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People v. Lara

California Court of Appeals, Third District, San Joaquin

March 6, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
ALBERTO FRANCISCO ORTEGA LARA et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from a judgment of the Superior Court of San Joaquin County Super.Ct. Nos. SF116240A, SF116240B, SF116240C, William D. Johnson, Judge. Reversed in part and affirmed in part.

          Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Alberto Francisco Ortega Lara.

          Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Issiah Flores.

          Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant Aurelio Espinoza, III.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Michael P. Farrell, Assistant Attorneys General, Daniel B. Bernstein and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

          HOCH, J.

         Stephen Lucero was shot to death several hours after he and fellow gang members, defendants Alberto Francisco Ortega Lara, Issiah Flores, and Aurelio Espinoza, III, (collectively, defendants) burglarized a house in Stockton, taking an assortment of electronics and firearms from the house. Each defendant was charged with Lucero's murder (Count 1), residential burglary (Count 2), and gang participation (Count 11); defendants Flores and Espinoza were also charged with possession of a firearm by a minor and possession of ammunition by a minor (Counts 6 and 7); Flores was further charged with additional counts of possession of a firearm by a minor and possession of ammunition by a minor (Counts 9 and 10) and receiving stolen property (Count 8).[1] The murder charge alleged a principal was armed with a firearm during the commission of the offense. Gang enhancements were attached to Counts 2, 6, and 8.

         Defendants were tried together before two separate juries, one determining Lara's guilt, the other determining that of Flores and Espinoza. Each defendant was convicted of murder (first degree as to Lara, second degree as to Flores and Espinoza), residential burglary, and gang participation. Flores was also convicted of the remaining counts charged against him; Espinoza was not convicted of the remaining counts charged against him. With respect to the counts of conviction, all enhancement allegations were found to be true. Lara was sentenced to serve an indeterminate prison term of 25 years to life for the murder plus a consecutive determinate term of 12 years. Flores was sentenced to serve an indeterminate prison term of 15 years to life for the murder plus a consecutive determinate term of 12 years. Espinoza was sentenced to serve an indeterminate prison term of 15 years to life for the murder plus a consecutive determinate term of 10 years.

         On appeal, defendants (1) challenge the sufficiency of the evidence to support their murder convictions. They also (2) challenge the sufficiency of the evidence to support their gang participation convictions and the gang enhancement findings, addressing the import of our Supreme Court's recent decisions in People v. Prunty (2015) 62 Cal.4th 59 (Prunty), People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) in three rounds of supplemental briefing. We conclude there was insufficient substantial evidence to support Lara's first degree murder conviction, requiring reduction of that conviction to second degree murder. The evidence was also insufficient to support second degree murder convictions as to Flores and Espinoza, requiring reversal of their murder convictions.[2]With respect to the gang evidence, we conclude the evidence admitted against defendants was sufficient to support the gang convictions and enhancement findings notwithstanding the additional “associational or organizational connection” requirement of Prunty. (Prunty, supra, at p. 71.) However, as we explain, because evidence establishing that required connection, as well as gang membership on the part of Flores and Espinoza, was admitted in violation of Sanchez, supra, 63 Cal.4th 665, and because admissions made by defendants during booking interviews were admitted against them in violation of Elizalde, supra, 61 Cal.4th 523, we must reverse the gang crime convictions and enhancements for these constitutional errors.[3]

         Lara makes a number of additional claims of error that relate solely to his murder conviction. Specifically, he asserts (3) the trial court prejudicially erred by providing the jury with two erroneous instructions relevant to the natural and probable consequence theory of murder, (4) the trial court also prejudicially erred by failing to provide the jury with a unanimity instruction because the prosecution relied on multiple factual scenarios to support the murder charge, (5) the trial court further erred by failing to instruct the jury on attempted murder as a lesser included offense to murder, (6) Lara's trial counsel provided constitutionally deficient assistance by failing to request the jury be instructed regarding the effect of voluntary intoxication on Lara's ability to formulate the intent to kill or to aid and abet the murder, and (7) the prosecutor engaged in prejudicial misconduct by arguing inconsistent theories of the facts surrounding Lucero's death to the separate juries. We need not determine whether any of these assertions of error would have required reversal of Lara's first degree murder conviction because we have already determined that conviction must be reduced to second degree murder for insufficiency of the evidence. With respect to the validity of that reduced conviction, we conclude the foregoing assertions either lack merit or are harmless.

