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People v. Munoz

California Court of Appeals, Second District, Third Division

September 6, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
NICHOLAS ANTHONY MUNOZ, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          APPEAL from a judgment of the Superior Court of Los Angeles County No. KA110065, Robert M. Martinez, Judge. Judgment of conviction affirmed; sentence vacated and remanded for further proceedings.

          Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Yun K. Lee, Lindsay Boyd and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

          EDMON, P. J.

         In June 2015, defendant Nicholas Anthony Munoz and his cousins, James Rojas and Jonathan Loaiza, all gang members, were driving in Pico Rivera. Munoz and Loaiza fired shots at another car, a Yukon sport utility vehicle, in which four people were riding. One shot injured, but did not kill, one of the passengers in the Yukon. When Munoz's group sped from the shooting scene, their vehicle tumbled down an embankment, killing Loaiza. Although the evidence showed both Munoz and Loaiza fired shots at the Yukon, it did not definitively establish which one of them fired the bullet that hit the victim. The jury was instructed that Munoz could be found guilty of the attempted murders of two of the Yukon's occupants if he was the perpetrator of the crime, was a direct aider and abettor, or if he committed the target offense of shooting at an occupied motor vehicle and murder was a natural and probable consequence of that offense. The jury found the allegation Munoz fired the shot that hit one of the victims not true, but convicted him of shooting at an occupied motor vehicle and two counts of attempted premeditated murder, with firearm and gang enhancements. The trial court sentenced Munoz to two consecutive life terms for the premeditated attempted murders, plus 50 years to life for the firearm enhancements.

         In an unpublished opinion issued on October 11, 2018, we affirmed Munoz's convictions but vacated his sentence and remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Penal Code section 12022.53, subdivision (h).[1] Our Supreme Court granted review and deferred further action pending disposition of People v. Mateo (rev. granted May 11, 2016, S232674). Mateo presented the question of whether, to convict an aider and abettor of attempted willful, deliberate, and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense.

         Meanwhile, the Legislature enacted and the Governor approved Senate Bill No. 1437 (2017―2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015), which amended the law governing application of the natural and probable consequences doctrine as it relates to murder. The Supreme Court thereafter transferred this matter back to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill 1437.

         In accordance with our Supreme Court's order, we vacate our October 11, 2018 nonpublished opinion. After considering the parties' supplemental briefs, we conclude in the published portion of this opinion that Senate Bill 1437 does not apply retroactively to nonfinal judgments on appeal. Moreover, Senate Bill 1437 does not apply to the offense of attempted murder. In the nonpublished portion, we address Munoz's contentions of instructional error and evidentiary insufficiency, and remand for resentencing on the firearm enhancements. Our analysis and disposition regarding these previously raised claims of error remain the same as in our original opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Facts

         Munoz was a member of the Pico Viejo criminal street gang. His cousins, codefendant James Rojas, and Rojas's brother, Jonathan Loaiza, were also Pico Viejo members. Victor Espindola, David Carrillo, and Adrian Perez were all members of the Brown Authority criminal street gang. The Pico Viejo and Brown Authority gangs were bitter enemies. Their claimed territories overlapped, leading to ongoing violence and numerous shootings between the gangs. Both gangs claimed Streamland Park in Pico Rivera as their territory.

         a. People's evidence

         (i) The shooting

         On June 26, 2015, between 7:00 and 8:00 p.m., Espindola, Carrillo, and Perez, along with a woman named Daisy, went to Streamland Park in Espindola's mother's burgundy Yukon SUV. At the park, Carrillo spoke to some men near the baseball diamond. Espindola's group then saw a person with whom they did not “get along.” Carrillo or Perez confronted the man, who ran up a nearby hill.

         Espindola then drove the group away from the park in the SUV. Carrillo and Perez sat in the back seat, with Carrillo on the driver's side. Daisy was in the front passenger seat. Espindola drove northbound onto Rosemead Boulevard, in the far right lane, at 10 to 15 miles per hour, looking for the man who had run up the hill. According to Espindola, his group did not intend to scare the man, but simply wished to determine why he ran from them.

