THE PEOPLE v. ARMANDO MARTINEZ JR

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MARTINEZ, JR., Defendant and Appellant.

B216964

Decided: November 23, 2010

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Armando Martinez, Jr. appeals from a judgment of conviction entered after a jury found him guilty of attempted first degree murder and assault with a semiautomatic firearm.   He was not the shooter, and contends that insufficient evidence supported his conviction as an aider and abettor.   We find that substantial evidence supports the verdicts, and affirm the judgment.

BACKGROUND

Procedural Background

In an amended felony information, appellant and codefendant Natividad Delossantos were charged in count 1 with the attempted first degree murder of Enrique Pinela, in violation of Penal Code sections 664, 187, subdivision (a),1 in count 5, with assault upon Pinela with a semiautomatic firearm, in violation of section 245, subdivision (b), in count 6, with assault upon Margaret Campbell with a semiautomatic firearm, in violation of section 245, subdivision (b), and in count 7, with assault upon Nubia Verdin with a semiautomatic firearm in violation of section 245, subdivision (b).

As relevant to appellant, the information specially alleged as to all counts that a principal personally used and personally discharged a firearm (§ 12022.53, subds.(b) and (e)(1)), and that each defendant committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(B).)

After a trial by jury, appellant moved to dismiss the charges pursuant to section 1118.1, and the motion was denied.   The jury convicted appellant and Delossantos of all counts, and found all special allegations to be true.   Appellant then moved for a new trial, which was also denied.

On June 16, 2009, the trial court sentenced appellant to a total of 35 years to life in prison, consisting of life as to count 1, plus 15 years for the gang finding, pursuant to section 186.22, subdivision (b)(5), enhanced by 20 years due to the firearm use, pursuant to section 12022.53, subdivisions (c) and (e).   With regard to count 5, the trial court imposed the middle term of six years, stayed pursuant to section 654, along with the gang and firearm enhancements.   As to each of counts 6 and 7, the court imposed the middle term of six years, to run concurrently with the term imposed on count 1, with the gang and firearm enhancements stayed pursuant to section 654.

Appellant filed a timely notice of appeal.

Prosecution Evidence

On September 21, 2007, at approximately 10:00 p.m., Nubia Verdin was working behind the counter as the cashier at the American Market on Lake Street in Glendale.   Margaret Campbell came into the store to buy cigarettes, while her boyfriend, Enrique Pinela remained outside.   While Pinela was outside talking to a friend of Verdin's, Jose Hernandez Gutierrez, Delossantos and appellant arrived in a beige Pontiac Grand Prix automobile, driven by Delossantos.   Delossantos and appellant both said they were from “Burbank Trece,” and asked Pinela where he was from, meaning what was his gang affiliation.   Pinela told them that he had belonged to the 18th Street gang in the past, but that he no longer did, and that he was there with his family and did not want trouble.   The men responded by cursing the “Westside Locos,” a Glendale gang.

Both Delossantos and appellant then began hitting Pinela.   Pinela fought back, and someone from the street joined the fray in an effort to help Pinela.   For most of the fight, appellant was occupied in fighting that person.   Delossantos went to the car to retrieve a gun.   Pinela somehow knew that Delossantos intended to get a gun, and asked him why.   Appellant then attacked Pinela again, which gave Delossantos time to obtain the gun.   Gutierrez testified at trial that Delossantos went to the passenger side of the car, and took the gun “from under where he places his feet.”

When Delossantos returned, he pointed the gun close to Pinela's right temple and pulled the trigger two or three times, which resulted only in clicking noises.   Pinela then ran into the market and past Verdin and Campbell, who were hiding behind the counter by that time.   Delossantos stood in the doorway, pointed the gun at Pinela, and fired several shots in his direction.   One bullet hit a container of tomato sauce or ketchup, which spattered its contents onto Pinela.   That bullet and another bullet were found in areas where Pinela had run, and another was found in the back of the store.   Both assailants then yelled out, “Burbank Trece,” and left the scene.

Witnesses were shown a security video that had captured the incident.   Verdin identified Delossantos as the shooter, but was unable to identify his companion.   Gutierrez identified both defendants.   He was 100 percent sure of his identification of Delossantos as the driver and the shooter, but only 50 percent sure of his identification of appellant.   At trial, appellant looked thinner and wore glasses, but had not been wearing glasses at the time of the shooting.

Jesse Flores, testified that he was Delossantos's cousin, and recognized appellant, because they went to the same high school, although they were not friends.   He reluctantly testified that he had heard people call appellant, “Baby” or “Baby Boy,” and that he had seen his cousin and appellant together, when appellant came with his children to visit his aunt.

