder for the benefit of the FAIM gang, and (3) the robbery and murder of Guzman-Mercado for the benefit of the Sureños gang.
With respect to the firearm allegations, the jury found true that a principal party intentionally discharged a firearm during the Grockett murder and that
the offense was committed for the benefit of the FAIM gang. The jury found the cognate allegation not true with respect to the Guzman-Mercado murder and the Sureños gang, but did find true the allegation a principal party used a firearm and committed the offense for the benefit of an unspecified criminal street gang.
The jury acquitted defendant of counts 5 and 6, residential burglary and grand theft, respectively.
The court sentenced defendant to an indeterminate prison term of 85 years to life. Defendant filed a timely notice of appeal.
STATEMENT OF FACTS
I. Prosecution Evidence.
A. Defendant’s drug trafficking operations.
In 2004, Ricardo Ruiz lived in the Richmond/San Pablo area and knew Juan Delatorre, defendant’s cousin, Primo, his brother, Sergio, and the brothers Rudolfo and Alejandro Figueroa. Before and during 2004, Ruiz was affiliated with Richmond Sur Trece (RST), a Sureño gang. Delatorre was also involved in RST, and Rudolfo Figueroa was affiliated with it to the same extent Ruiz was. Ruiz believed Alejandro and Rudolfo Figueroa were also affiliated with the Sureños.
Ruiz met Sergio Robles before he became acquainted with defendant or Primo. Ruiz’s primary relationship was with Sergio. Sergio was involved in selling “crystal” and “coke, ” which he obtained in Los Angeles. Defendant was involved in drug sales with Sergio. Defendant’s job was “selling dope.” Ruiz knew this because “they used to come to my house all of the time and did their business there and I seen it.” Also, defendant had all kinds of cars: “Mercedes, Jaguars, Beamers, ... Escalades.”
Ruiz worked for both Sergio and defendant. He assisted them in their drug sales by picking up and delivering the drugs. He facilitated a drug sale from Sergio to Coby Philips. However, he did not deal drugs with or buy drugs from Coby Philips. Both Sergio and defendant asked Ruiz to transport drugs from Southern California to the north, but Ruiz declined to do so.
Ruiz also acquired methamphetamine from defendant, Sergio and others, which he resold in small quantities. Defendant and Sergio did not share their drug profits with Ruiz. Ruiz did not share his profits from these sales with
anybody. Primo was also involved in the drug sales. RST members were involved in selling crystal methamphetamine and marijuana.
Defendant was not in RST. He worked with his brother and “was higher on the food chain than a street dealer.” In 2003 and 2004, defendant and his brother dealt in pound quantities. According to Ruiz, Delatorre was using and selling drugs at the same time. Initially, he got drugs from Ruiz, but eventually he got them directly from defendant and Sergio and became part of the distribution ring.
Ruiz knew who Coby Phillips was because Phillips’s father and grandparents lived on the same street in San Pablo as Ruiz. However, he did not associate with Philips because Hispanic and White groups do not associate. Phillips had a leprechaun or a shamrock tattooed on his face near his eye. Ruiz was present when Sergio talked to Phillips about a drug transaction. Ruiz went with defendant and Sergio a couple times to Phillips’s house in Vallejo to drop off drugs. Ruiz also went with Primo to sell drugs at different places. On one occasion, Ruiz guarded a car containing drugs on Bush Street in San Pablo at the request of defendant and Sergio. Ruiz went with defendant a couple times to collect a debt owed by Delatorre for a pound of methamphetamine.
Stacey Taylor married Coby Phillips in November 2003. She had known him since she was 13. She knew defendant as Phillips’s friend “Carlos, ” who supplied him with methamphetamine, which Phillips resold to other drug dealers. Phillips was a member of the FAIM gang, as were Thomas Covey, Matt Donohue, Jason Donohue, and about 100 others. Phillips had shamrock tattoos on his face and shaved head. The large shamrock on the back of his head had the letters FAIM in the middle of it, and he had a swastika tattooed on the top of his head. Taylor concluded drug dealing was the primary activity of the gang. Taylor knew Phillips obtained methamphetamine from defendant and Sergio (as well as a couple of others) in 2004 because she was with Phillips and a lot of the time it was at their house. Phillips bought varying amounts of product from defendant, sometimes as much as ten pounds. She did not directly know where defendant got the methamphetamine, but she knew it came from Mexico. Phillips resold “sales quantities” (as opposed to “street level quantities”) of the drugs, typically to other FAIM members.
