California Court of Appeals, First District, First Division
FOR PARTIAL PUBLICATION[*]
Court of Contra Costa County, No. 05-080176-1 Hon. Brian
Counsel for Plaintiff and Appellant Jose Vega-Robles Joseph
Shipp By appointment of the Court of Appeal under the First
District Appellate Project, Independent Case System
Counsel for Respondent People of the State of California
Kamala D. Harris, Attorney General Dane R. Gillette Chief
Assistant Attorney General Gerald A. Engler Senior Assistant
Attorney General Jeffrey M. Laurence Supervising Deputy
Attorney General Christopher W. Grove Deputy Attorney General
convicted Jose Vega-Robles of conspiracy to sell controlled
substances, attempted robbery, and two first degree murders,
and found true gang and firearm enhancements. He appealed,
raising numerous issues, including a challenge to the gang
experts' testimony on hearsay and confrontation clause
grounds. In an opinion certified for partial publication
filed on May 5, 2015, we reversed the conviction for the
murder of Darrell Grockett for instructional error per
Peoplev. Chiu(2014) 59 Cal.4th 155 (Chiu).
We ordered that on remand, the People had the option of
accepting a reduction of defendant's conviction to second
degree murder or retrying the first degree murder charge
under theories other than natural and probable consequences.
(Id. at p. 168.) We rejected defendant's other
appellate challenges to the judgment.
29, 2015, the Supreme Court granted defendant's petition
for review and deferred further action pending consideration
of People v. Sanchez (review granted Sept. 5, 2014,
S216681). (People v. Vega-Robles, review granted
July 29, 2015, S226913.) On September 21, 2016, the Supreme
Court transferred the cause to this court for reconsideration
in light of the decision in People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez). Thereafter, we requested
and received supplemental briefing from the parties on the
application of Sanchez to this case. Having
considered the supplemental briefs, we conclude the testimony
of gang experts Todd Tribble and Robert Brady, and the
instructions on expert testimony, violated Sanchez
in certain respects, but the errors were harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386
U.S. 18). We therefore reinstate our original judgment
reversing in part and affirming in part, and remanding with
OF THE CASE
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 act 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
17 through 19 involved defendant's nonfatal shooting of
Jose Hernandez on February 21, 2005, with the assistance of
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).)
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)).
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.
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
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.
jury acquitted defendant of counts 5 and 6, residential
burglary and grand theft, respectively.
court sentenced defendant to an indeterminate prison term of
85 years to life. Defendant filed a timely notice of appeal.
Defendant's drug trafficking operations.
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
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.”
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.
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.
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.
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
Delatorre owed for a pound of methamphetamine.
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 10 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.
sometimes counted the drug money for Phillips. Between 2003
and 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.
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.
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.
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 spot 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.
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.
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.
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[, ]
had a falling out with some members of FAIM after he became
romantically involved with Stacey Taylor, Phillips's
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.
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.
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.
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.
knew, by “talking to everybody, ” that Cates
picked up drugs somewhere in Los Angeles for both defendant
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.
Murder of David Grockett-October 7, 2004.
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 to 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
Events Leading Up to the Murder.
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.
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.
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
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
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.
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.
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.
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.
Murder of Marcelino Guzman-Mercado-December 3, 2004.
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.
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.
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.
Events Leading Up to the Murder.
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 somebody that had...
either some money or some drugs that he could take [rob] from
December 3, 2004, Ruiz was at home drinking beer with Rodolfo
Figueroa when Delatorre and Primo pulled up in a gold Lexus.
The car was registered to Ruiz, although he did not own it.
He drove it only for drug trafficking business when directed
to by Primo. He did not use the car for his personal
and Figueroa “hopped” in the car to go for a
drive, but Primo drove to a Union 76 gas station (76 Station)
on the San Pablo Dam Road, where defendant and another person
were waiting for them in a white Suburban SUV. Defendant was
the passenger. Primo and Delatorre got out of the car and
spoke to defendant. When they returned to the Lexus, Primo
told Ruiz to drive. Primo and Delatorre got in the Lexus, and
defendant remained in the Suburban. Primo asked Figueroa to
wait at the 76 Station and Figueroa got out of the car. Primo
told Ruiz to pick up some drugs, and he drove to a nearby car
wash to wait for the arrival of Guzman-Mercado, whom he did
not know. Defendant was never in the Lexus.