         Finally, we address two remaining claims, one raised by Flores and Espinoza and the other raised by Espinoza alone: (8) the prosecutor engaged in prejudicial misconduct by arguing prosecutors are “advocates of the truth”; and (9) the trial court abused its discretion when it denied Espinoza's motion for mistrial, made after the prosecutor failed to redact certain references in Espinoza's police interrogation to his having previously been arrested for robbery. With respect to these claims, we conclude the prosecutorial misconduct claim does not require reversal. Nor did the trial court abuse its discretion by denying Espinoza's motion for mistrial.

         In sum, with respect to Lara, we modify the judgment to reflect conviction of second degree murder and reverse his gang participation conviction and the gang enhancement attached to the burglary count, otherwise affirm, and remand the matter for resentencing. With respect to Flores and Espinoza, we reverse their second degree murder and gang participation convictions, as well as their gang enhancements, otherwise affirm, and also remand their matters for resentencing.

         FACTS

         The Burglary

         Because defendants concede they were appropriately convicted of committing a burglary on the night of October 30, 2010, we dispense with a detailed recitation of the evidence establishing their commission of this crime. The following summary will suffice to place the murder in context.

         Lara was living at his grandmother's house with his girlfriend, Veronica Calvetti. The house had two driveways; the main driveway on the right of the house had a built-in carport covering the back of the driveway and a separate stand alone carport covering the front of the driveway. A blue minivan was parked under the rear carport, next to the front door. A large white truck was parked under the front carport, closer to the street.

         The night of the burglary, Lara was hanging out in the main driveway beneath the carports (carport area) with fellow gang members Lucero, Flores, and Espinoza.[4] The four were drinking beer and smoking marijuana. Eventually, the party moved to the backyard, where they discussed breaking into a house one street away, behind the house that was immediately across the street. The plan was for Lucero to knock on the front door to make sure no one was home. Then, Flores and Espinoza (14 years old at the time) would act as lookouts while Lara (19 years old) and Lucero (32 years old) broke into the house. Calvetti, who was present for the conversation, decided to join in the endeavor as a lookout, freeing Flores up to enter the house with Lara and Lucero.

         The burglary happened shortly before midnight. As planned, after it was determined no one was home, Lara, Lucero, and Flores entered the target house's backyard by breaking through a fence and then entered the house itself through a bathroom window. Once inside, they unlocked the back door and began carrying property back to Lara's house, depositing the stolen goods in Lara's backyard. Four trips to the house netted the burglars four flat screen televisions, two laptop computers, a portable DVD player with a monitor, a digital camera, a 35mm camera, two car rims, a Mossberg shotgun, and a non-operational.38-caliber handgun.

         During the second or third entry into the house, a friend or cousin of Lucero, who went by the nickname Diablo, pulled up in a blue van and parked across the street from Lara's house. When Diablo arrived, he handed Lucero a handgun and joined in at least one trip inside the target house, carrying out one of the flat screen televisions. After the burglary was complete, Lucero gave the handgun back to Diablo. Diablo then joined the original burglars in Lara's backyard, where they discussed dividing up the loot. Lara and Espinoza were each to keep one of the televisions, Lucero was to keep the shotgun, and Flores was to keep the.38-caliber handgun. Lara and Diablo then got into a heated argument because Diablo wanted to take one of the televisions, while Lara objected that “he didn't really do anything” to deserve any of the stolen items. Ultimately, Diablo settled for a couple of smaller items and left Lara's house.

         The four original burglars returned to the carport area while Calvetti went inside the house and retired to Lara's bedroom. Sometime later, Lara and Lucero carried the remaining stolen items, with the exception of the car rims, to Lara's bedroom. They then returned to the carport area to continue drinking and smoking marijuana.

         The Murder

         Lucero was murdered at about 5:30 a.m. He was shot multiple times in the carport area, pushed to the ground and kicked, dragged by two men to the sidewalk in front of a neighboring house, and then shot several more times by the passenger of a car that pulled up next to him as he lay bleeding on the sidewalk. Multiple witnesses saw or heard portions of these events as they unfolded. Because defendants challenge the sufficiency of the evidence to support their culpability for the murder, we summarize these witness accounts in detail.