Glendale Police Department Detective Rafael Quintero interviewed Flores on September 27, 2007, six days after the shooting;  Flores told him that he had seen his cousin “hanging out” with Baby Boy, a member of the Burbank Trece gang, with whom Flores had gone to high school.   They were not supposed to hang out together, because Delossantos was a member of Elmwood, a rival gang, but Flores had seen them together three of four times during the preceding week or so, and they had gone to a Dodger game together on September 25.

Glendale Detective Sean Riley recovered a telephone from Delossantos at the time of his arrest.2  “Baby Boy” was programmed into the telephone as a contact, and the call history showed that someone had made calls to “Baby Boy,” including one on September 21, 2007, less than two hours before the shooting, and three more on September 22.

Burbank Police Detective Mark Stohl testified as the prosecution's gang expert.   He testified that the Burbank Trece gang had approximately 10 to 15 active members, but its membership was shrinking.   In the past, it had had more than 100 members;  now, Detective Stohl does not often see its members out in the neighborhood.   Burbank Elmwood had between 10 and 20 active members.   The primary activities of both gangs ranged from vandalism, such as spray painting on walls, breaking car windows, and damaging cars by cutting open convertible tops, to vehicle burglary, residential burglary, possession of firearms, auto theft, witness intimidation, robbery, shootings, attempted murders, mayhem, and assault with a deadly weapon.3

Detective Stohl described the common symbols used by members of the Burbank Trece and Burbank Elmwood gangs, and the usual methods of becoming gang members.   Some were raised in the gang by family;  some were “jumped in,” which meant enduring a beating for about 13 seconds;  some were “crimed” into a gang, by committing a crime for or with the gang;  and some were “walked” into a gang, meaning sponsored by a family member.

Detective Stohl testified that appellant, whose moniker is “Baby Boy,” had been a member of the Burbank Trece gang for many years, and no one else from his gang used the moniker Baby Boy. Delossantos, whose gang moniker was “Cholo,” had been a member of Burbank Elmwood for many years.   Detective Stohl produced photographs of the defendants showing their gang related tattoos.

Traditionally, the Burbank Trece and Burbank Elmwood gangs were enemies.   Detective Stohl had not heard that Delossantos had ever been seen in the company of a member of Burbank Trece prior to this shooting.   However, in June 2007, he saw Burbank Trece member Michael “Demon” Garcia in a car driven by Elmwood member Tran “Chinito” Nguyen.   Both men had a history of selling drugs, but Detective Stohl's information was that they had been doing so independently of each other.

Detective Stohl testified that gang members knew their boundaries and those of rival gangs, and controlled their territory with violence and intimidation.   Upon leaving his own territory, a gang member would carry a weapon.   Ordinarily a “gang gun” would be kept in a safe location, usually not a member's house, and periodically moved from location to location, to be available when a rival gang member was seen in the area.

Respect was very important to gangs.   Disrespect would be punished, while respect earned respect in return.   Committing crimes enhanced the gang's respect and allowed gang members to ascend the gang hierarchy.   A Burbank Trece member could gain credit from his gang by yelling out the gang's name at the time of a shooting.

When gang members carried out a “mission”--a crime committed by more than one gang member--they would assign roles, such as driver, lookout, or shooter.   A gang member must support fellow gang members or lose face, and would be branded a coward and weak if he did not back his “homies,” or friends.   The result could be that the member would be “green-lighted,” meaning targeted for assault by any member of any gang.

Burbank Trece and Burbank Elmwood both considered the Westside Locos, a Glendale-based street gang, to be an enemy, and American Market was located in the heart of Westside Locos territory.   The rivalry was more intense with Elmwood, and between 2001 and 2007, Elmwood and the Westside Locos waged war with regular shootings.   Detective Stohl testified that asking, “Where are you from?” is a typical gang challenge that precedes an assault, usually with fists, bats, clubs, guns, knives, any type of weapon was a typical challenge, and the wrong answer would usually precipitate an assault with fists, bats, clubs, guns, knives, or any type of weapon.4

Defense Evidence

In his defense, Delossantos called Rick Pruett, who testified that he had been acquainted with Delossantos since 2003, and had employed him in his home repair business, working in painting, drywall, and tile setting.   He was a hard worker, and Pruett had no problems with him.   When Pruett saw Delossantos's tattoos, he worried that clients might feel uneasy about letting him into their homes, but Pruett had no complaints about him.   Pruett did not think Delossantos was an active gang member, and would not have employed him if he had been.

Appellant called Cynthia Edison, an expert in fingerprint collection and comparison for the Glendale Police Department.   She processed the Grand Prix automobile registered to Delossantos's mother, and found no prints that matched either defendant.   She found a fingerprint outside the front passenger window, and matched it to Jesse Flores.

