Opinion
F080361
03-27-2024
The PEOPLE, Plaintiff and Respondent, v. Fernando ROJAS, Defendant and Appellant.
Sharon Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. (Kern Super. Ct. No. BF171239B)
Sharon Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, Acting P. J.
Defendant Fernando Rojas’s fellow gang member shot and killed an individual with whom defendant had an altercation moments prior. Defendant was convicted of first degree murder with a gang special circumstance finding; and active gang participation.
The Attorney General concedes that, as a result of the passage of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), defendant’s conviction for active gang participation and several enhancements must be reversed. We accept that concession.
We reject defendant’s remaining contentions, including a Batson/Wheeler claim and a challenge to his gang-murder special circumstance.
Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler).
As a result, we reverse the active gang participation conviction and several enhancements, but otherwise affirm.
BACKGROUND
In an amended information filed August 14, 2019, the Kern County District Attorney charged defendant Fernando Rojas with premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 189), active gang participation (count 2; § 186.22, subd. (a)), and possession of a firearm as a felon (count 4; § 29800, subd. (a)(1).) The information further alleged: Defendant committed the murder for the benefit of, at the direction of, or in association with the Varrio Chico Lamont criminal street gang; firearm enhancements to the murder count under sections 12022, subdivision (d) and section 12022.53, subdivisions (d) and (e)(1); an out-on-bail enhancement (§ 12022.1); a prior juvenile adjudication strike (§ 667, subds. (c)–(j), § 1170.12, subds. (a)–(e)); and three prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
Codefendant Victor Nunez was also charged with counts 1 and 2, as well as possession of a firearm as a misdemeanant (count 3; § 29805.)
The court granted defendant’s motion for acquittal on count 4 (§ 1118.1). A jury convicted defendant on counts 1 and 2. The jury also found true the gang enhancement (§ 186.22, subd. (b)(1)), gang-murder special circumstance (§ 190.2, subd. (a)(22)), and firearm enhancements under sections 12022.53, subdivisions (d) & (e)(1) and 12022, subdivision (d) as to count 1.
The court granted a prosecution motion to dismiss the on-bail enhancement and prior conviction enhancements. The court found true the prior strike adjudication allegation.
The court sentenced defendant to life in prison without the possibility of parole on count 1, plus 25 years to life (§ 12022.53, subds. (d) & (e)(1)), plus three years (§ 12022, subd. (d)), plus a stayed (§ 654) term of six years on count 2. The court imposed various fines and fees, including a parole revocation restitution fine of $300. (See § 12022.45.)
FACTS
Surveillance footage from an internet casino showed defendant arriving in a silver BMW at around 1:15 a.m. on February 3, 2018. Defendant entered the casino, whereafter he and Nunez conversed, drank beer, and played a casino game.
At around 2:04 a.m., a man named Brandon Ellington was outside the casino exchanging something with an individual whose car door was open. Ellington had something in his hand. A package of marijuana was later found in his pocket. An unidentified individual hit Ellington in the face.
Around the same time, defendant walked out with an unknown individual. Nunez was standing at the entrance. Defendant extended his left arm while holding what appeared to be a beer bottle. Ellington took off his shirt, squared off against defendant, and extended both of his arms over his head. Defendant threw the beer bottle. Ellington then left the view of the camera.
Defendant and Nunez jogged to their BMW toward the entrance of the casino. Defendant drove the BMW away from the casino with Nunez in the front passenger’s seat. Defendant made a northbound turn onto South Union Avenue at about 2:08 a.m.
Surveillance footage from a nearby store showed a silver BMW pulling up near Ellington. The footage shows an individual exiting the passenger’s side followed by muzzle flashes. Ellington ran toward a nearby market after being struck by a bullet. Eventually, Ellington collapsed. His body was later found by law enforcement at that location. The shooter then reentered the BMW which sped away.
Ellington had suffered a gunshot wound to his chest. The wound was lethal, striking Ellington’s left lung, heart, and then right lung before exiting the body. The wound had "stippling" – which is partial gunpowder burns. However, the wound had no visible soot. Based on "rough generalizations," a pathologist testified that stippling without soot is consistent with the firearm being between six to 18 inches away from the victim when the lethal shot was fired. Ellington also had blunt force injuries.
