California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County
No. BA462582, Ronald Coen, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal,
for Defendant and Appellant David Venegas.
Kaiserman, under appointment by the Court of Appeal, for
Defendant and Appellant Sebastian Santana.
Becerra, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Roberta L. Davis, Deputy Attorney General,
for Plaintiff and Respondent.
Santana and David Venegas were trying to shoot Juan Vargas
but murdered Fabian Acevedo instead. The appellate issues
include two evidence problems, several sentencing questions,
challenges to the sufficiency of the evidence and to a jury
instruction, and requests for hearings under People v.
Dueñas (2019) 30 Cal.App.5th 1157. We affirm.
Unspecified citations are to the Penal Code.
and Santana were in the Winter Gardens gang, which was locked
in a border war with the Fraser Maravilla gang. Vargas was in
Fraser Maravilla. Venegas and Santana sought to kill him but
instead shot Acevedo, who belonged to no gang and was just
had a bad history with Vargas. Vargas had wounded
Santana's brother, and Santana had vowed to shoot Vargas
on sight if he got the chance.
deadly day, Santana and Venegas were out prowling for rivals
to shoot. They were not looking for anyone in particular. Any
enemy would do. Santana drove a car and Venegas was on a
motorcycle along the contested frontier. Santana spied Vargas
on foot as he drove by. They made eye contact, prompting
Vargas to flee towards a nearby casino. Santana directed
Venegas to go shoot Vargas. Venegas rode to the casino's
entrance and gunned down a man he thought was Vargas but who
actually was Acevedo. Venegas and Santana fled. Vargas
escaped. Acevedo died.
juries convicted Venegas and Santana on all counts. One jury
found Venegas guilty of first degree murder, while the second
jury convicted Santana of aiding and abetting murder in the
addition to a murder sentence, the trial court imposed on
Santana a sentence enhancement of 25 years to life for
discharging a firearm that caused death. (§ 12022.53,
subd. (d).) The court imposed and stayed sentences for lesser
gun enhancements. The court followed the same sentencing
pattern for Venegas.
appeal, Venegas and Santana have filed separate briefs.
Venegas makes two arguments for himself alone, while Santana
makes four arguments applying only to his case. Then they
make two shared arguments. We proceed in that order.
begin with Venegas's arguments.
first argument concerns evidence. This evidence was a series
of text messages from Santana to his brother, who was not a
defendant and who did not testify. These texts were
prosecution obtained the texts from Santana's
brother's phone. An officer read them to Venegas's
jury. Venegas does not challenge this process. Rather Venegas
claims the texts were inadmissible hearsay and violated the
trains his attack on five texts Santana sent to his brother.
All five involved Venegas, whom Santana called
“Sponge.” These messages relate to an
unchallenged earlier text, which was a photo of a.45 caliber
pistol. Other evidence suggested Venegas used this gun to
analysts must pay close attention to the precise words or
things at issue. So we quote the five challenged messages,
adding bracketed context for clarity:
if sponge wants to sell that for five [hundred dollars]. I
just want [to] get rid of [the gun].”
just texted me.... [$520 is a] done deal.”
have Sponge meet you somewhere and give it to you. And