Opinion
H036710
02-10-2012
IN RE JORGE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JORGE M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. J22005)
The minor, Jorge M., admitted aiding and abetting the murder of Jose Barajas for the benefit of or in association with a criminal street gang (Penal Code, §§ 187, 186.22, subd. (b)(1)), and actively participating in a criminal street gang (§ 186.22, subd. (a)). Based on the prosecutor's description of the factual basis for the minor's admissions, the juvenile court found that the murder was in the first degree. The court committed the minor to a ranch camp until the requirements of the program have been satisfactorily completed.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, the minor contends that there is insufficient evidence to support the juvenile court's finding that a first degree murder was a natural and probable consequence of the assault committed by several of the minor's fellow gang members on Barajas. We disagree, and will affirm the juvenile court's commitment order.
BACKGROUND
On August 3, 2009, a Welfare and Institutions Code section 602 petition was filed charging the minor, then age 14, with the murder of Jose Barajas for the benefit of and in association with a criminal street gang (§§ 187, subd. (a), 186.22, subd. (b)(1); count 1), and with actively participating in a criminal street gang (§ 186.22, subd. (a); count 2). On December 6, 2010, the minor entered into a negotiated disposition wherein he admitted the allegations in count 1 "as an aider and abettor," as well as the allegations in count 2, with the understanding that he would not be committed to the Department of Juvenile Justice (DJJ). The prosecutor recited the factual basis for the admission of the allegations in count 1 as follows.
As the minor raises no issues regarding count 2, we will not set forth the prosecutor's recitation of the factual basis for that admission.
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"[O]n April 29th of last year at approximately 7:14 p.m.[,] Jose Barajas called 911 for the second time that day. He had earlier been robbed of his bicycle and reported that to 911. He reported to the Watsonville Police Department that a person by the name of Diablo, who is Manual Mesa, a member of Loco Park Watsonville, and four to five other members of Loco Park Watsonville had committed the robbery.
"Thereafter at 7:14 he called 911 again from his cell phone and he told the dispatcher that the Loco Parkers were at his home harassing him again. There was an extraordinarily too long colloquy between himself and the dispatcher about his ability to provide a street address where he lived on the river. The line then goes dead. Immediately beforehand you can hear grunting sounds and what appeared to be thumping sounds.
"Mr. Barajas is seen emerging from the tree line, his home being behind the tree line on the Watsonville levee. He runs out of the tree line. He's chased by approximately ten - somewhere between eight and ten members of Loco Park, all of whom, according to witnesses, were armed with sticks, one of whom was armed with a visible knife. Thereafter Mr. Barajas was murdered[. A]ccording to Dr. Mason, the coroner in this county, Mr. Barajas was hit at least at an absolute minimum a number of times, four times in the head with a stick or pipe, and at least two of those strikes were with the end of the pipe in his head.
"In addition, he was struck no fewer than three times by a pipe or a stick on his upper torso and bruises documenting those injuries are visible. So Dr. Mason also opines that he was struck at least three times and perhaps more times on his body.
"The causes of death to Mr. Barajas were his carotid artery being cut when he was stabbed one of three times, once in the neck, and in addition blunt force trauma to his head."
"[The minor] was seen in between the times of the robbery and the murder in the park with other associates of Loco Park in that approximately hour-and-a-half before the murder was committed.
"Following the murder there was a three-month long investigation. At the culmination of that investigation ten people were arrested, one of whom was [the minor].
"On the date that he was arrested his house was searched. There were in excess of 30 photographs on his computer that are gang related; gang members throwing signs, actually members of Loco Park who were down by the encampment that Loco Park had on the Watsonville levee. And thereafter he was interviewed by two District Attorney inspectors, Henry Montes and Robert Montes. During that interview he admitted that Loco Park member by the name of Ivan Vaca, who goes by Bandit, told himself and Rodrigo Garcia to post up while members of Loco Park committed a jale, which is j-a-l-e, and literally translates to job, but in the local vernacular is committing a violent act.
"He said that he did not watch the murder, although I don't believe that was a credible portion of his interview, and admitted that when he saw police he called Ivan Vaca on his cell phone and told him that the placa, p-l-a-c-a, police were there and at that point all the members who had been assaulting Jose Barajas fled."
