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People v. Falaniko

California Court of Appeals, Second District, First Division

July 29, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
NOAESE FALANIKO, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA414815, NA093971 James B. Pierce, Judge.

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         COUNSEL

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         LUI, J.

         Noaese Falaniko challenges his convictions arising out of three separate shooting incidents for one count of first degree murder (Pen. Code, [1] § 187, subd. (a)-count 1), seven counts of attempted murder (§§664, 187, subd. (a)-counts 2, 3, 4, 6, 7, 9, 10), and one count each of shooting at an occupied motor vehicle and at an inhabited dwelling[2] (§ 246-counts 5 & 8). The trial court sentenced appellant to an aggregate term of 330 years to life in state prison, [3] and imposed restitution and parole revocation fines on each count of conviction.

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         Appellant contends (1) his convictions on all counts of attempted murder must be reversed because the use of the disjunctive “or” in the attempted murder instruction permitted the jury to convict without finding specific intent as to each victim; (2) the erroneous inclusion of a reference to the natural and probable consequences theory of aiding and abetting liability requires reversal of all counts of conviction; (3) appellant’s convictions should be reversed due to cumulative error; (4) the erroneous admission of appellant’s involuntary statements to police, which were based on promises of leniency, mandates reversal; and (5) the trial court’s failure to instruct the jury sua sponte on self-defense or imperfect self-defense requires reversal of the attempted murder convictions on counts 6 and 7.

         We affirm appellant’s convictions for murder in count 1, attempted murder in counts 4, 9 and 10, and shooting at an occupied motor vehicle and at an inhabited dwelling in counts 5 and 8. Instructional error compels us, however, to reverse and remand appellant’s attempted murder convictions in counts 2, 3, 6, and 7. In addition, as appellant further contends and the Attorney General concedes, the trial court erred in imposing restitution and parole revocation fines on each count of conviction. We therefore reverse the trial court’s restitution and parole revocation orders.

         FACTUAL BACKGROUND

         The South Street Shooting-Counts 8, 9, and 10

         On April 17, 2012, Edward Coral was with his brothers-in-law, Brandon and Ryan Alaimalo, on the front porch of the Alaimalo home on South Street in Long Beach. About 10:30 p.m., three men in black hoodies standing in the middle of the street started shooting at them. Police recovered seven.45-caliber shell casings and twenty-seven.762-caliber shell casings, consistent with an AK-47 rifle, at the scene.[4]

         Coral was shot in the leg and hip, and suffered considerable nerve damage. Brandon was shot in the arm and chest. Ryan was not injured. The stucco and trim of the house showed several bullet strikes, and there were multiple bullet holes in the security screen and inside the house.

         In recorded interviews with police following his arrest, appellant stated that he had been associated with the Crips gang, Westside Sons of Samoa (“SOS”), for three or four years, and was known within the gang as “Junior.” Appellant

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told police that in April 2012, he agreed to help a fellow Westside SOS member known as “Sonic” retaliate against members of a rival Bloods gang, the Westside Pirus, for shooting at Sonic’s house. Appellant knew Ryan Alaimalo and thought he was a member of the Westside Pirus gang.

         Appellant told police that when he and Sonic arrived at the Alaimalo house there were four or five people outside, all wearing red flannel and red shoes, which confirmed appellant’s belief that they were Westside Pirus.[5] Appellant and Sonic stood in the middle of the street about 15 to 20 feet away from the rival gang members and opened fire. Appellant fired about 30 rounds from an AK-47 with a 32-round magazine that he had purchased that day. He told police he stopped shooting because he was scared and later regretted what he had done.

         The Cherry Park Shooting-Counts 1 through 5

         The night of July 21, 2012, Meki Siafega, Esther Vaafuti, Joe Foster, Branson Foster (“BJ”), and BJ’s wife, Kelly Kese, gathered at Cherry Park in Long Beach for a family barbeque. The group arrived at the park about 5:00 p.m. just as another group, dressed mostly in red, was leaving.

         About 11:30 p.m., Siafega heard a sound like firecrackers. A bullet struck him in the shoulder, and he ducked under a bench. Another bullet hit the side of his leg, and as he tried to crawl away, a third bullet struck the back of his leg.[6] Siafega saw two male shooters, one with long hair, the other with his hair in a bun. He could clearly see sparks from both guns, and they sounded like large caliber firearms. After the shooting had stopped, Siafega saw BJ lying motionless on the ground 30 to 50 feet away. BJ died as a result of multiple gunshot wounds, including fatal wounds to his head and abdomen.

         Vaafuti was sitting on a bench when she heard what she thought were fireworks. Suddenly she felt a sharp pain as a bullet grazed her head, and she fell to the ground. The head wound required seven stitches, and she experienced migraine headaches every day after the incident.

         Kese, who was eight and a half months pregnant, had gone to her car to charge her cell phone. She was sitting in the front seat of the car when two young men passed by on the sidewalk. Kese heard loud popping noises that sounded like firecrackers and turned to see the two young men who had passed her car standing on the sidewalk with guns in their hands, shooting at

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her family. As the two men were walking past Kese’s car after the shooting, one of them fired his gun directly at Kese. The bullet missed Kese but struck the back door of her car. The shooters then ran away.

         Police collected 14 expended.9-mm shell casings, one expended.45-caliber shell casing, and one.45-caliber live round from the scene. There was one bullet hole in Kese’s car door, and police recovered a.45-caliber bullet from the vehicle.

         Arlene Crisostomo was dating appellant in July 2012. On the day of the shooting, appellant and Crisostomo drove past Cherry Park, which was about four houses down the street from Crisostomo’s home. Crisostomo noticed people in the park wearing red clothes whom she believed to be from a Bloods gang flash gang signs in their direction. It appeared to Crisostomo that appellant also saw the people throwing gang signs.

         That night, Crisostomo and appellant were hanging out at Crisostomo’s house. Approximately 10:45 p.m. appellant told Crisostomo he was going out with friends and she should pick him up when he called. Crisostomo left about 15 minutes later to go to a party in Orange County. Appellant called Crisostomo at 11:45 p.m. and asked her to pick him up in Long Beach. Crisostomo did as appellant asked, and they drove back to the party in Orange County. Appellant told Crisostomo he had been at Cherry Park when his friend, “Infant, ” shot at a group of people in the park. Appellant said he was just there to watch and provide backup.

         Appellant was arrested in November 2012. During a conversation recorded when Crisostomo visited appellant in jail, Crisostomo agreed to give the police a false alibi and say that appellant was with Crisostomo at the party at the time of the Cherry Park shooting. Appellant said that he had told the police “the polyma clip” belonged to “Steven, ” whom he described as “half Black half Samoan with a fade.” He added, “if they question you that’s the... Steven I was talking about, ” and explained, “I can’t [have]... the falima clip coming back to me, hell no I’m straight. I’m trying to throw that shit off of me. I already got like gang of shit coming back to me.”

         Crisostomo gave the false alibi to police, but when they accused her of lying, she revealed she had gone to the party alone and picked appellant up later. When appellant offered the alibi to police, he told them he had learned from another jail inmate that a Samoan had been shot at Cherry Park. He also told police he had later overheard two SOS gang members, “Infant Widdit” and “Blackeye, ” admit to committing the Cherry Park shooting. But appellant subsequently bragged to Crisostomo that he had “made up a nigga named Blackeye” when he spoke to the police about the Cherry Park shooting.

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         The Shooting at the Fantasy Gold ...


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