Guzman-Mercado got into the back seat of the Lexus, Ruiz
drove off. Primo, who was in the front seat, turned around to
speak to Guzman-Mercado. They argued in Spanish, and Ruiz
heard someone say, “Let me see it.” Suddenly he
heard a gunshot from the back seat. Ruiz stopped the car in
shock and looked back to see that Guzman-Mercado was shot,
and Delatorre had a gun in his hand. Ruiz kept driving and
when he next looked back the door was open and Primo and
Delatorre were trying to eject Guzman-Mercado's body from
the car, but Guzman-Mercado's foot was caught under the
seat and his body was being dragged along the pavement. Ruiz
stopped the car; Primo got out and extracted
Guzman-Mercado's body from the car. Primo patted down
Guzman-Mercado's body, looking for “house keys,
” but did not find any. They drove off, and Primo made
a call from his cell phone.
ii. Events After the Murder.
time later, they met defendant and others at the Wildcat
Canyon Apartments, from which defendant sold drugs and where
some of defendant's relatives lived. The apartments were
around the corner from the 76 Station and a couple blocks
away from the location of the shooting. The others drove off,
but Ruiz and Rodolfo Figueroa stayed until Alejandro Figueroa
picked them up and dropped Ruiz at his home.
next day, Ruiz was eating with a friend at the Portumex
Restaurant on 23rd Street in Richmond when defendant, Sergio,
and Primo came into the restaurant to talk to him. Sergio
told Ruiz, “Don't worry about it. Just don't
say nothing.” Defendant said, “Good job.
Don't worry. You'll be fine.”
week later, Delatorre told Ruiz the incident
“wasn't supposed to happen like that. They were
just going to tie him up.” Ruiz asked Delatorre what
happened after Ruiz was dropped off at the Wildcat Canyon
Apartments. Delatorre said “they” went to the
victim's apartment and “he”―
Delatorre― kicked in the door. He told Ruiz “he
went in and got what they went for, ” which was
“pounds of crystal meth.” Delatorre did not say
who went to the apartment with him. He said defendant kept
the drugs. Delatorre explained to Ruiz he “paid his
debt” to defendant by participating in the transaction.
Ruiz knew Delatorre owed defendant money for
“crank” defendant had fronted to him because Ruiz
went with defendant to collect the debt from Delatorre a
couple of times.
the Guzman-Mercado shooting, Ruiz maintained his association
with defendant, Sergio, and Delatorre and continued to make
drugs sales, but he tried to “keep [his]
assumed Guzman-Mercado was a drug dealer because he was
supposed to pick up a package from him. Picking up things or
people or making deliveries and dropping things off was a
“standard thing” that Ruiz would do with
defendant, Sergio, and Primo “[o]nce in a while.”
While driving, he assumed the incident with Guzman-Mercado
was going to be just another drug transaction because drug
transactions were something he would typically do with Primo,
Delatorre, or defendant.
point in December after the murder had occurred, defendant
told Stacey Taylor he got the money or drugs and that he had
shot the guy in the car, or inside the car. Defendant
described the car as a Lexus.
December 2004, defendant told Covey about shooting someone in
Primo's Lexus. According to Covey, defendant and Primo
“were laughing and joking about how he was hanging out
of the car and they were shooting him as they were going down
said they had to get rid of Primo's car, which was a
Lexus. They did not say who did the shooting. Covey recalled,
“It was close to Christmas and it was hard times and
everybody was trying to figure out a way to make money and I
was under the impression that it was a robbery” because
“[t]here was no dope around and nobody had no means of
making money and he, Coby, had said that they had a plan to
make money and that's all we heard.”
overheard a conversation between defendant and Primo and Rick
Ruiz about pushing someone out of a car. Defendant asked,
“Did you finish it or did you do it?” Primo said
they shot the person but he was not dead and they had to push
him out of the car. She thought they used an older model
Lexus for the job.