Taylor sometimes counted the drug money for Phillips. During 2003 to 2005, the most cash Taylor had ever seen Phillips with in connection with drug sales was about $100, 000. Taylor knew Phillips also received guns as payment for drugs because she was present when Phillips discussed drugs for guns with defendant and Sergio. Taylor knew that her brother, Clayton Cates,
transported drugs because she was there when he left and when he returned. She also went with Phillips a few times to drop off or pick up a pound of drugs.
Taylor understood she was testifying under a grant of immunity stemming from a murder prosecution in Solano County. She had lied to the police when she provided Phillips with an alibi for the Grockett murder. She had previously committed perjury in one jury trial to exonerate Phillips from domestic violence charges and at another jury trial in Solano County. She lied at the Solano County trial because she was afraid of retaliation if she testified truthfully. She felt safe after relocation and did not need to worry about something happening because of her testimony in the current case. She received $1, 500 a month for rent and other incidentals for herself, her four children, and Tim Covey, with whom she still lived, from the state’s witness relocation fund. Her brother, Clayton Cates, pleaded guilty to voluntary manslaughter and received a one-year jail sentence in the Solano County case. Cates also receives relocation money.
Taylor began a romantic relationship with Tim Covey a couple of months after Phillips went to jail on the current charges. Taylor and Phillips got back together after Phillips was released from jail for lack of evidence, but then separated for good in early 2007 after the domestic violence incident on New Year’s Eve in 2006. At that point, she and Tim Covey moved away and stopped associating with defendant and the rest of the group because everyone was upset about her relationship with Covey. However, she remained on friendly terms with Jamie Beckwith, defendant’s girlfriend.
Cates testified that from 2004 to 2007, Phillips made money by selling methamphetamine, and Cates was “involved in some way with it.” Cates participated in Phillips’s drug trafficking activities. According to Cates, Phillips obtained his methamphetamine from defendant and Sergio. Cates met defendant and his brother through Phillips. On three or four occasions, Cates transported drugs from Los Angeles to the Bay Area for Sergio. Sergio provided Cates with the car he drove to Los Angeles. Cates would leave the car at a predetermined s pot in Los Angeles and pick up the car later that day. He then drove it to Sergio’s house in Benicia. Cates saw people take drugs from the panels inside the car. Cates was paid about $3, 000 per trip. Cates knew Phillips got his drugs from Sergio because Cates heard Phillips talking
about it. Cates got drugs from Phillips and delivered them to Stephen Buchanan, whom he knew through Phillips.
Cates knew Phillips and the Covey brothers were in the FAIM gang because of their tattoos. Phillips had shamrocks tattooed on his face and head. Thomas (Bubba) and Timothy Covey had FAIM tattooed on their arms. Buchanan was also a gang member and had gang-related tattoos. Cates denied he was ever a member of FAIM. He did not have any tattoos. In 2008, Cates was arrested on drug-related charges involving Cates’s delivery of drugs to Buchanan. He was also “in trouble” on a 2007 murder charged out of Vallejo that also involved his sister. Cates pleaded guilty to drug trafficking in the Buchanan matter, received a suspended sentence of 11 years, and was placed on probation. He was given immunity to testify in the Vallejo matter. He was also in witness relocation.
Timothy Covey was a member of the FAIM gang, which his brother Tom cofounded. Covey had several tattoos on his body, including one on his arm that said FAIM and one on his shoulder that said FAIMLY. The gang recruited members through the prison system. Belonging to the gang made “things a lot easier” for Covey when he was in Contra Costa County jail. In late 2004 to early 2005, Covey personally knew about 30 FAIM gang members.
The purpose of forming the gang was to use “muscle” to “help our drug trade.” Covey knew that Phillips purchased drugs from defendant when he was not in jail because he witnessed the transactions. Covey started purchasing methamphetamine directly from defendant after Phillips went to jail. Defendant would “front” Covey a pound or two of methamphetamine at a time which Covey would then resell to “[m]ostly sellers, ” and then pay defendant out of the sales proceeds. At the time, Covey considered defendant “family.” By the time of trial, Covey no longer considered him a friend. Covey still owed defendant money for drugs, but he had made no effort to pay him back. Covey testified that if defendant were released, “we’d have to deal with it[, ] obviously.”