         Calvetti testified she was in Lara's bedroom when she heard an argument coming from the carport area. As far as she knew, defendants and Lucero were the only people at the house, aside from herself and various family members who were inside. During the argument, Lara yelled: “Nigga, give me the gun” or “Nigga, give me back the gun.” Someone also yelled: “You don't want this, Nigga.” Calvetti did not specify whether or not Lara made the latter statement. Calvetti also heard Flores say: “Calm down.” According to Calvetti, she did not recognize two voices involved in the argument. Seconds later, Calvetti heard four gunshots. She went to a window at the front of the house that had a partially obstructed view of the carport area, and saw Lucero being pushed to the ground and kicked. While she initially testified defendants were involved in this altercation, she then clarified she saw only shadows. However, after reviewing her preliminary hearing testimony, Calvetti testified the person who kicked Lucero was wearing a white shirt and each of the defendants was wearing a white shirt while hanging out after the burglary.[5] She also testified she did not see anyone other than the defendants in the carport area while Lucero was being pushed and kicked. But again, she admittedly saw only shadows and a white shirt at this point in time. As Lucero lay on the ground in the carport, Calvetti heard him ask Lara to call the police, using Lara's first name: “Albert call the cops.” While Calvetti initially denied Lara came inside the house at this time, during the prosecution's redirect examination, after being reminded of her preliminary hearing testimony, she testified Lara did briefly come inside the house before returning outside and he had blood on his sweatpants when he did so.

         A short time later, Calvetti heard additional gunshots that did not come from the carport area. Calvetti testified she was also at the front window when she heard these shots. She then noticed a four-door white car, “an old Lincoln or something, ” parked in front of Lara's house. Flores and Espinoza got into this car before it drove away toward the west.[6]

         According to Calvetti, Lara again came inside the house after the second round of gunshots, but before Flores and Espinoza departed in the white car. He was “crying, ” “hysterical, ” “pacing back and forth, ” and “walking in and out” of the house. After three or four of these trips outside, Lara went into the kitchen, where he wiped off his hands with a towel, took off his shirt and sweatpants, ran some water over them in the kitchen sink, and threw them in a basket in the laundry area near the kitchen. While Lara was doing this, Calvetti noticed he had a small cut on his knee. Lara then changed his clothes. Calvetti also testified Lara used her cell phone to call 911, but hung up before the call connected. Her testimony was unclear as to whether this happened before or after he changed his clothes. At some point after Lara aborted his call to 911, Calvetti made the call herself.

         We also note Calvetti testified she saw Lara holding what she believed to be a.45-caliber handgun after the burglary, although she admitted to knowing very little about guns. She further testified she did not see any dark cars parked in front of Lara's house the morning Lucero was killed. These cars will become important later.

         After the first round of gunfire and physical altercation in the carport area, Lucero was dragged to the sidewalk in front of an adult care home next door. Remedios Garcia witnessed the dragging from the kitchen window of another adult care home across the street. Garcia, who worked at that care home, testified she awoke to the sound of gunfire, ran to the kitchen window, and “saw two men dragging another man.” The men doing the dragging were wearing white polo shirts and baseball hats. After depositing Lucero in front of the adjacent care home, they ran away toward the west. Garcia described them as Mexican and estimated their ages to be “around 25, ” adding during cross-examination she would not have confused them for young teenagers. She initially testified she knew Lara from across the street and he was not one of the men dragging Lucero. However, during the prosecution's redirect examination, Garcia admitted she did not see their faces well enough to know whether or not Lara was one of them. After seeing these men run away, Garcia noticed a “long white car” parked in front of Lara's house. A man wearing a black jacket and dark beanie was standing in the street next to this car. Garcia did not get a good look at his face either. While Garcia did not see this man get into the car, he was no longer in the street when the car drove in the same direction as the two men who ran away. Garcia then left the window to tell her sister, who was in another room, what had happened. As she did so, she heard additional gunfire and returned to the window, where she saw the same white car heading in the opposite direction.[7]

         William Stokes, who lived at the care home where Garcia worked, was outside smoking a cigarette when Lucero was murdered. Stokes suffered from schizophrenia, but was taking medication that alleviated his symptoms. He testified he was not impaired the morning of the murder. As Stokes sat on a milk crate toward the back of the care home's driveway, he heard the sounds of an argument coming from somewhere across the street. A loud voice said: “You don't want this, [expletive].” Stokes testified the voice was “kind of high-pitched” and sounded like that of a teenager. Stokes then heard several gunshots, a brief pause, and another round of gunfire. He explained the latter round of gunfire sounded “muffled.” Due to his position in the back of the driveway, and the presence of a van parked in the front of the driveway, Stokes was unable to see what was happening across the street and did not try to get a better look for fear of being shot. However, according to Stokes, when he first sat down to smoke his cigarette, he noticed two “small cars, dark color, ” were parked across the street in front of Lara's house. When police questioned Stokes following the murder, he stated he watched these cars park in front of Lara's house shortly before the argument.