         Meanwhile, Rojas was driving his girlfriend's blue Mitsubishi Galant on Rosemead Boulevard, with passengers Munoz and Loaiza. When Espindola's SUV was parallel with the park at the top of the hill, Rojas drove up to the SUV on the driver's side and Munoz and Loaiza fired shots directly at the SUV. Espindola heard six gunshots. He heard his window “pop” and a gunshot hit the car door, and then Rojas's Mitsubishi sped off. Espindola briefly continued driving on Rosemead until Carrillo said he had been hit, and lost consciousness. Espindola made a U-turn and drove Carrillo to the hospital. According to Espindola, he was surprised by the shooting and did not know why the assailants shot at his SUV. No one in Espindola's group was armed, and they did not display guns or shoot at anyone. The whole incident transpired very quickly.[2]

         Carrillo was shot in the stomach and underwent surgery at the hospital.

         (ii) The accident

         Rojas drove from the shooting scene and attempted to enter the 60 Freeway at an excessive speed, causing the Mitsubishi to crash. Motorist Cynthia Arredondo observed the Mitsubishi tumble down an embankment by the Rosemead on ramp, landing on its roof. Arredondo pulled over and called 911, while her boyfriend attempted to render aid. Munoz was partially pinned inside the car and was calling for help; he eventually managed to free himself. Loaiza, who had been seated in the front passenger seat, was deceased. Rojas was outside the car, talking on a cellular telephone. When Arredondo asked Rojas whether everyone was okay, he responded, “ ‘I killed my brother.' ” He also said someone had been chasing them. Within three minutes, before emergency personnel or deputies arrived, a car picked Rojas up from the accident scene.

         (iii) The investigation

         Two firearms were found outside the Mitsubishi at the accident scene: a nine-millimeter Sig Sauer with an empty magazine, and a.380-caliber Lorcin semiautomatic pistol, loaded with a bullet in the chamber and a magazine containing five live cartridges. At the shooting scene, which was approximately a half mile from the accident scene, deputies recovered a bullet fragment, four fired nine-millimeter cartridge cases, and one fired.380-caliber cartridge case. Espindola's SUV bore five bullet holes, and five bullet fragments were recovered from the area between the vehicle's exterior and the interior panel. Forensic examination revealed that the.380-caliber cartridge case had been fired from the.380-caliber Lorcin gun found at the accident scene. Munoz's DNA matched DNA found on the.380-caliber Lorcin gun. The four expended nine-millimeter cartridge cases and four of the bullet fragments had been fired from the Sig Sauer gun.[3] Two of the bullet holes in the SUV were made by nine-millimeter bullets. A Pittsburgh Pirates baseball cap that had been ejected from the Mitsubishi was on the ground at the accident scene.

         Rojas's Mitsubishi bore no evidence of bullet strikes, and no evidence suggested the occupants of the SUV shot at the Mitsubishi.

         (iv) Munoz's jail conversation with a confidential informant

         On June 29, 2015, Munoz was placed in a jail cell with a confidential informant. Their conversation was recorded and played for the jury. Munoz stated he was a Pico Viejo gang member with the moniker “Lil Scrappy.” He described the incident as follows.[4] Some “fools, ” whom he believed to be Brown Authority gang members, had been chasing and attempting to shoot at or harm his cousin and fellow gang member, Loaiza. Loaiza was an “ace” and a “straight rider, ” that is, an active gang member known for committing crimes for the gang. Munoz and Loaiza shot at the Brown Authority gang members, with Munoz firing a.380 and Loaiza firing a nine-millimeter firearm. Munoz's gun jammed after he fired one shot. Loaiza, however “fucken served them, boom, boom, boom, boom, boom.”[5] Although it was dark, Munoz “just knew it was them, though... I just knew it.” When Munoz's group fled, the other car chased them. Munoz thought the Brown Authority gang members had guns and tried to pull them. When the accident occurred, he and Loaiza were not wearing seat belts. Munoz was injured, Loaiza died, and Rojas fled.