Covey had a falling out with some members of FAIM after he became romantically involved with Stacey Taylor, Phillips’s wife.
In the same Solano County case in which Stacey Taylor testified, Covey refused to testify against a FAIM member. He made no deal for immunity from prosecution in Contra Costa County. “I’m just telling the truth.” The United States government relocated him and his family to a different state after he began to receive threats. His rent and incidental expenses were paid by Solano County. He felt he needed to relocate before he could testify.
Jamie Beckwith was defendant’s girlfriend from 2003 to 2007, and she had two daughters with him. At that time, defendant did not have a job; he sold drugs which he told her, and she believed, he obtained from Mexico. He was known as Carlos or by the street name Calacas. She knew his brother, Sergio, was also involved in selling drugs from being around them all of the time and overhearing conversations. Carlos and Sergio worked together, but defendant was “more of the leader.” Sergio sold more cocaine, whereas defendant sold crystal methamphetamine by the pound. Their cousin, Primo or Josue, worked for defendant in the drug business, delivering and picking up “money and stuff like that.” The largest quantity of methamphetamine Beckwith heard defendant discuss was 30 pounds, and the greatest amount of money was around $400, 000.
Beckwith also knew Coby Phillips, who bought drugs from defendant. Phillips did not hang out with people who were not White or Irish, except defendant. Timothy Covey associated with Phillips. After Phillips went to jail in late 2004 or early 2005, Phillips had Covey “take care of [Phillips’s] business and take care of his household duties, ” and Covey started doing drug transactions with defendant. Beckwith knew Ricardo Ruiz “through [defendant’s] people that he knew and met up with.” Beckwith socialized with Phillips’s wife, Stacey. Both Tim Covey and Stacey were around when drugs were being discussed.
Beckwith saw defendant, Sergio, Primo, and Tim Covey carrying guns. In 2004 and 2005, defendant “always” carried a gun, which he kept in the center console of his vehicle.
Beckwith knew, by “talking to everybody, ” that Cates picked up drugs somewhere in Los Angeles for both defendant and Sergio.
In 2005, defendant told Beckwith there was a warrant for his arrest, and he left for Mexico. Covey later drove Beckwith to Mexico to see him. Defendant was arrested in 2007 when he returned to the United States. Taylor and Covey took Beckwith to see him in jail in Petaluma.
B. Murder of David Grockett-October 7, 2004.
On October 7, 2004, then Contra Costa County Sheriff’s Detective Shawn Pate noticed a Chevrolet pickup truck parked at a pullout along Crockett Boulevard. The truck was locked; the keys were inside the truck. Darrell Grockett’s body was lying face up on the ground behind it. Grockett had tattoos on his forehead and upper torso. He had $2, 000 in his left front jacket
pocket. He had gunshot wounds to the mouth, finger, and left torso. Eleven cartridge casings and six bullets were recovered from the scene. Some of the rounds had passed through the front of the body into the dirt beneath. Eleven cartridge cases, 10 bullets, and one bullet fragment were submitted the crime lab for ballistics analysis. The analysis established three rounds were fired from a.38 or.357 caliber firearm and seven rounds were fired from a 9-by-19 millimeter gun. From the blood stains at the scene, it appeared that Grockett first was shot while standing and then shot additional times while lying on the ground.
i. Events Leading Up to the Murder.
Stacey Taylor testified Darrell Grockett was a friend of Phillips who had attended their wedding. Grockett had shamrock tattoos and was gang-affiliated with the Aryan Brotherhood. Taylor witnessed drug deals between Phillips and Grockett. Grockett would come to their house and hand Phillips money and receive drugs in return. In October 2004, both Grockett and Phillips were out of custody. Phillips told Taylor they had a disagreement over drugs because Grockett did not want to pay what Phillips was asking.
Around 7:00 or 8:00 p.m. on October 7, 2004, Taylor and Phillips went to a restaurant overlooking the Carquinez Bridge known as The Dead Fish. Before they left for the restaurant, Phillips told Taylor he was going to meet with Grockett. Phillips said that he and the other people he was meeting at the restaurant were going to go shoot Grockett. According to Taylor, when she and Phillips arrived, defendant was there with his wife Jamie Beckwith, Sergio, and Primo. Phillips, defendant, Sergio, and Primo left the restaurant a short time later. According to Taylor, she and Beckwith remained at the restaurant.
ii. Events After the Murder.