Five spent nine-millimeter shell casings were found at the scene.
On February 9, 2018, an undercover officer arrested defendant at the same internet casino. The same day, officers located Nunez hiding behind a shipping container in a parking lot. Nunez tossed a black handgun away before surrendering. A criminalist from the regional crime laboratory testified that, in his opinion, it was the gun that fired the spent casings at the scene. The DNA profile on the gun matched Nunez.
Defendant denied involvement to law enforcement. He said he heard about the shooting from other people and from newspapers but was not personally involved. Defendant initially claimed he was not even at the internet casino on the night Ellington was killed. However, officers showed him a still photograph from the surveillance footage, and defendant admitted he was depicted therein. Defendant then admitted he was drunk. Defendant claimed Ellington had a knife, was saying things like, "I’ll kill all you guys," and "white pride." However, defendant consistently denied involvement in the shooting.
Defendant said he had "connections" and that everyone knew he was "from the streets." Defendant said people listen to him because he is a "big guy."
Officers asked defendant if he was involved in gangs in Lamont. Defendant claimed he was not currently active.
Deputy Sheriff Fernandez testified as a gang expert for the prosecution. Fernandez testified about a Kern County gang called Varrio Chico Lamont, including common tattoos among its members, their hand signs, primary activities, and predicate offenses. Varrio Chico Lamont is a subset of Lamont 13.
Defendant and Nunez were not involved in the predicate offenses.
Deputy Fernandez testified that "respect" is one of the primary things a member of the Varrio Chico Lamont gang seeks. If a perceived disrespect to a member of Varrio Chico Lamont went unanswered, the disrespected member would lose standing in the gang. Thus, disrespected members would be required to respond, usually with violence, to "save face."
Gang members also commit violent crimes like murder to enhance their reputation within the gang and the gang’s reputation in the community. This reputation enhancement discourages people from "talk[ing]" to law enforcement, which allows the gang to continue committing crimes. Another officer also testified about prior contacts with defendant suggesting his involvement with the Varrio Chico Lamont gang. Defendant had several tattoos that Deputy Fernandez believed were gang related, including one that read, "VCL," two that read, "Lamont," and a street sign with the street names "Santa Clara" and "Kearney." Fernandez opined that defendant and Nunez were active members of the Varrio Chico Lamont gang on February 3, 2018. Fernandez also testified that a hypothetical crime aligned with the prosecutor’s view of the evidence would be considered to have been committed "in association with" the Varrio Chico Lamont gang.
The area around the intersection of these two streets was a "stronghold" area for the gang.
DISCUSSION
I. Defendant Has Not Established Reversible Batson/Wheeler Error
See footnote *, ante.
II. Under Assembly Bill 333, Defendant’s Conviction for Active Gang Participation, the Gang Enhancement and the Vicarious Firearm Enhancement Must be Reversed
Defendant contends that under Assembly Bill 333, his conviction for active gang participation, the gang enhancement, and the vicarious firearm enhancement must be reversed. Under Assembly Bill 333, "benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational." (§ 186.22, subd. (g).) The Attorney General concedes the issue because a reasonable jury could conclude the "common benefit" of the murder in this case was not more than reputational, and we accept the concession. (See People v. Vasguez (2022) 74 Cal.App.5th 1021, 1032–1033, 290 Cal.Rptr.3d 109.)
The prosecution may retry defendant on the reversed conviction and enhancements. (See People v. Vasquez, supra, 74 Cal. App.5th at p. 1033, 290 Cal.Rptr.3d 109.)
III. Sufficient Evidence Supported Special Circumstance Finding
A. Assembly Bill 333 and Its Impact on Section 190.2, Subdivision ( a )( 22 )
[1] However, the gang-murder special-circumstance finding must be analyzed separately. While Assembly Bill 333’s changes to section 186.22, subdivision (g) affect the gang participation count, the gang enhancement, and the firearm enhancements based on a finding under section 186.22, they do not apply to statutes in other chapters of the Penal Code, such as section 190.2. To the contrary, subdivision (g) expressly limits its definition of "benefit, promote, further, or assist" to the use of those terms in chapter 11 of title 7 of the Penal Code. (§ 186.22, subd. (g) ["As used in this chapter, to benefit, promote, further, or assist means…"].) Section 190.2 is in an entirely different title of the Penal Code, much less chapter. And we are aware of no statute that otherwise incorporates section 186.22, subdivision (g) into section 190.2.