         Multiple calls were received by 911 dispatchers regarding the shooting. One of these calls came from Lucero. After being dragged to the sidewalk in front of the adult care home next door, Lucero managed to pull out his cell phone, dial 911, and say to the dispatcher, “I've been shot, ” before the second round of gunfire ended his life. These shots could be heard over the phone. Another call came from a man who lived a few houses to the west of the adult care home where Garcia worked. The man identified himself as Mike and told the dispatcher he heard gunshots, went outside his house and saw a gold Buick LeSabre-type car driving away to the west. The car contained two or three occupants who were either Black or Hispanic. Mike then saw a man lying on the sidewalk down the street to the east. The same car came back down the street in the opposite direction and stopped next to the man on the sidewalk. At this point, the front passenger got out of the car, stood over the man, and fired about five shots at point blank range. Mike did not testify at trial.

         Police Investigation

         Police and emergency medical personnel arrived within minutes, but Lucero was already dead. He sustained a total of 10 gunshot wounds and multiple blunt force injuries. Six bullets struck him in the head from close range; four bullets struck his extremities, three of which were fired from a distance of greater than two feet. Four of the six head wounds would have been immediately fatal, while the other two also could have killed Lucero. Of the bullets that struck Lucero's extremities, one entered his right calf, causing several bone fractures and severing large blood vessels. This wound also had “a lethal capacity, ” but only “if left unattended.” Based on the medical examiner's testimony, combined with the testimony and statements of witnesses who saw or heard the events described above, it is reasonable to infer Lucero sustained most, if not all, of the gunshot wounds to his extremities and the blunt force injuries while in the carport area, while the immediately fatal head shots were sustained while he lay on the sidewalk in front of the adjacent adult care home.[8]

         The physical evidence found at the scene indicates the same gun fired all of the shots. Six.40-caliber shell casings and multiple bullet fragments were located around Lucero's body. Three.40-caliber casings were found in the street in front of the carport area. In the carport area, police found additional bullet fragments, a live.40-caliber round, and a.40-caliber magazine containing additional live rounds; no corresponding weapon was found.[9] Six of the casings were compared by a firearms expert, who determined five were definitely fired from the same gun and the sixth was likely fired from the same gun. All of the bullet fragments, including several that were recovered from Lucero's brain during his autopsy, were consistent with having been part of a.40-caliber bullet. Those fragments that were amenable to a rifling analysis were determined to “most likely” have been.40-caliber bullets.

         Lara remained at his house when police arrived and began their investigation. He was taken into custody and questioned by detectives. Two additional interviews were conducted the following day. We provide a summary of Lara's various statements later in this factual recitation, after setting forth his trial testimony in some detail. When Lara was taken into custody, a white t-shirt he was wearing that had a blood stain on it was collected as evidence. Lara also had small cuts on his hands, including his knuckles, and a small cut on one of his knees.

         Lara's house was searched the morning of the murder. In addition to the stolen items taken during the burglary, police found the towel Lara used to wipe his hands while in the kitchen that morning, as well as a white polo shirt and gray sweatpants, all wet, in the bottom of a clothes basket next to the kitchen. Each of these items tested positive for the presence of blood. A DNA analysis indicated Lara's blood was on the towel, while Lucero's blood was on the sweatpants. DNA was not able to be extracted from the blood stain on the polo shirt. However, Lucero's blood was also on the white t-shirt collected from Lara when he was taken into custody.

         Flores and Espinoza were arrested two days after the murder. They were also interviewed by detectives. With respect to their statements, it will suffice to note each denied being present at Lara's house during the murder; and, while Espinoza eventually admitted participating in the burglary, Flores also denied involvement in that endeavor.[10]During a search of the apartment where Flores lived with his mother and sisters, police found the non-operational.38-caliber handgun taken during the burglary, which was located inside a pocket of a pair of jeans that was inside a plastic bin[11] About an hour after Flores was taken into custody, an officer who was watching Flores's apartment noticed a group of people, including Flores's older brother Ray, entering a different apartment in the same complex. When that apartment was later searched, police found three live.40-caliber rounds.[12]At some point, Flores's mother was also questioned by police. She stated Ray owned a small, four-door white car that looked like an older Jeep. At trial, she testified the car belonged to Ray's girlfriend and was sold before the murder occurred.