Ruiz Is Arrested for the Guzman-Mercado Murder.
was arrested on March 5, 2007, for the Guzman-Mercado murder.
At the time, Ruiz had heard Sergio and defendant had been
arrested, and he knew people were talking about the
Guzman-Mercado murder. The police questioning led him to
believe he was arrested because defendant had implicated him,
Delatorre, and the Figueroa brothers, Rudolfo and Alejandro,
in the Guzman-Mercado murder, although he later learned
defendant meant a different Alejandro. After reading the
police reports, he knew defendant and Sergio had ratted him
was charged with the murder. Ruiz gave police a statement on
March 5. On the advice of counsel, Ruiz admitted to the
prosecutor and Inspector Pate he was in the car when
Guzman-Mercado was killed. Ruiz admitted he initially told
law enforcement officers that Primo shot Guzman-Mercado,
because Primo was in Mexico and he wanted to deflect
suspicion from his friend Delatorre. However, Ruiz eventually
identified Delatorre as the shooter.
September 11, 2007, he gave police another statement in which
he told police about Primo's statements concerning the
Darryl Grockett murder. In that statement, Ruiz told police
Primo said Grockett was trying to get Coby Phillips killed or
trying to kill him. According to Ruiz, Primo said two
shooters―defendant and Coby―were shooting at
Grockett and “they” all had guns. He also told
law enforcement about the Hernandez shooting. According to
Ruiz, Hernandez was affiliated with “northerners,
” the rivals of Sureños.
agreed to testify for the prosecution. He entered a plea
agreement in which he was to serve three years in a local
facility. As part of that deal, Ruiz also testified at
Delatorre's trial and before the grand
jury. He was supposed to tell the truth.
Since he started testifying in 2008, Ruiz had received
approximately $63, 000 and relocated with his family.
Pate recalled that he and Detective Goldberg interviewed Ruiz
at the Martinez jail in early 2007. Goldberg suggested
Delatorre was already talking and told Ruiz that if he was
“honest” about what he and other people did, Ruiz
would not be booked into jail. The officers did not give Ruiz
police reports to read or say defendant had been talking
about Ruiz. At that point, Ruiz admitted that he was driving
the car when Guzman-Mercado was shot.
mentioned a Chevy Tahoe truck was also involved, but
maintained he did not know the occupants. Eventually, Ruiz
identified a photograph of defendant, who went by the
nickname Calacas, as one of the people in the
truck. Ruiz said that earlier that evening,
Primo had talked about “jacking” (i.e., robbing)
Guzman-Mercado. Eventually, Ruiz said Delatorre shot
Guzman-Mercado. At the end of the interview, Ruiz was still
denying he had a relationship with defendant. Ruiz and
Delatorre were the only ones charged with the Guzman-Mercado
murder at that time.
was reinterviewed in the fall of 2007. An attorney was
present during part of the interview. During this interview
the police learned for the first time about the Hernandez
shooting and about Ruiz's conversation with Primo about
the shooting off Highway 4.
to Beckwith, a few months after the shooting in the car,
defendant left for Mexico because a warrant for his arrest
had been issued. Later, Timothy Covey drove her to Mexico to
meet him. At some point, defendant returned to the United
States and was eventually arrested in Petaluma in 2007.
Attempted Murder of Jose Hernandez-February 21, 2005.
February 21, 2005, Jose Hernandez lived with his daughters at
1815 Roosevelt Avenue, Richmond, in one unit of a four-unit
apartment complex where his parents also lived. He was
walking downstairs with his sleeping daughter in his arms
when he was shot three times. He identified defendant as the
lived next door to Alejandro Figueroa, who was having a party
that day. A wooden-slatted cyclone fence separates the two
properties. Hernandez had to walk outside to take his
daughter downstairs to his apartment and saw defendant
urinating on the fence. Hernandez deposited his daughter at
his apartment. On his way back to his mother's apartment,
he heard defendant say, “[H]ey, just stop and look to
your left.” Hernandez turned to see defendant about six
or seven feet away pointing a gun at him. Defendant smiled
and shot Hernandez in the left hand, the hip, and the calf.