"With regard to the People's theory of liability, it is aider and abettor liability, which in common language translates to if you know somebody is committing a felony and you help them you are just as guilty as the people who actually committed the felony; in this case murder."
Following the recitation of the factual bases for the pleas, the court found beyond a reasonable doubt that the minor committed the offenses as alleged in the petition. The court then gave the parties the opportunity to brief the issue of whether the court should find the murder to be in the first or second degree based on the facts the prosecutor had recited. "So I'm giving you an opportunity to present some research, and I'll reserve my final ruling until I have an opportunity to look at that."
The minor filed a brief on December 20, 2010, arguing that, because of the absence of any language in the petition indicating that the murder was committed in one of the manners specified in section 189, as well as the absence in the prosecutor's factual basis for the admission establishing beyond a reasonable doubt one of those specified manners, the court should find the murder to be in the second degree. On January 14, 2011, the prosecutor filed a brief arguing, based on discussions not placed on the record, that the terms of the plea agreement was that the minor was admitting a first degree murder with the understanding that the court would not commit him to DJJ. On January 21, 2011, the date set for the disposition hearing, the court filed a copy of a brief which the prosecutor had emailed to the judge on December 17, 2010, but which the judge had not yet read. In the brief, the prosecutor argued that the factual basis for the plea recited on the record established a prima facie showing of first degree murder. The minor's responsive brief contended that the facts of the case were insufficient for a finding beyond a reasonable doubt that the murder was deliberate and premeditated. The court continued the matter to January 24, 2011.
On January 24, 2011, after the parties submitted the matter, the court stated that the plea agreement did not require the minor to admit a first degree murder; the off-the-record discussions had centered on the fact that the prosecutor would not agree to amend the petition to allow the minor to plead to a lesser charge. The court then ruled as follows: "[T]he theory of the case which has been consistent throughout the last 17 months and discussions with Counsel, is that of an aider and abettor.
"Under Penal Code Section 31 an aider and abettor is responsible for all the conduct of the direct actors. In this case we do have [the minor] that is involved in a street criminal gang conduct activity, and in the factual statement there was an outline of his posting up while gang members committed a jale which meant a violent attack on another person. And while I believe that [the minor] is very much a follower and not a master mind of the criminal conduct, which was committed on Mr. Barajas, he, however, under a criminal theory of an aider and abettor is legally responsible for all of the criminal conduct of his co-actors.
"The co-actors in this case were, in fact, older juveniles, some juveniles his same age, obviously more sophisticated, obviously more violent in their nature, and adults who have been involved with the gang for a very long time. The co-actors utilized weapons of various sorts, including pipes, knife, sticks or pieces of wood. They pursued Mr. Barajas in that they chased him to the point of where they attacked him and did brutally inflict multiple and deadly injuries upon him. The co-actors did conduct themselves in a willful, deliberate and premeditated manner, and committed a malicious first degree murder on Mr. Barajas.
"[The minor] is a follower. He was not an attacker of Mr. Barajas, but he did facilitate the conduct of these adult and more sophisticated gang members in that he posted up so that he would be the lookout on alert when police were to show up, or if anyone were to show up that might frustrate their attempt or conduct as committed on Mr. Barajas, or if they were to be detected by anybody that could report who was responsible for the actions done to Mr. Barajas.
"Therefore, based on the aider and abettor theory the Court can make no other conclusion but set the degree of the murder as a first degree inasmuch as the co-actors clearly did have according to the CALCRIM and discussion in In [r]e C. R. [(2008) 168 Cal.App.4th 1387,] had an opportunity to reflect to show that it was premeditated and deliberate, there was evidence of the planning activity by gang members, there was evidence of motive inasmuch as there had been a prior ongoing relationship with Mr. Barajas which was not a good one. Also, the evidence that the matter of committing the crime in that they actually armed themselves with deadly weapons suggested a preconceived plan against Mr. Barajas."
The court set the maximum time of confinement as "life plus 10 years," including a concurrent determinate term of three years. It committed the minor to a "ranch camp . . . and he would remain in the program until the requirements of the program have been satisfactorily completed. Not knowing which program yet would be recommended by probation, I don't know what the length of stay would be." The minor was placed at "Bar-O-Boys Ranch" on February 8, 2011.