         Lara's Testimony

         Lara testified in his own defense. Lara testified he and Calvetti were at his house the day of the burglary. That morning, Lara drank some beer and smoked some marijuana. Flores and Espinoza arrived sometime during the day; Lucero showed up in the early evening. The four drank beer together and discussed breaking into a nearby house. With a few minor exceptions, Lara's testimony concerning the subsequent burglary and his argument with Lucero's friend or cousin concerning the latter's desire to take one of the stolen televisions tracked that of Calvetti. Lara also confirmed he and Lucero brought the stolen items into his bedroom later that night, Calvetti was lying down on his bed when they did so, and they then rejoined Flores and Espinoza outside.

         Turning to the murder, Lara testified a dark car pulled up and two “older guys” got out. One of the new arrivals was “a big dude” with “long hair, ” while the other was wearing an Oakland Athletics beanie. The man wearing the beanie was Mexican and taller than Lara, who stood about 5 feet 2 inches in height. Lara thought he heard Lucero call this man, “Demon.” According to Lara, he and Lucero showed Demon one of the televisions, which Lara claimed was in the backyard. Apparently uninterested in buying the television, Demon returned to the front of the house with Lucero. Lara joined them. The other new arrival was also there. Lara did not remember where Flores and Espinoza were at this time. Lucero and Demon talked for a while and then began to argue, about what, Lara did not know. Demon then pulled out a handgun. Lara said something like, “Get that shit out of here.” When Lucero started to walk away, Demon shot him in the leg. Lara ran into the backyard. He then looked back and saw Demon hitting Lucero, he believed with the gun. The next thing Lara remembered was Demon dragging Lucero toward the street by his legs. Lara did not come to Lucero's aid because Demon “had a gun” and Lara was “drunk, high.” Lara then heard a car drive away and went to the front yard to see where Lucero had been dragged. It was at this point, according to Lara, Lucero said: “Bert, call the cops.” When Lara went into the house to call the police, he heard the second round of gunfire. Lara denied arguing with Lucero after the burglary, denied shooting him in the leg, denied hitting or kicking him, denied dragging him out of the carport area, denied shooting him in the street, denied seeing Flores or Espinoza do any of these things, and denied telling either of them to do so.

         According to Lara, after the second round of gunfire, he used Calvetti's cell phone to call 911, although he did not remember actually talking to anyone. He then noticed he had blood on his sweatpants, took them off, wetted them down to try to get the blood off because he was “sick” and “mad” about the shooting, and threw them in with the dirty laundry. He denied wetting down any shirts and claimed the white polo shirt found in the laundry basket belonged to his cousin. With respect to the towel that was also found in the laundry basket, Lara claimed to have cut his hand while using a window punch tool to break a beer bottle sometime before the burglary, after which he wiped the blood off his hand with a towel and threw it in with the dirty laundry. Lara claimed he got the injury to his leg earlier that night as well, when he tried to kick his dog to prevent him from getting out and instead ended up hitting his leg against a gate. He also might have received one of the injuries to his hands from the incident with the dog.[13]

         As previously noted, Lara's testimony that a dark car pulled up to the house was corroborated by Stokes's testimony and prior statement to police, although Stokes said there were two dark cars, which matches Lara's statements to detectives (see below). However, as also mentioned, Calvetti testified she did not see any dark cars parked in front of Lara's house the morning Lucero was killed. Nor did Garcia notice any dark cars parked in front of Lara's house that morning.

         Lara's Statements to Detectives

         Lara's prior statements to detectives were admitted into evidence during the prosecution's case in rebuttal.

         With respect to the burglary, early in the first interview, Lara claimed the property taken during the burglary belonged to Lucero, and Lara was just “holding it for him.” He claimed Lucero and “a couple other fools” he did not know committed the burglary. A short time later, Lara admitted he was “not being honest” about the burglary and confessed: “I ain't gonna lie, we did break into that piece of shit. Stole it. Stole the stuff, brought it over. Shit.” We mention his burglary-related statements no further.

         With respect to the murder, Lara denied involvement throughout the three interviews, describing Lucero as “my boy” and “my big homie.” He also denied any involvement on the part of Flores and Espinoza, whom he referred to as his “little friends, ” adding: “Them fools ain't gonna shoot that fool. [They] are only fourteen, fifteen.”

