California Court of Appeals, Second District, Eighth Division
Cal.Rptr.3d 309] APPEAL from a judgment of the Superior Court
of Los Angeles County, Ronald Coen, Judge. Affirmed. (Los
Angeles County Super. Ct. No. BA462582)
M. Hinkle, Oceanside, under appointment by the Court of
Appeal, for Defendant and Appellant David Venegas.
Kaiserman, Van Nuys, 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.
Sebastian 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,
242 Cal.Rptr.3d 268. We affirm. Unspecified citations are to
the Penal Code.
Venegas 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 passing through.
Santana had a bad history with Vargas. Vargas had wounded
Santanas 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 casinos
entrance and gunned down a man he thought was Vargas but who
actually was Acevedo. Venegas and Santana fled. Vargas
escaped. Acevedo died.
Separate juries convicted Venegas and Santana on all counts.
One jury found Venegas guilty of first degree murder, while
the second jury convicted Santana of [257 Cal.Rptr.3d 310]
aiding and abetting murder in the second degree.
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
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 Venegass arguments.
Venegass 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 Santanas brothers
phone. An officer read them to Venegass jury. Venegas does
not challenge this process. Rather Venegas claims the texts
were inadmissible hearsay and violated the Confrontation
Venegas 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 kill
Evidence 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:
1. "[S]ee if sponge wants to sell that for five [hundred
dollars]. I just want [to] get rid of [the gun]."
2. "[S]ponge just texted me.... [$520 is a] done
3. "Ill have Sponge meet you somewhere and give it to
you. And youll go ...