About 45 minutes to an hour later, Phillips, defendant, and the others returned to the restaurant. Taylor and Phillips went to a house in Rodeo, where Phillips wrapped some things in rags and gave them to a woman named Amy Abeyta. Taylor knew the items were the guns used to shoot Grockett because Phillips told her he had to get rid of them. They did not stay at their home in Vallejo that night but, instead, went to a hotel in Vacaville. The next day they went to Taylor’s parents’ house in Shingletown in Northern California, where they had sent their children a few days earlier.
Phillips later asked Taylor to attend Grockett’s funeral to avoid suspicion. They subsequently moved to a house in Cordelia, which Phillips rented from Sergio, who supplied Phillips with drugs. Phillips put bulletproof glass over the sliding glass door and windows. Defendant and Sergio both visited the Cordelia house.
In 2004, Sally Sinclair and Darrell Grockett came up with a plan to sell methamphetamine together. Grockett had a connection with someone for getting methamphetamine, and Sinclair was going to buy five pounds of methamphetamine from him for $35, 000. In late September or early October 2004, she gave him a $16, 000 advance, but the deal was postponed.
A few days later, Grockett came to her house with his girlfriend, Tara. Sinclair gave him another $13, 000. Around 8:00 p.m., Grockett’s cell phone rang and he stepped outside to take the call. Shortly thereafter, he came back inside and said he would be right back. He left without Tara, without the money, and without saying where he was going. Sinclair and Tara waited for him for hours at a local bar. Tara tried to call Grockett numerous times without success. At some point, Sinclair spoke to Grockett’s roommate, Matt Baker, on the telephone. Baker said Grockett was dead.
Sometime in October 2004, Ruiz had a conversation with Primo in front of Ruiz’s house on Bush Street in San Pablo about a shooting Primo witnessed the night before. Primo was scared and shaken up about what he saw. He said his cousin Calacas and Coby shot a man near Rodeo on Highway 4. Primo said the man they shot had tattoos on his face. At the time Primo was telling Ruiz about the shooting, defendant and Coby were standing across the street. After the conversation, Ruiz left and Primo rejoined defendant and Cody.
Timothy Covey testified he heard defendant and Primo joking in Spanish about Grockett’s death after it happened. They were talking “about the guy with tattoos all over his face and making gestures. Like, bang, bang, bang.” They made shooting gestures with their hands. Covey knew that Grockett had tattoos all over his face. According to Covey, the day after the Grockett shooting, defendant’s and Phillips’s families left town for Stacey Taylor’s grandmother’s house. When defendant and Phillips returned after the Grockett killing, “everybody was pretty much let known that we needed to start carrying guns and we were all hanging around Coby’s house in Vallejo.” By “we, ” Covey meant a close-knit group of FAIM members who were Phillips’s associates. Shortly thereafter, Phillips moved to a house in Cordelia and put thick Plexiglas on all the sliding glass doors.
C. Murder of Marcelino Guzman-Mercado-December 3, 2004.
In response to a call at 9:40 p.m. on December 3, 2004, Contra Costa County Sheriff’s Deputy Xavier Shabazz was dispatched to 5955 North
Arlington Boulevard, in San Pablo, where he located Guzman-Mercado’s body. The victim’s shirt and jacket were pulled up, exposing his torso. He had a gunshot wound in his left side under his armpit. There were also abrasions on the victim’s back and he was missing a shoe. The deputy located a matching shoe in the middle of the street about a half mile south of the body.
Guzman-Mercado died of a single gunshot wound to the chest, which entered his chest and exited his back. He had bruises and abrasions on his torso, face, and chest consistent with impact on a rough, stony, or gravel surface. He had $680 and his house keys on his person, as well as a phone number with a 650 area code on his belt. The phone number led to a relative and the eventual discovery of Guzman-Mercado’s address.
Guzman-Mercado lived in an apartment complex at 2389 Aberdean Way, Richmond. Police used the house key found on Guzman-Mercado’s body to enter the apartment. The exterior door frame appeared to have been recently repaired and freshly painted. A crowbar or tire iron was on a countertop inside.
i. Events Leading Up to the Murder.
Sometime in December 2004, defendant was at Taylor’s house in Fairfield when he said he needed to get some money for Christmas and that he was going to rob someone of drugs. Defendant’s girlfriend, Jamie Beckwith, and possibly Tim Covey, were present during the conversation. According to Taylor, defendant said “he knew ...