         Lara's account of who did shoot Lucero was vague and changed as the interviews progressed. In the first interview, he claimed a man in his mid-20s with a fade haircut and wearing an “A's hat or some shit like that” pulled up in a small dark car, got out, and started “talking cool” with Lucero towards the front of the carport area. Lara was sitting down on a chair behind the blue minivan that was in the rear carport while this conversation took place. At some point, the man started “fucking with” Lucero “over some bullshit” and pulled out a gun. When Lucero started to walk away, the man shot him multiple times. According to Lara, Lucero appeared to have been shot in the face, back, and legs. Lara “cutted” to his backyard. He believed the man then dragged Lucero into the street, but stated he did not actually see the dragging. When the shooter left, apparently in the dark car, Lara went out front to check on Lucero and heard him calling out: “Bert, call the cops.” Lara went back to the house to do so, at which point, “the car came back and finished him off.” Lara did not say what Espinoza was doing during the argument and shooting, but claimed he “cutted after all that happened.” He initially claimed Flores left before the incident, but then admitted he was there as well.

         When the detectives told Lara other people had implicated him as being involved in the murder, Lara added to his account that “some other fools” pulled up in a second dark car, but this other car “took off” before the shooting started. Lara also added details to the argument that transpired before the shooting. Specifically, Lara claimed the shooter said to Lucero, “you fucked up” and “get out of here, ” and then Lara told the shooter to “get that shit up out of here, ” apparently referring to the gun. Later in the interview, he stated Flores and Espinoza “probably hopped the other car and took off.” When the detectives accused Lara of being the shooter, he denied it and asked that his hands be tested for gunpowder residue. Lara denied getting into an argument with Lucero that morning, denied either Flores or Espinoza got into an argument with Lucero, and when one of the detectives asked who “had the argument over the gun” and who “was yelling to give him back the gun, ” Lara denied any such argument occurred. When the detectives indicated they did not believe him, Lara said: “Well, what am, what am I supposed to do, man? I'm supposed to snitch? [¶]... [¶] And just tell it? And then I end up dead?” Towards the end of the first interview, Lara added the shooter had “one boy with him, ” but provided no description of this other person.

         With respect to some of the physical evidence, Lara admitted he was wearing gray sweatpants when Lucero was murdered. He said he took them off afterward because he got blood on them when Lucero was shot in the carport area and fell to the ground. His statement is not very clear with respect to how he got the blood on his sweatpants. He appears to have claimed that when Lucero was shot, he immediately went to where Lucero fell to the ground and picked up some “broken glass[], ” apparently from some bottles that also fell to the ground at the same time, and while he was “[p]icking up all that bullshit, ” the man who shot Lucero “started coming” toward them, and it was at that point Lara ran to the backyard. With respect to the.40-caliber magazine that was found in the carport area, Lara denied knowing where it came from. Lara denied ever possessing a.40- or.45-caliber handgun. Lara also claimed the injury to his knee happened when he tried to kick his dog at some point before the murder and he injured his knuckles playing with the window punch tool.

         At the start of the second interview, Lara stated the man who shot Lucero pulled up in a car, got out and started talking to Lucero, “everything was cool.” Then, another car pulled up, another man got out, and everything was still “cool, ” until the first man “started shooting, that's when everybody started taking off.” Lara added that Lucero was walking from the street in front of the carport area back to the minivan in the rear carport when the shooter, who was still in the street, pulled out a gun and started shooting, hitting Lucero in the leg. According to Lara, the shooter then walked up to Lucero, “they were wrestling” and “fighting, ” and then the shooter dragged Lucero out of the carport area and left him in front of the adjacent house. Unlike the first interview, Lara claimed to have seen the dragging in this interview. He also claimed he did not go to Lucero's aid because he was afraid of getting shot and “didn't know what to do.” Lara then stated the man who was with the shooter was dressed “all in black” and “was standing right there like he had his back in case anything happens.” At some point during these events, or as Lara put it, “when that bullshit was going on, ” some of his friends pulled up in another car, but they “just pulled up at the wrong time” and drove off when “they seen what was going on.” When one of the detectives asked what Flores and Espinoza were doing, Lara answered: “I don't know, I don't even fuckin' remember if they were there.” Lara again denied he nor Flores or Espinoza was involved in the murder and told the detectives to “ask witnesses, they seen the cars pull up.” He then stated he believed Flores and Espinoza got into the “other car that pulled up” that he claimed was “a white Jeep, like, some shit like that.”