         (v) Gang expert's testimony

         Los Angeles County Sheriff's Detective Stephen Valenzuela testified as the prosecution's gang expert, regarding the Pico Viejo gang's membership, origins, territory, primary activities, symbols, “code of silence, ” and predicate offenses.[6] Pico Viejo was one of the most violent gangs in the Pico Rivera area. There had been numerous shootings between the Pico Viejo and Brown Authority gangs, and incidents of violence in Streamland Park. In Valenzuela's opinion, Munoz, Loaiza, and Rojas were Pico Viejo gang members.[7] The gang used the Pittsburgh Pirates “P” as one of its symbols, and the Pittsburgh Pirates baseball cap found at the accident scene was commonly worn by Pico Viejo gang members. Valenzuela opined that Espindola and Carrillo were members of the Brown Authority gang.

         When given a hypothetical based on the evidence adduced at trial, Valenzuela opined that the shooting was committed for the benefit of, and in association with, the Pico Viejo gang. The shooting benefitted the gang by showing the community and other gangs that Pico Viejo gang members would “do anything to protect their borders.” Moreover, the gang members were acting together, looking for rivals. Such conduct would instill fear in the community and in gang rivals, thereby making them afraid to report crimes to police, “further[ing] the stranglehold that gangs and gang violence have in the community.”

         b. Defense evidence

         (i) Testimony from witnesses at Streamland Park

         Robert Mendoza and Savaltore Dominic Mendoza[8] were both at Streamland Park on the evening of June 26, 2015, [9] preparing the baseball fields for a tournament the next morning. Mariah Ginez and her boyfriend were also at the park at that time. Robert saw a male Hispanic walking around the park, apparently looking for something. Shortly thereafter, a maroon SUV pulled into the parking lot. Two Hispanic men exited the SUV and began “hanging out” with the first man at the baseball diamond's backstop. One of the men asked Robert whether there were any games that night, whether Robert knew a former Little League president, and whether anyone from Pico Viejo was at the park. Robert said only the Little League coaches were present. The men returned to the SUV. Shortly thereafter, one of the men returned to the field with a baseball bat and yelled, “ ‘Are you guys from Pico Viejo?' ” Robert and Savaltore ignored them and moved to another area of the field. Savaltore phoned his wife and asked her to call 911. The SUV picked up the man with the bat, and “peeled out” of the parking lot.

         Ginez observed a man at the top of a small hill on the back side of the park. The driver of the SUV yelled at the man on the hill, “this is my barrio, ” or similar words. The men seemed to be arguing, and the man from the SUV said, “let's go one-on-one.” However, the man from the SUV did not attempt to run up the hill after the other individual.

         According to Robert and Savaltore, other than the baseball bat, the men from the SUV did not have any visible weapons, nor, according to Ginez, did the man who yelled at the person on the small hill.

         Within five to 10 minutes, Robert, Savaltore, and Ginez heard gunshots nearby.

         (ii) Rojas's testimony

         Rojas testified in his own defense. His family had longstanding ties to the Pico Viejo gang. In June 2015 he and his family were living in Bell Gardens. On the night of the shooting, Loaiza called Rojas and said he was at Streamland Park to meet a girl, but did not feel safe and thought it might be a set up. Rojas drove to the park and located Loaiza, who was with Munoz. Rojas picked both men up and began driving home. When he made a right turn onto Rosemead, he saw a burgundy SUV on the shoulder. Loaiza said, “ ‘Those are those fools right there.' ” As Rojas neared the SUV, he saw the SUV's windows rolling down. Rojas “hit the gas.” Almost immediately, Rojas heard gunshots and ducked. He could not tell whether the shots came from inside or outside of his vehicle. He continued down Rosemead Boulevard and saw, in his rearview mirror, that the other car was behind him, driving fast. Rojas sped up and lost control of his car, which plunged down an embankment, flipping several times. He had not been looking for anyone when he pulled onto Rosemead Boulevard; he had been planning to drive home. When Arredondo approached to help, he told her to leave because “we just got chased.” He fled the scene because he was scared. He had gone to the park to protect his little brother; he had not come prepared for violence; he had not known, and had no reason to believe, that Loaiza had a weapon or that there were guns in the car. He denied being an active gang member, but admitted a prior association with the Pico Viejo gang.