In contrast, changes to subdivision (f) of section 186.22 do impact section 190.2, subdivision (a)(22) because the latter provision defines active participation by express reference to subdivision (f).
B. Gang-Murder Special Circumstance
[2] The gang-murder special circumstance requires a sentence of death or life in prison without the possibility of parole for a defendant whom the jury finds has "intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Because the murder must have been carried out to further the activities of the criminal street gang, the defendant must have specifically intended to further the activities of the criminal street gang. (People v. Arce (2020) 47 Cal.App.5th 700, 714, 261 Cal.Rptr.3d 180 (Arce).)
Section 190.2, subdivision (c) also provides for death or life without parole sentences for defendants who were not "the actual killer" but "who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests or assists, any actor in the commission of" a first degree murder for which another subdivision (a) special circumstance (e.g., gang-related murder under subdivision (a)(22)) was found true. (§ 190.2, subd. (c).)
Section 190.2, subdivision (c) can also apply in cases of first degree murder where a different special circumstance other than subdivision (a)(22) is found true under section 190.4, (§ 190.2, subd. (c).)
[3] Defendant argues there was insufficient evidence that he specifically intended to further the activities of the criminal street gang. On substantial evidence review, we do not ask whether we " ‘believe[ ] that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Hatch (2000) 22 Cal.4th 260, 272, 92 Cal.Rptr.2d 80, 991 P.2d 165.)
[4, 5] Intent is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise. (People v. Buckley (1986) 183 Cal. App.3d 489, 494–495, 228 Cal.Rptr. 128.) Criminal intent "may be deduced from the circumstances of the crime." (People v. Grider (1935) 10 Cal.App.2d 287, 288, 51 P.2d 881; see § 29.2, subd. (a).)
[6] Here, the evidence supported the following inferences concerning the circumstances of the crime. Defendant is a gang member. Gang members commit violent crimes like murder to enhance their reputation within the gang and the gang’s reputation in the community. This reputation enhancement discourages people from "talk[ing]" to law enforcement, which allows the gang to continue committing crimes. Gang members commonly work together, with one acting as a driver and the other directly committing crimes. The gang to which defendant belongs commits homicides as one of its primary activities. Defendant got into an altercation with an individual, who then ran away. A fellow gang member (Nunez) joined defendant, and they both chased the victim down. Defendant’s fellow gang member then shot and killed the victim.
From this evidence, a reasonable jury could infer that fellow gang members Rojas and Nunez jointly engaged in one of their gang’s primary activities in order to enhance their gang’s reputation for retaliatory violence. The fact that Nunez became involved at all – and was ultimately the actual killer – raises an inference that the murder was motivated by the need to uphold or enhance the gang’s reputation for retaliatory violence rather than any personal disagreement between Rojas and Ellington. [7] Defendant observes that his case does not involve some of the evidence present in other cases where gang allegations were upheld. But the fact that a particular collection of evidence was sufficient in one case, does not mean that each constituent piece of evidence is necessary in every case. "When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516, 7 Cal. Rptr.2d 199, 828 P.2d 101.) That is especially true when making a negative argument for reversal by relying on cases that found their evidence sufficient.
[8] In any event, even if it were undisputed that some facts in this case work in defendant’s favor, that observation would not be dispositive on substantial evidence review. " ‘ " ‘ " ‘ " ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ " ’ " ’ " ’ " (People v. Ghobrial (2018) 5 Cal.5th 250, 278, 234 Cal.Rptr.3d 669, 420 P.3d 179.)
Defendant’s remaining contentions, such as reversal being warranted because some of the gang-related circumstances found in other cases are not present here, is rejected for the same reason.
III. Supreme Court Precedent Holds that Assembly Bill 333 Did Not Impermissibly Amend Proposition 21
The Attorney General argues that Assembly Bill 333 unconstitutionally amended Proposition 21 (as approved by voters, Primary Elec. (Mar. 7, 2000)) (Proposition 21). In our original opinion we agreed with this contention because Assembly Bill 333 removed multiple categories of defendants from Proposition 21’s coverage who would otherwise have fallen under its harsher sentences. This amendment, while otherwise perfectly permissible, failed to reach the vote threshold required by section 39 of Proposition 21 (i.e., a two-thirds majority in each house or voter approval). (Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131.)