         During the third interview, one of the detectives asked Lara whether he helped the shooter drag Lucero in order to get him off of Lara's property, which Lara denied. Lara then asked to “start from the beginning.” In another iteration of the events leading to Lucero's murder, Lara claimed the shooter pulled up, got out of the car, and started talking to Lucero in the front yard, “it was all good.” Then, Lucero asked Lara to show the new arrival the televisions taken during the burglary. Lara went into his bedroom to do so. The man was supposed to come to his bedroom window to look at the televisions. When Lara opened the window, Flores and Espinoza told him Lucero and the man were arguing. Lara then “hopped out the window” and returned to the front, where the argument was happening. At this point, according to Lara, the shooting and other events he previously described occurred. Lara again denied being involved. Later in the interview, Lara added that Flores's brother Ray was in the car Flores and Espinoza got into when they left as the shooting was happening in the carport area. He also told detectives he believed the shooter went by the nickname, “Demon.”

         DISCUSSION

         We first address two sufficiency of the evidence claims raised by all defendants, concluding: there was insufficient substantial evidence to support Lara's first degree murder conviction, requiring reduction of that conviction to second degree murder; there was also insufficient substantial evidence to support second degree murder convictions as to Flores and Espinoza; and there was insufficient substantial evidence to support the gang crime convictions and gang enhancement findings as to all defendants, but these convictions and enhancements must nevertheless be reversed for related constitutional errors. We then address Lara's remaining contentions, concluding each either lacks merit or was harmless. Finally, we address and reject two remaining contentions, one raised by Flores and Espinoza and the other raised by Espinoza alone.

         SUFFICIENCY OF THE EVIDENCE CLAIMS

         I

         Sufficiency of the Evidence to Support the Murder Convictions

         Defendants challenge the sufficiency of the evidence to support their murder convictions. We conclude there was insufficient substantial evidence to support Lara's first degree murder conviction, requiring reduction of that conviction to second degree murder. The evidence was also insufficient to support second degree murder convictions as to Flores and Espinoza, requiring reversal of their murder convictions.

         A. Legal Principles

         “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]' [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”' [Citation.] This standard applies whether direct or circumstantial evidence is involved. [Citation.]” (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)

         “Murder is the unlawful killing of a human being... with malice aforethought.” (Penal Code, § 187, subd. (a).)[14] “Such malice may be express or implied.” (§ 188.) Express malice “requires an intent to kill that is ‘unlawful' because... ‘“there is no justification, excuse, or mitigation for the killing recognized by the law.”' [Citation.] [¶] Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger.” (People v. Elmore (2014) 59 Cal.4th 121, 133.)

         “All persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission... are principals in any crime so committed.” (§ 31.) “If the defendant himself [or herself] commits the offense, he [or she] is guilty as a direct perpetrator. If he [or she] assists another, he [or she] is guilty as an aider and abettor.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.) “[A]ider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea-knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime.” (Ibid.) The latter aiding and abetting requirement is satisfied where the aider and abettor “by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.)

         Moreover, an aider and abettor “‘is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.” (People v. Medina (2009) 46 Cal.4th 913, 920.) “Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.] [¶] ‘[A]lthough variations in phrasing are found in decisions addressing the doctrine-“probable and natural, ” “natural and reasonable, ” and “reasonably foreseeable”-the ultimate factual question is one of foreseeability.' [Citation.] Thus, ‘“[a] natural and probable consequence is a foreseeable consequence”....' [Citation.] But ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough....” [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury. [Citation.]” (Ibid.)

         B. Analysis

         We first note, as the Attorney General acknowledges in her briefing on appeal, there was no direct evidence establishing who shot Lucero in either the carport area or on the sidewalk next door. According to the Attorney General, however, the circumstantial evidence establishes the shooter (or shooters) must have been one of the defendants (or a combination of the defendants).[15]This assertion is based on the view defendants were “the only people present” in the carport area before, during, and after the murder, a view the Attorney General claims is a reasonable inference from the testimony of Calvetti and Garcia. With respect to the defendants who did not pull the trigger, the Attorney General argues they aided and abetted in the murder, relying on evidence of their “companionship and presence at the crime scene” and their “actions immediately before and after Lucero was shot, ” factors the Attorney General claims support a reasonable inference they shared the shooter's murderous intent and assisted in the achievement of the crime. Specifically, the Attorney General argues substantial evidence supports the view each defendant participated in the assault on Lucero that followed the shooting in the carport, after which Lara and either Flores or Espinoza dragged Lucero next door, all three were in the white car that pulled up to Lucero moments later, one of them fired the fatal shots, and all three then fled, Flores and Espinoza in the white car and Lara back to his house. Finally, the Attorney General argues the same evidence supports defendant's murder convictions based on the natural and probable consequences doctrine because, at the very least, each defendant aided and abetted the assault with a firearm in the carport area, and the murder that followed was a reasonably foreseeable consequence of that assault.