Rebuttal

The prosecution called appellant's mother, Corina Delgado.   She testified that appellant was arrested after he turned himself in on September 27, 2007.   That September, she had season tickets to the Dodgers games, and appellant picked some up from her on September 25, 2007.   She thought he picked them up to give to her niece, who had bought them from her, but did not know whether appellant had gone to the game.

Stipulation

The parties stipulated that if firearms expert Anthony Paul testified, he would testify that he watched the video of the incident and was unable to determine the type of 380 semiautomatic handgun used in the shooting, but that all 380 semiautomatic handguns had a slide which must be pulled back, in order to inject a cartridge into the firing chamber.   Squeezing the trigger would not cause the weapon to fire, unless the slide had first been pulled back.   It would simply cause the weapon to make a metallic clicking sound.   The gun used in the video demonstration prepared for trial was a SIG Sauer 226 semiautomatic gun, which produced a louder clicking noise than a 380 semiautomatic handgun would.

DISCUSSION

Substantial Evidence Supported the Convictions

Appellant contends that the evidence was insufficient to support his convictions of attempted murder and assault with a firearm.   He was not the shooter, and argues that he could not have been liable as an aider and abettor, because none of the witnesses testified that he knew there was a gun in the car, or that Delossantos intended to use it, and none testified that he encouraged Delossantos by words or conduct.

When a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578.)   We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence.  (People v. Kraft (2000) 23 Cal.4th 978, 1053.)  “The same standard applies when the conviction rests primarily on circumstantial evidence.  [Citation.]”  (Ibid.) We do not reweigh the evidence or resolve conflicts in the evidence.  (People v. Young (2005) 34 Cal.4th 1149, 1181.)

When “an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense), ․ the accomplice may be held responsible for that nontarget offense ․ [under] the ‘natural and probable consequences' doctrine․”  (People v. Prettyman (1996) 14 Cal.4th 248, 259-260.)   Under that doctrine, an aider and abettor may be convicted “ ‘not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets․  [He] need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator.   His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.   It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which ․ must be found by the jury.’   [Citation.]”  (Id. at p. 260.)

Appellant has summarized the facts of four cases in which there was evidence that the defendant knew his cohort had a weapon, suggesting that the difference in circumstances, particularly his asserted ignorance of the presence of a gun, precludes his liability for the shooting.  (See People v. Medina (2009) 46 Cal.4th 913, 924;  People v. Montes (1999) 74 Cal.App.4th 1050, 1056 (Montes );  People v. Olguin (1994) 31 Cal.App.4th 1355, 1376;  People v. Godinez (1992) 2 Cal.App.4th 492, 499-500.)   But our Supreme Court pointed out in the first of the four cited cases, the facts of the remaining cases are not minimum prerequisites to a finding of foreseeability.  (People v. Medina, supra, at pp.   921-922.)   Thus, “prior knowledge that a fellow gang member is armed is not necessary to support a defendant's murder conviction as an aider and abettor.  (People v. Montes, supra, 74 Cal.App.4th at p. 1056 [‘[g]iven the great potential for escalating violence during gang confrontations, it is immaterial whether [defendant] specifically knew [fellow gang member] had a gun’];  People v. Godinez, supra, 2 Cal.App.4th at p. 501, fn. 5, [‘although evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite’]․)  Likewise, prior gang rivalry, while reflecting motive, is not necessary for a court to uphold a gang member's murder conviction under an aiding and abetting theory.  (See People v. Olguin, supra, 31 Cal.App.4th at pp.   1382-1383 [gang enhancement upheld even though no evidence of ‘prior relationship between the killers and their victim, and no reason for animosity other than gang-related insults'].)”  (People v. Medina, supra, at p. 922.)

We thus reject appellant's suggestion that a conviction of the attempted murder or assault with a firearm as an aider and abettor necessarily requires a finding that he knew there was a gun in the car, that Delossantos intended to use it, or that he encouraged the shooting.  “The only requirement is that defendant share the intent to facilitate the target criminal act and that the crime committed be a foreseeable consequence of the target act.  [Citation.]”  (People v. Godinez, supra, 2 Cal.App.4th 492, 501, fn. 5, citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)

Substantial evidence supports a finding that appellant intended to facilitate the target offense of assaulting Pinela on behalf of the Burbank Trece gang.   As soon as the defendants arrived at the market, both of them approached Pinela, announced that they were from Burbank Trece, challenged Pinela by asking where he was from, cursed the Westside Locos, in whose gang territory they were in, and then assaulted Pinela, apparently believing that he was a member of the enemy gang.   Detective Stohl testified that committing crimes while yelling out the gang's name enhanced the gang member's and the gang's respect.   He also testified that a gang member would lose face if he did not support his “homie.”   A reasonable inference may be drawn from this evidence that the two assailants entered rival gang territory with the intent to commit an assault, and with the intent to support each other by facilitating the attack.

