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People v. Vela

California Court of Appeals, Fourth District, Third Division

April 24, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
ADRIAN RAPHAEL VELA, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         Appeal from a judgment of the Superior Court of Orange County, No. 10CF0100 John Conley, Judge. Judgment conditionally reversed; remanded with directions.

          Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, Elizabeth M. Carino and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          MOORE, J.

         I

         INTRODUCTION

         Sixteen-year-old defendant Adrian Raphael Vela and one of his fellow gang members “hit up” (confronted) two suspected rival gang members. Vela's accomplice pulled out a gun and shot the two victims, killing one of them. The prosecutor directly filed charges against Vela in “adult” criminal court. The jury found Vela guilty of murder, attempted murder, and found true the related firearm and gang allegations.

         Vela makes several interrelated claims of instructional error concerning accomplice liability. Vela also raises two constitutional challenges to his 72 years to life sentence. In the unpublished parts of this opinion, we will find that the trial court committed no instructional errors. Further, Vela's sentence does not violate either the equal protection clause or the Eighth Amendment.

         In the published portion of this opinion, we conditionally reverse the judgment. Due to the electorate's recent approval of Proposition 57, which emphasized juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in an “adult” criminal court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into account various factors such as the minor's age, maturity, criminal sophistication, and his or her likelihood of rehabilitation.

         We find that Vela is retroactively entitled to a transfer hearing because his case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge determines that Vela's case should be transferred to a court of criminal jurisdiction, then his convictions and sentence will be reinstated. But if the juvenile court determines that Vela is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law.

         II

         FACTUAL AND PROCEDURAL BACKGROUND

         On January 23, 2009, Christopher Ochoa was at Vela's apartment in Anaheim. Ochoa and Vela are both members of 7th Street, a relatively small criminal street gang located in Santa Ana. The gang claims the territory of 6th and 7th Streets and marks that area with the gang's graffiti. Seventh Street's main rival is F-Troop, a gang that claims the territory that surrounds 7th Street's turf. Members of 7th Street felt it important to let people know who was in charge of its neighborhood.

         At around noon, Hector Martinez drove to Vela's apartment. Martinez was a long-time associate of the 7th Street gang. Vela and Ochoa asked Martinez to take them “cruising” to Santa Ana to look for members of F-Troop and to look for rival gang tagging in 7th Street's turf. Ochoa wore gloves and indicated he had a gun. Martinez drove Vela and Ochoa to Santa Ana.

         When they arrived in Santa Ana, Martinez drove around 7th Street's territory. As they were cruising the area, they talked about Ochoa's gun and were looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop because they saw two males (later identified as Martin Herrera and David Frias) whom they suspected to be rival gang members. Martinez made a U-turn and pulled into the parking lot of an apartment complex. When Martinez stopped the car, Vela got out and said that he was going to “hit these guys up.” As Vela walked towards Herrera and Frias, Martinez backed his car into a parking space so that it was facing towards the street. After about four minutes, Ochoa loaded his gun, concealed it under his clothing, and got out of the car to check on Vela.

         Martinez stayed in the car and could not clearly see what was going on because there was a tree blocking his view. But Martinez was able to see some gesturing as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender. Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.

         Vela and Ochoa immediately ran back to Martinez's car and got in. Ochoa was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and leave. In an excited voice, Vela said, “Did you see those fools crying for their life?” Martinez got on the freeway and headed towards Anaheim. Once they were in Anaheim, Ochoa leaned out the window and threw the bullets from the gun into a sewer drain on the side of the street. Martinez drove to a friend of Vela's house located somewhere in Anaheim where Vela and Ochoa buried the gun in the backyard.

         Two days later, the police arrested Martinez. A witness had written down the license plate number of his car and called 911. Initially, Martinez did not tell the police who was involved in the shooting because he feared retaliation and being labeled a “rat.” Vela and Ochoa had told him, “Don't say nothing.” However, about nine months later, Martinez agreed to testify in exchange for a 13-year sentence.

