THE PEOPLE v. RIGOBERTO MEJIA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUMMARY

Defendant Rigoberto Mejia contends his conviction for the attempted premeditated murder of Jesus Amaya should be reversed for two reasons:  insufficient evidence for the jury's finding of premeditation and prosecutorial misconduct.   Neither claim has merit, so we affirm the judgment.

FACTS

Defendant was a member of the Kings Have Arrived (KHA) gang.   One morning in November 2009, defendant was riding in the front passenger seat of a car driven by a friend, co-defendant Nancy Del Rio. Roxanna Reyes, a friend of Del Rio's, was in the back passenger seat.   Del Rio had offered Reyes, who lived across the street from defendant, a ride to school, and Reyes accepted so she would not be late to school.   Reyes was not a gang member, but her brother belonged to KHA. After Reyes got in the car, Del Rio drove in the opposite direction from Reyes's high school.   While they were driving, Reyes saw defendant “loading his gun”;  defendant “had it on the side of him like towards the door and he was just putting the bullets in the gun.”   As they approached the corner of Athol and Fairgrove in Baldwin Park, defendant said to stop the car.   Del Rio stopped and defendant got out of the car.   Before defendant got out of the car, Reyes heard defendant say, “There he is.   There he is.”   After defendant got out of the car, Reyes heard five or more gunshots;  she estimated she heard the shots “[l]ike a couple, like two minutes” after defendant got out of the car.   Defendant came back to the car “[l]ike a couple minutes” after the gunshots.   They left and Del Rio drove Reyes to school.

The victim, Jesus Amaya, was an associate of the Eastside Bolen Parque gang, a rival gang to KHA. He was standing at the bus stop on Athol and Fairgrove, in Eastside Bolen Parque territory, waiting for the school bus, when defendant came up to him and pointed a gun at him.   When defendant pointed the gun at him, Amaya ran across the street between cars.   Defendant ran after him and shot at him nine times, hitting him twice, once in the left side of his abdomen area and once in the back, in his left shoulder blade.   A school bus driver saw defendant pointing a gun at Amaya and saying something to him.   She “radioed [in to] the school police.”   She saw Amaya run across the street, and defendant “kind of run after him, but he was shooting him.”   Defendant then ran back to “a car there waiting for him.”   Defendant got in the car and the car moved away.

The police recovered nine casings from a .22–caliber semiautomatic gun at the scene, and found an unspent .22–caliber bullet in defendant's bedroom.

Defendant and Del Rio were charged with attempted willful, deliberate, and premeditated murder and with associated firearm and gang enhancements.   Defendant testified at trial.   He said he had asked Del Rio for a ride to a friend's home to buy marijuana.   He told Del Rio to stop when he saw Amaya at the bus stop.   He had been “having problems” with Amaya, who had insulted defendant's former girlfriend.   He had previously had a fist fight with Amaya.   He did not know Amaya would be at the bus stop, and when he saw him, he wanted to confront him about their personal problems.   Defendant confronted Amaya, who made “a little sudden move that startled [defendant,]” so defendant pulled his gun out and started shooting.   Amaya “left running” and defendant chased him and kept shooting at him.   Defendant said Amaya “never fell so I never knew if I struck him or not.”

The jury found defendant guilty of attempted murder, and found he committed the attempted murder willfully, deliberately and with premeditation.¹  The jury also found true three firearm enhancements, including personal and intentional discharge of a firearm proximately causing great bodily injury, and found the offense was committed for the benefit of a criminal street gang.   The trial court sentenced defendant to life with the possibility of parole (with a finding that defendant is not eligible for parole for 15 years), plus 25 years to life for personally discharging a firearm causing great bodily injury.   (Pen.Code, § 12022.53, subd. (d).)  The remaining firearm enhancements were stayed under Penal Code section 654, and various other orders were made that are not at issue in this appeal.

DISCUSSION

Defendant first challenges the sufficiency of the evidence of premeditation.   His claim has no merit.