A shooting is the natural and probable consequence of verbal taunts and physical violence among gang members.  (People v. Montes, supra, 74 Cal.App.4th at p. 1056.)   Detective Stohl testified that gang members armed themselves prior to entering rival gang territory, and that the utterance of gang challenges would often result in violence involving weapons.   Here, appellant and Delossantos entered the territory of their common enemy, the Westside Locos, apparently intending to assault someone, uttered gang challenges, and claimed the Burbank Trece gang after committing the crime.

Nevertheless, appellant contends that a jury could not reasonably draw the conclusion that the shooting was foreseeable, because he and Delossantos belonged to separate, rival gangs.   He argues that the two defendants thus could not be considered “homies,” which made it unlikely that they would support each other or conduct a “mission” together.   We disagree.   The evidence showed that appellant and Delossantos, although members of rival gangs, were friends.   According to Flores, Delossantos's cousin, the two were not supposed to “hang[ ] out” together, but they did, and Flores had seen them together three or four times during the week of the shooting.

Although Detective Stohl testified that Elmwood and Burbank Trece members did not ordinarily associate with each other, and that falsely claiming a different gang could bring negative repercussions, members sometimes disassociated themselves from their gangs.   Further, although Detective Stohl believed that Delossantos was an active member of the Burbank Elmwood gang, he acknowledged that the Glendale Police Department had not documented his membership in the past five years.   He also testified that a common way to become a member of a gang was to be “crimed” into it, by committing a crime for or with the gang.   The defendants' verbal challenges and announcement of the name of appellant's gang showed that the crime was committed on behalf of or in association with the Burbank Trece gang.

Furthermore, appellant's knowledge of the gun's presence was not speculative, as appellant urges.   Substantial evidence supports an inference that appellant knew the gun was in the car and intended to facilitate the shooting.   Appellant and Delossantos entered rival gang territory with a gun in their car.   Detective Stohl testified that gang members normally carry a weapon upon leaving their own territory.   Further, because Delossantos retrieved the gun from the passenger side where appellant sat and from the floor where he put his feet, the jury could reasonably infer that appellant knew it was there.   When Pinela described the events for Officer Bryan Duncan just after the shooting, he said he could tell that Delossantos meant to retrieve a gun when he went back to the car.   As Pinela was asking Delossantos why he was getting a gun, appellant jumped him again, which the jury could reasonably infer was to give Delossantos time to get the gun.

We are satisfied that substantial evidence supports the jury's finding that the shooting was a reasonably foreseeable consequence of the defendants' conduct in committing the target offense of physically assaulting Pinela.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, J.

DOI TODD

We concur:

_, P. J.

BOREN

_, J.

CHAVEZ

FOOTNOTES

FN1.  All further references are to the Penal Code, unless otherwise indicated..  FN1.  All further references are to the Penal Code, unless otherwise indicated.

FN2. The telephone service was not under Delossantos's name..  FN2. The telephone service was not under Delossantos's name.

FN3. Detective Stohl produced certified docket sheets showing the felony convictions of the following Burbank Trece gang members:  Jesus Adrian Romero, convicted of a violation of section 12031, subdivision (a), in 2007;  and Michael Rodolfo Garcia, convicted of a violation of Health and Safety Code section 11278 in 2005.   Detective Stohl produced evidence of the felony convictions of the following Burbank Elmwood gang members:  Bobby Leyva, convicted of a violation of section 12021 in 2007;  and Randy Allan Ramirez, convicted of a violation of section 245, subdivision (a)(1), in 2006..  FN3. Detective Stohl produced certified docket sheets showing the felony convictions of the following Burbank Trece gang members:  Jesus Adrian Romero, convicted of a violation of section 12031, subdivision (a), in 2007;  and Michael Rodolfo Garcia, convicted of a violation of Health and Safety Code section 11278 in 2005.   Detective Stohl produced evidence of the felony convictions of the following Burbank Elmwood gang members:  Bobby Leyva, convicted of a violation of section 12021 in 2007;  and Randy Allan Ramirez, convicted of a violation of section 245, subdivision (a)(1), in 2006.

FN4. Detective Stohl did not have much information about a rivalry with Pinela's former gang, the 18th Street gang, which was a North Hollywood clique or group whose members did not usually come into Burbank, although he had seen some 18th Street graffiti in Burbank..  FN4. Detective Stohl did not have much information about a rivalry with Pinela's former gang, the 18th Street gang, which was a North Hollywood clique or group whose members did not usually come into Burbank, although he had seen some 18th Street graffiti in Burbank.