         The prosecution charged Vela in a three-count information with murder, attempted murder, and being an active participant in a criminal street gang. (Pen. Code, §§ 187, 664, subd. (a), 186.22, subd. (a).) The prosecution alleged that the murder and the attempted murder were committed for the benefit of a criminal street gang, and that during the commission of the gang-related murder and attempted murder, another principal intentionally discharged a firearm causing death and great bodily injury. (Pen. Code, §§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).)

         A jury found Vela guilty of the charges and found true the allegations. The trial court sentenced Vela to an aggregate prison term of 72 years to life. The court imposed 15 years to life for the murder, 7 years for the attempted murder, and two 25-year-to-life terms for the gang-related firearm enhancements. The court stayed the sentence on the substantive gang offense. (Pen. Code, § 654.)

         III

         DISCUSSION

         A. Natural and Probable Consequences Jury Instruction Claim

         “We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.' [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]' [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

         In California, criminal liability extends not only to direct perpetrators of crimes, but also to any accomplices. (Pen. Code, § 31.) When a defendant commits a crime with an accomplice, he is not only directly liable for any crimes he intends to commit (the target offenses), but he is also vicariously liable for any other crimes (nontarget offenses) committed by his accomplice that were a natural and probable consequence of the target offenses. (People v. Olguin (1994) 31 Cal.App.4th 1355.)

         An objective test is used in determining “whether a particular criminal act was a natural and probable consequence of another criminal act.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) “Consequently, the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, 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 by the defendant.” (Ibid.)

         A trial court properly instructs the jury on the natural and probable consequences doctrine when there is substantial evidence that a defendant and his accomplice committed a target offense, and when a jury could reasonably find that the nontarget offense committed by the defendant's accomplice was a “‘natural and probable consequence'” of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 269.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury, ' that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)

         Here, the trial court instructed the jury using the pattern instruction that explains the “natural and probable” consequences doctrine. (CALCRIM No. 403.) In relevant part, the instruction stated: “Before you may decide whether the defendant is guilty of murder under the natural and probable consequences theory, you must decide whether he is guilty of Disturbing the Peace by Fighting or Challenging Someone to Fight. [¶] To prove that the defendant is guilty of murder, the People must prove that: [¶] 1. The defendant is guilty of Disturbing the Peace; [¶] 2. During the commission of that crime, a coparticipant in that crime committed the crime of murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the Murder was a natural and probable consequence of the commission of Disturbing the Peace.”

         The trial court also instructed the jury using the pattern instruction that explained the elements of the target crime of disturbing the peace. (CALCRIM No. 2688.) The instruction stated: “Here is the legal definition of disturbing the peace in violation of Penal Code section 415 (1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully (fought/ or challenged someone else to fight); [¶] AND [¶] The defendant and the other person were (in a public place) when (the fight occurred/or the challenge was made). [¶] Someone commits an act willfully when he does it willingly or on purpose.” The court further instructed the jury on the elements of the nontarget offenses (second degree murder and attempted murder). (CALCRIM Nos. 520, 600.)

         Vela contends that: “There was insufficient evidence here to support an instruction suggesting it was reasonably probable that a hit-up would result in a murder.” We disagree. Vela and Ochoa, both 7th Street gang members, asked Martinez to drive them around their gang's territory to look for rival gang members and rival graffiti. There was a discussion in the car about Ochoa having a firearm. When two possible rival gang members were spotted, Vela and Ochoa asked Martinez to stop and before getting out of the car, Vela said: “I'll be back, I'm going to go hit these guys up.”

         During the trial, a gang expert testified that: “A ‘hit up' is when a member or members of a gang will confront a person or persons and ask them about their gang affiliation.” He also testified that: “The chances of the probability of a conflict or violence is very, very high. Anything from being shot, to being beat up with a fist, or kicked.” He further testified that within the gang subculture, fellow gang members are expected to provide “back up” and if they have a firearm, they are expected to use it during a “hit up” or a confrontation. Thus, there was evidence from which a jury could reasonably find that a murder (the nontarget offense) was a natural probable consequence of a “hit-up” under these circumstances.

         Vela makes three additional interrelated claims of instructional error based on the “natural and probable” consequences doctrine. Vela contends that: 1) if the target offense is a misdemeanor, a murder cannot be the nontarget offense; 2) in such a case, the nontarget offense is limited to involuntary manslaughter; and 3) the trial court erred by ...


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