         We disagree with the Attorney General's underlying premise the evidence establishes defendants were the only people in the carport area at the time Lucero was assaulted with a firearm therein. While there is substantial evidence each defendant was there at this time, the only evidence they were the only people there came from Calvetti, who testified she did not see anyone other than the defendants in the carport area while Lucero was being pushed and kicked. However, her view of the carport was obstructed and she admittedly saw only shadows and someone wearing a white shirt at this time. Calvetti also testified she heard two voices she did not recognize during the argument that preceded the shooting in the carport area, indicating there may have been two additional people there when the carport altercation occurred. Lara testified two people pulled up in a dark car just before that altercation, the shooter and another man. In his prior statements to police, Lara said two dark cars pulled up. While these statements were inconsistent with each other, and with his trial testimony, the presence of two dark cars parked in front of Lara's house at the time of the shooting was corroborated by Stokes's testimony. We also note the presence of these cars was contradicted by other testimony, i.e., that of Calvetti and Garcia, and the jury was free to reject Lara's testimony in its entirety. However, because Calvetti's testimony makes room for the possibility two other people were there during the carport altercation, we cannot conclude there is any solid evidence defendants were the only people in the carport area. This conclusion prevents us from reaching the further conclusion, as the Attorney General would have us do, that because defendants were the only people there, one of them must have been the shooter and the others accomplices.

         We now proceed with an assessment of the evidence presented against each defendant.

         1. Evidence Against Lara

         There is no dispute Lara was in the carport area with Flores, Espinoza, and Lucero when the argument overheard by Calvetti and Stokes occurred, although, as mentioned, there may or may not have been two additional people present. Substantial evidence also supports the fact Lara participated in the argument, yelling: “Nigga, give me the gun” or “Nigga, give me back the gun.” Under the prosecution's theory of the facts, this statement was directed at Lucero, who had taken Lara's gun. Lucero was, after all, the one who was shot, pushed to the ground, and kicked shortly after Lara made the statement. Calvetti also testified she saw Lara holding what she believed to be a.45-caliber handgun after the burglary. Lucero was shot with a.40-caliber handgun that could have been the gun Calvetti previously saw in Lara's hands. She admitted to knowing very little about guns, so it is entirely possible she was mistaken about the caliber. Thus, Lucero might have taken Lara's gun, prompting Lara to take it back, shoot him with it, push him to the ground, and then kick him as he lay bleeding on the ground. And because the ballistics evidence indicates the same gun was used to finish Lucero off next door, it is also possible Lara pulled the trigger there as well. But “possible” is not enough to support a first degree murder conviction.

         However, in order to find sufficient substantial evidence to support Lara's first degree murder conviction, we need not determine whether the evidence sufficiently establishes he was the shooter. Even if someone else pulled the trigger, as long as Lara “aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission, ” he is guilty of murder; if he did so “willfully, deliberately, and with premeditation, ” that murder is of the first degree. (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu)).) But if the evidence is sufficient to establish only that Lara aided and abetted an assault with a firearm in the carport area and the subsequent murder was a natural and probable consequence of that assault, we must modify the judgment to reflect conviction of second degree murder. As our Supreme Court recently held, “punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine.” (Id. at p. 166.)

         We conclude the evidence was sufficient to support only a second degree murder conviction under the natural and probable consequences doctrine. In addition to being present in the carport area and participating in the argument, there was evidence Lara participated in beating Lucero and then dragged him next door. Specifically, Calvetti testified the person she saw kicking Lucero while he was on the ground was wearing a white shirt and Lara was wearing such a shirt following the burglary, which he removed following the murder, rinsed in the kitchen sink, and then threw in a laundry basket. This white shirt was a polo shirt. Garcia testified the two men she saw dragging a third man to the sidewalk next door were wearing white polo shirts and appeared to be Mexican and around 25 years old. While Garcia initially testified Lara was not one of these men, she later admitted she did not see their faces well enough to know whether Lara was one of them. That Lara was one of the men Garcia saw dragging Lucero next door is also supported by the fact Lara was the only one with a strong motive to move Lucero's body away from his house. Lara then returned to the house, where he removed not only the polo shirt, but also a pair of sweatpants he was wearing, rinsed them off in the kitchen sink, and threw them in a laundry basket. There was blood on both items, as well as on a white undershirt Lara did not rinse off or hide in the basket. While DNA was not able to be extracted from the bloodstain on the polo shirt, that extracted from bloodstains on the sweatpants and the undershirt matched ...


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