Hernandez yelled for help and a number of family members came
to assist him. Police and paramedics arrived shortly
thereafter. A live.38-caliber bullet was found at the scene.
Police officers observed four suspected bullet holes in the
fence between the two residences. Hernandez subsequently
identified defendant from a photographic lineup at the
hospital the next day. He recognized defendant as someone he
had seen once or twice before.
knew Alejandro Figueroa's brother, Rudolfo. He also knew
Ricardo Ruiz, who used to go to Alejandro's house
“lots” and went to Hernandez's house
“sometimes.” He was not sure if defendant was the
person known as Calacas, but he was sure defendant shot him.
Initially, Hernandez went 涧 to living at his apartment on
Roosevelt. However, a couple of years later, the police
contacted him out of the blue. At first he did not want to
talk to them or testify, but now felt safe to testify,
because he got help to move out of the Roosevelt Avenue
testified that he had previously asked Alejandro to sell him
cocaine, and Alejandro had arranged for him to buy the drugs
from defendant; that was when Alejandro told Hernandez who
defendant was. On that day, he also saw a gun defendant was
carrying in the car. He had seen defendant at Alejandro's
house a couple times.
Figueroa confirmed he hosted a family barbeque at his house
on February 21, 2005, which was attended by Rudolfo and Ruiz.
Alejandro knew defendant as “Calacas” and
“Carlos” and identified him in court. Defendant
showed up at the barbeque uninvited. He first passed by the
residence in a Cadillac, in which he was a passenger. The car
went around the block and, shortly thereafter, defendant
walked up to Alejandro and asked if he could urinate on the
side of the house. Alejandro said he did not mind, and
defendant walked to the side of the house. Suddenly,
Alejandro heard shots and saw defendant come out running. He
was holding a gun. Defendant was the only one on the side of
the house when the shots were fired. His friend and neighbor,
Hernandez, had been shot. The police came, but Alejandro did
not tell them what he saw because he was scared.
to Ruiz, Alejandro invited him to the barbecue. Primo showed
up later, as did defendant. Defendant was dropped off by one
of Coby's friends, Bubba, who was driving a
Cadillac. He looked serious. He said hello to
Alejandro and then went to the side of the house closest to a
fourplex next door. Ruiz heard gunshots and saw defendant
start running, then hop a fence. Ruiz knew Hernandez, who
lived in the fourplex. A few weeks earlier, Ruiz heard Sergio
say that the man who lived at the apartments (i.e.,
Hernandez) was “snitching.”
time, Alejandro owned a gold Lexus he had purchased from
Ruiz. Before he bought it, he had seen Primo driving it with
Ruiz. He later learned from a newspaper account that the
Lexus had been used in the Mercado-Guzman shooting.
March 2008, Alejandro was indicted for conspiracy, robbery,
burglary, and two murders, one of which involved
Guzman-Mercado. He was facing life in prison. He believed he
was indicted for the Guzman-Mercado murder because defendant
told the police someone named Alejandro was responsible for
it. After he learned that, he spoke to police for the first
time about the Hernandez shooting.
pleaded no contest to a misdemeanor violation of section 32,
accessory to a crime; the remaining charges were dismissed.
He was sentenced to time served. He was not the Alejandro
involved in the shooting of Guzman-Mercado and he was not a
gang member. So far as he knew, in 2004 and 2005, Ruiz used
to hang around with the RST gang, but he did not know if Ruiz
was a gang member.
February 21, 2005, Clayton Cates went from his sister's
house in Cordelia to Bush Street in Richmond with defendant
in a silver Cadillac. Tim Covey was driving. They parked on
the street in a residential neighborhood and defendant got
out of the car. Cates and Covey stayed in the car. Defendant
returned about 45 seconds later holding a gun. He appeared
nervous and said emphatically, “Go” or
“Let's leave.” They left, ...