DISCUSSION
The minor contends that there is not substantial evidence to support the juvenile court's finding that he aided and abetted a first degree murder. The minor argues that he "was not told the specifics of the 'jale' by Bandit and could not see the assault or murder. A reasonable person in his position would have known that, in the heat of passion, an assault could turn into a murder, or that the gang members, acting with implied malice, could kill Barajas. However, without knowledge of any preplanned activity by the co-actors, he objectively could not have known that a first degree murder was a possible outcome of the assault." The minor asks this court to reverse the juvenile court's order and remand the matter to that court with directions to reduce the offense to second degree murder.
The Attorney General contends that there is sufficient evidence to support the finding that first degree murder was a natural and probable consequence of the assault on Barajas. "[T]he court properly recognized that [the minor] was involved in a street criminal gang activity, that the gang had motive to kill Barajas and armed themselves accordingly, and that their activity was premeditated and deliberate."
Section 1192 provides that, "[u]pon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree." In a juvenile court matter, the court must find "the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult." (Cal. Rules of Court, rule 5.780(e)(5).) "These determinations may be deferred until the disposition hearing." (Ibid.)
"Murder may be of the first or second degree. While both require malice aforethought, first degree murder requires willful, deliberate premeditation. (Pen. Code, §§ 187, 189.)" (In re C.R., supra, 168 Cal.App.4th at p. 1393.)
In evaluating defendant's contention that there is insufficient evidence to support the juvenile court's finding that the murder in this case was in the first degree, "we apply the substantial evidence rule and view the evidence and all its attendant inferences in the light most favorable to the judgment." (In re C.R., supra, 168 Cal.App.4th at p. 1393.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.] 'The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on " 'isolated bits of evidence.' " [Citation.]' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina).)
"It is important to bear in mind that an aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see also CALCRIM No. 403.) "To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (1996) 14 Cal.4th 248, 269.)
"The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133; Medina, supra, 46 Cal.4th at p. 920.) "Thus, ' "[a] natural and probable consequence is a foreseeable consequence" . . . .' [Citation.] But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the [trier of fact]. [Citations.]" (Medina, supra, at p. 920.)
In examining the record in the light most favorable to the prosecution, we conclude that the juvenile court properly found that the murder of Barajas was a reasonably foreseeable consequence of the premeditated and deliberate gang assault in this case. After Barajas called 911 and reported that members of the Loco Park Watsonville gang had stolen his bicycle, the minor was seen with various members of that gang. The minor admitted that he was told by a gang member that he was to act as a lookout ("post up") while other members of the gang committed a violent act ("jale"). Then eight to 10 gang members armed themselves with sticks, pipes, and at least one knife before going back to Barajas's home site on the levee. There, while the minor acted as a lookout, the other gang members found and chased Barajas and hit him at least four times in the head with the sticks and pipes, and at least three times on his upper torso. They was also stabbed him three times, once in the neck. When the minor saw the police, he reported it to one of the gang members who was attacking Barajas, and all the gang members, including the minor, fled. Barajas died as a result of the multiple hits to his head and the stab wound in his neck.
Fatal blows to the head with the sticks and pipes and/or a fatal stabbing of Barajas with a knife during the gang assault on Barajas was a natural and probable consequence of the assault. (See e.g., Medina, supra, 46 Cal.4th at pp. 922-923; People v. Montano (1979) 96 Cal.App.3d 221, 227.) In addition, the gang assault on Barajas was willful, deliberate and premeditated; the minor knew that the gang assault was premeditated and deliberate; and the minor agreed to and did aid and abet the commission of the premeditated and deliberate gang assault by acting as a lookout. Therefore, under all of the circumstances presented, a reasonable person in the minor's position would have or should have known that the death of Barajas was a reasonably foreseeable consequence of the premeditated and deliberate gang assault he aided and abetted. (Medina, supra, 46 Cal.4th at p. 927.)
Accordingly, viewing the record in the light most favorable to the prosecution, we find that there was sufficient evidence to support the finding by the juvenile court that the murder of Barajas was in the first degree. (In re C.R., supra, 168 Cal.App.4th at p. 1393.)
DISPOSITION
The dispositional order of January 24, 2011, is affirmed.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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PREMO, ACTING P.J.
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ELIA, J.