         2. Procedure

         The jury found Munoz guilty of the attempted willful, deliberate, and premeditated murders of Carrillo and Espindola (§§ 664, subd. (a), 187, subd. (a)) and of shooting at an occupied motor vehicle (§ 246).[10] As to each offense, the jury further found Munoz personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b), (c)); a principal personally and intentionally used and discharged a firearm, proximately causing great bodily injury to Carrillo (§ 12022.53, subds. (b), (c), (d), (e)(1)); and the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)(C)).[11] The trial court sentenced Munoz to two consecutive life terms, plus 50 years to life. It ordered him to pay victim restitution and imposed a restitution fine, a suspended parole revocation restitution fine, a court operations assessment, and a criminal conviction assessment. As noted, we affirmed Munoz's convictions, but vacated his sentence and remanded for resentencing. Our Supreme Court granted review and has transferred the matter back to us with directions to reconsider the matter in light of Senate Bill 1437.

         DISCUSSION

         1. The evidence was sufficient to support the jury's finding that the attempted murders were willful, premeditated, and deliberate

         Munoz contends the evidence was insufficient to support the jury's findings that the attempted murders were willful, deliberate, and premeditated. He argues that the “overwhelming force of the evidence” showed nothing more than a spontaneous and impulsive shooting occurring when Munoz's group unexpectedly encountered Espindola's group in the SUV. We disagree.

         When determining whether the evidence was sufficient to sustain a criminal conviction, we “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]”' ” (People v. Salazar (2016) 63 Cal.4th 214, 242.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “ ‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support”' the jury's verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard of review applies when the prosecution relies primarily on circumstantial evidence. (Salazar, at p. 242.)

         Attempted murder requires the specific intent to kill and commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229.) Premeditation and deliberation require more than a showing of intent to kill. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) An attempted murder is premeditated and deliberate when it occurs as the result of preexisting thought and reflection, rather than an unconsidered or rash impulse. (People v. Pearson (2013) 56 Cal.4th 393, 443; People v. Burney (2009) 47 Cal.4th 203, 235.) “Deliberate” means formed, arrived at, or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. (People v. Houston (2012) 54 Cal.4th 1186, 1216.) “Premeditation” means thought over in advance. (People v. Solomon (2010) 49 Cal.4th 792, 812; People v. Disa (2016) 1 Cal.App.5th 654, 664.) However, to prove a killing was premeditated and deliberate, it is “ ‘not... necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.' [Citation.]” (Disa, at p. 665.) The “ ‘ “process of premeditation and deliberation does not require any extended period of time.”' ” (People v. Salazar, supra, 63 Cal.4th at p. 245.) “ ‘ “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....' [Citations.]” [Citation.]' ” (Houston, at p. 1216.)

         A reviewing court typically considers three categories of evidence when determining whether a finding of premeditation and deliberation is adequately supported: planning activity, motive, and manner of killing. (People v. Houston, supra, 54 Cal.4th at p. 1216; People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Gonzalez (2012) 54 Cal.4th 643, 663-664.) These so-called Anderson factors are not exclusive, but are a framework to guide the assessment of whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. (People v. Gonzalez, at p. 663; People v. Solomon, supra, 49 Cal.4th at p. 812.)