The relevant principles are described in People v. Perez (1992) 2 Cal.4th 1117 (Perez ), a case involving premeditated and deliberate murder.  “Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation․”  (Id. at p. 1124.)   We review the entire record in the light most favorable to the judgment “to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt.”  (Ibid.) “ ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.   If the circumstances reasonably justify the trier of fact's findings, the

Here, there is no basis at all for questioning the jury's decision.   An attempted murder is done with premeditation and deliberation if, as the jury was instructed, defendant “carefully weighed the considerations for and against his or her choice and, knowing the consequences, decided to kill.   The defendant premeditated if he or she decided to kill before acting.”   The jury was further instructed that “[t]he amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances.   A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated.   On the other hand, a cold, calculated decision to kill can be reached quickly.   The test is the extent of the reflection, not the length of time.”  (See Perez, supra, 2 Cal.4th at p. 1127 [“ ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly․’ ”].)

Here, defendant asserts there is no evidence he planned to shoot Amaya when they set out in the car, he always carried a gun for protection, Del Rio did not know the shooting was about to take place (as evidenced by a 10–to–two jury vote for acquittal in her case), and Reyes's credibility was “called into question” because of the “discrepancy” in her testimony that she saw defendant load bullets into his gun (whereas semiautomatic weapons hold bullets in a magazine and are not loaded like a revolver).   None of this helps defendant, as the jury was entitled to draw contrary inferences from the evidence.

The facts are that defendant was loading his gun in the car;  said “[t]here he is” when he saw Amaya, an associate of a rival gang with whom he had had a disagreement;  told Del Rio to stop the car;  and intended to confront Amaya.   Further, Amaya, who was unarmed, ran away and defendant chased him, firing at him nine times.   From these facts the jury could reasonably infer that defendant made a “cold, calculated judgment” (Perez, supra, 2 Cal.4th at p. 1127) and decided to kill Amaya before he shot at him nine times.   It is not within our province to determine otherwise.  (Id. at p. 1124.)

Defendant also contends that prosecutorial misconduct denied him a fair trial.   He bases this claim on two incidents.   First, during closing argument the prosecutor said that the evidence showed Del Rio was a gang member, whereas the prosecution's gang expert said she was an associate (a level down from being an actual gang member).   Second, at trial the gang expert mentioned—when asked by defense counsel whether police had found “any T-shirts, anything which link to KHA” during a search of Del Rio's house—that “[t]hey did find a phone.”   Defendant says the prosecutor should have instructed his witness “not to blurt out information about a cell phone,” because the prosecutor had told the defense it did not intend to use the cell phone at trial.  (A search warrant for Del Rio's home did not cover photographs that were obtained from the cell phone, none of which were placed in evidence.)

There was no misconduct in either instance.   A prosecutor's conduct violates the federal constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.”  (People v. Morales (2001) 25 Cal.4th 34, 44.)   And, where the prosecutor's conduct does not render the trial fundamentally unfair, it violates state law “only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.”  (Ibid.) Here, there was no unfairness and no use of deceptive or reprehensible methods.   The prosecutor's argument to the jury was just that:  argument.   Indeed, when counsel for Del Rio objected on the ground the prosecutor's argument misstated the testimony, the court overruled the objection, observing that “[i]t's argument.   The jury knows they are the fact-finders and they must base their determination on the evidence, and counsel's statement is not evidence.”   Moreover, it is hard to see how an argument about Del Rio's status (or not) in the gang could generate any unfairness vis-à-vis defendant, who was an admitted gang member.

There is even less merit in defendant's claim of misconduct relating to the gang expert's mention that a phone was found in Del Rio's home.   The witness was answering an open-ended question from Del Rio's counsel.   The trial court observed that the prosecutor “already did” tell the witness he could not talk about the phone, and “you're [Del Rio's counsel] the one asking him and it is the truth․  So you've got to stay away from it or you're opening the door.   So it's you.”   There is no basis for an assertion of prosecutorial misconduct in these circumstances.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WE CONCUR:

FOOTNOTES

FN1. The jury could not agree on a verdict as to Del Rio and the court declared a mistrial..  FN1. The jury could not agree on a verdict as to Del Rio and the court declared a mistrial.

BIGELOW, P. J. RUBIN, J.