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People v. Tovar

California Court of Appeals, First District, First Division

April 10, 2017

THE PEOPLE, Plaintiff and Respondent,
RAFAEL TOVAR, Defendant and Appellant.

         Superior Court of the County No. H53333A of Alameda Hon. Morris Jacobson Judge

          Counsel for Defendant and Appellant: Candace Hale

          Counsel for Plaintiff and Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Lawrence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Elizabeth W. Hereford, Deputy Attorney General

          HUMES, P.J.

         A jury convicted defendant Rafael Tovar of first degree murder and conspiracy to commit murder based on his participation in the 2010 killing of Justice Afoa. Tovar's sole contention on appeal is that insufficient evidence supports the jury's finding that he committed the conspiracy offense “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” (Pen. Code, [1] § 186.22, subd. (b)), which we will refer to as the gang enhancement. We affirm.


         Factual and Procedural Background

         A. The Murder.

         During the fall of 2010, members of the Newark Memorial High School football team were involved in an ongoing conflict with other students affiliated with local Norteño street gangs. That September, Justice Afoa, one of the football players, and some teammates went to Tovar's home at the invitation of Tovar's younger sister, Daniela Guzman.[2] When the group arrived, Guzman was not there, but Tovar, who was drunk, came outside.

         Tovar was 29 years old at the time, and he was a self-admitted member of FMT (Fremont Mexican Territory), an East Bay Norteño gang. He was angry that one of the football players in Afoa's group, Anthony J., was there, because he believed Anthony J. had mistreated Guzman during a previous dating relationship. Tovar and Anthony J. began fighting, and Afoa stepped between them, “trying to hold [Tovar] back and [to] just tell [Tovar] to chill out.” Tovar responded by punching Afoa in the face, and Afoa punched him back. Another football player then approached and punched Tovar, knocking him to the ground. The football players left, and Tovar was eventually taken to the hospital with a concussion and “nose trauma.”

         The next day, Tovar's cousin, also a Norteño gang member, called Tovar's house from prison and spoke to Tovar, Guzman, and their younger sister. The younger sister indicated that she was trying to get the addresses of the football players. Referring to Daniel Howard, Tovar's longtime friend and a fellow gang member, she confirmed that “Danny Howard and JD” were “on it” and reported that Howard had said, “[W]e already got boys.”[3] Guzman also said she wanted to retaliate for Tovar's beating. After Tovar and the cousin discussed the beating, the cousin asked whether “everything [was] good” and whether Tovar and Howard were “going to take care of that.” Tovar responded, “Yeah, it's all good.”

         Over the next few months, Guzman and Howard exchanged several text messages in which Guzman reported on Afoa's movements.[4] In late October, Guzman sent a text message to Howard that stated, “Justice is at a party that I'm at right now!!” Later that night, a friend of Afoa's was driving when he saw Afoa running down the street away from a Halloween party. After the friend picked up Afoa, he noticed that Afoa was hurt and transported him to the hospital.[5] Soon afterward, Guzman sent text messages bragging that Tovar was going to kill Afoa because Tovar was “a real OG” (original gangster).

         On the afternoon of December 15, 2010, Afoa was stabbed to death on the street near Tovar's home. Two years later, Tovar, Guzman, and Howard were arrested for the murder. Tovar admitted to killing Afoa during a police interview, and a recording of this interview was played for the jury. Tovar also testified at trial.

         Tovar explained that he and Guzman were driving when Guzman noticed Afoa walking down the street. Tovar called Howard to say he had seen Afoa, and Howard arrived at Tovar's house about 10 minutes later. Tovar grabbed a kitchen knife, and the two men drove away in Howard's car. They quickly located Afoa, parked, and hid behind a wall. As Afoa approached, Howard emerged from behind the wall and said, “Do you know what time it is?” Afoa began running, and Howard and Tovar chased him down and attacked him.[6]

         Tovar claimed that a few days before the murder he learned that Afoa had “backhanded” Guzman at a party. Tovar said he did not intend to kill Afoa but wanted only to beat him up in retaliation for “putting hands on” Guzman. In explaining why he had taken a knife with him if he did not intend to kill Afoa, Tovar said Afoa was larger than he was and he did not want to lose a fight again. Tovar also claimed that he had been stabbed before and had not died, so he did not think stabbing Afoa would necessarily result in death.

         Tovar denied participating in any plan to attack Afoa or having a gang-related motive for the murder. Tovar was aware that while he was in the hospital “[t]here was a meeting that was called to retaliate on... the people who” had assaulted him. Although he did not know who had attended, “anybody who was close to [him]” would have been at the meeting, and “it was considered a gang thing.” Tovar claimed that he had reacted to news of the meeting by discouraging any retaliation, however, because he was “going to be the first guy [the police were] going to come after” if anything happened. Indeed, he testified that he specifically told Howard that “nothing better ever happen to these guys, ” referring to Anthony J., Afoa, and two of the other football players, and that he also specifically told Guzman he did not “want anything happening to any of these people.” Tovar denied knowing that Guzman and Howard had been communicating in the months before the murder about retaliating against Afoa, and he denied playing any role in the attack on Afoa at the Halloween party. Tovar did, however, admit to feeling good at the time of the murder about “getting a little bit of pay back” for the football players' assault.

         B. ...

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