         Here, there was evidence of all three Anderson factors. First, the evidence demonstrated a motive for the shooting. Munoz and Loaiza were members of the Pico Viejo gang, and Espindola, Carrillo, and Perez were members of Pico Viejo's “bitter enem[y], ” Brown Authority. In his conversation with the confidential informant, Munoz stated he believed the victims were Brown Authority members, who had chased or shot at his cousin, Loaiza. The gang expert testified that gang members are expected to protect their territory, including “eliminating rivals in their territory.” Both gangs claimed Streamland Park as their territory. (See People v. Romero (2008) 44 Cal.4th 386, 401 [evidence of motive shown where victim and defendant were members of rival gangs, and killing a gang rival would elevate the killer's status]; People v. Martinez (2003) 113 Cal.App.4th 400, 413 [motive for shooting involved gang rivalry]; People v. Rand (1995) 37 Cal.App.4th 999, 1001; People v. Wells (1988) 199 Cal.App.3d 535, 541 [gang rivalry was motive for shooting where defendant and victim were members of rival gangs].)

         Second, there was evidence of planning, in that both Loaiza and Munoz brought loaded guns with them in the car. (People v. Salazar, supra, 63 Cal.4th at p. 245 [“defendant brought a loaded gun with him to the Beef Bowl, demonstrating preparation”]; People v. Lee (2011) 51 Cal.4th 620, 636 [“defendant brought a loaded handgun with him on the night [of the killing], indicating he had considered the possibility of a violent encounter”]; People v. Romero, supra, 44 Cal.4th at p. 401 [evidence of planning shown by facts defendant brought gun to a store and shot victim in the back of the head]; People v. Wells, supra, 199 Cal.App.3d at pp. 540-541 [carrying concealed, loaded handgun “is consistent with intent to kill a rival gang member even it if does not provide solid evidence of prior planning to kill this particular victim”].)

         And, third, the manner of killing showed premeditation. Loaiza fired multiple shots directly at the victims' vehicle; Munoz attempted to do so, but his gun jammed. Thus, the men acted in concert to attack their perceived enemies. According to Espindola's statements, the shooting was an ambush, and according to both him and Carrillo, no one in the SUV shot at the Mitsubishi or had a gun. This account was corroborated by the fact that the SUV was hit with multiple bullets, whereas the Mitsubishi was not. (See People v. Bolin (1998) 18 Cal.4th 297, 332 [firing multiple gunshots at victims supported finding of premeditation]; cf. People v. Romero, supra, 44 Cal.4th at p. 401 [evidence of execution style killing, without a struggle by the victim, indicates premeditation and deliberation].) This unprovoked shooting at close range suggested premeditation and deliberation. In short, the evidence was sufficient. (See People v. Romero, at p. 401; People v. Boatman (2013) 221 Cal.App.4th 1253, 1266.)

         Munoz argues that the “only evidence” relating to his and Loaiza's actions immediately preceding the shooting was Rojas's testimony that he picked the men up and they unexpectedly encountered the SUV; there was “basically no evidence” of planning; and the shooting was “spontaneous” and reflexive. Not so. Munoz's statements to the confidential informant suggested the encounter was not unexpected: his group went looking for the Brown Authority gang rivals who had accosted Loaiza, or at the very least, recognized them and shot when the two cars passed by. Loaiza's statement upon seeing the SUV, “ ‘those are those fools right there,' ” likewise demonstrated such recognition. The fact both Munoz and Loaiza coordinated the attack was inconsistent with a finding the shooting was unplanned and spontaneous, as was the fact they each brought a loaded gun in the car. Further, Espindola testified his group was unarmed and did not shoot, undercutting the argument that Munoz's and Loaiza's actions were simply reflexive. Even assuming Munoz's group was not seeking out Espindola's group, the evidence was sufficient to show that, once they happened upon them, the shooting was premeditated, willful, and deliberate. “Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849; People v. Rand, supra, 37 Cal.App.4th at pp. 1001-1002 [sufficient evidence of premeditation where defendant committed a drive-by shooting, aiming at stranded persons whom he believed were rival gang members; “[t]he law does not require that an action be planned for any great period of time in advance” and a “ ‘cold and calculating decision to kill can be arrived at very quickly' ”].)

         2. The trial court did not ...


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