The Supreme Court subsequently granted review and instead focused on whether Proposition 21 evinced an intent to make a time-specific incorporation of section 186.22, subdivision (f). (See People v. Rojas (2023) 15 Cal.5th 561, 571-575, 316 Cal. Rptr.3d 61, 539 P.3d 468.) After concluding the voters did not so intend, the Supreme Court reversed and remanded this matter back to us, with directions to conduct further proceedings consistent with their opinion.
Based on the Supreme Court’s decision in Rojas, we reject the Attorney General’s contentions.
IV. It Was Not Error to Omit from Jury Instructions a Requirement that Defendant Intended to Further Activities of Criminal Street Gang When Committing the Actus Reus of Sentence Enhancement Under Section 190.2, Subdivision (c)
The court instructed the jury:
"The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang, in violation of Penal Code Section 190.2(a)(22).
"To prove that this special circumstance is true, the People must prove that:
"One, the defendant intentionally killed Brandon Ellington;
"Two, at the time of the killing, the defendant was an active participant in a criminal street gang;
"Three, the defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
"And, four, the murder was carried out to further the activities of the criminal street gang."
The court also instructed the jury:
"If you decide that a defendant is guilty of first-degree murder, but was not the actual killer, then when you consider the special circumstance of committing murder while an active participant in a criminal street gang, you must also decide whether the defendant acted with the intent to kill. In order to prove this special circumstance for a defendant who was not the actual killer, but who is guilty of first-degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill."
The court also instructed the jury:
"If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he or she acted with the intent to kill for the special circumstance of committing murder while an active participant in a criminal street gang to be true. If the People have not met this burden, you must find this special circumstance has not been proved true for that defendant."
[9] Defendant contends the court’s instructions were erroneous because they failed to require the jury find he specifically intended to further the activities of the criminal street gang. The parties claim that Arce, supra, 47 Cal.App.5th 700, 261 Cal.Rptr.3d 180, requires that he harbor such an intent. We disagree.
The discussion of intent in Arce, supra, 47 Cal.App.5th 700, 261 Cal.Rptr.3d 180, stands for the unremarkable proposition that section 190.2, subdivision (a)(22) requires that the defendant who " ‘intentionally killed the victim,’ " did so with the specific intent of furthering the activities of the criminal street gang. (Arce, p. 714, 261 Cal.Rptr.3d 180.) This is made clear by the statutory text, which requires that the defendant intentionally kill the victim and that the murder was carried out to further the activities of the criminal street gang. (§ 190.2, subd. (a)(22).) In order for an act to be carried out "to" have some particular effect, the actor must have intended for the act to produce the effect.
Here, however, defendant was not the actual killer. Thus, his sentence enhancement arises under section 190.2, subdivision (c). And the intent required by that provision is the "intent to kill" – not the intent to further the activities of the criminal street gang.
It is true that for defendant’s sentence to be enhanced under section 190.2, subdivision (c), the circumstances described in subdivision (a)(22) needed to be found true. But that provision requires that the actual killer (i.e., Nunez) intended to further the activities of the criminal street gang. But so long as Nunez intended to kill and to further the activities of the criminal street gang; and defendant intended to kill when he aided, abetted, counseled, commanded, induced, solicited, requested, or assisted Nunez, the intent requirements for enhancing defendant’s sentence under subdivision (c) are satisfied. (See § 190.2, subd. (c).) There is no further statutory requirement that defendant also intend to further the activities of the criminal street gang. The absence of an instruction requiring that defendant have intended to further the activities of the criminal street gang is not error.
It is important to note that section 190.2, subdivision (c) does not cover aiding and abetting alone – it also applies to counseling, commanding, inducing, soliciting, requesting or assisting in first degree murder. Thus, doctrines applicable to aiding and abetting cannot be imported wholesale to the entirety of the conduct encompassed by subdivision (c).
The text of section 190.2, subdivision (c) is relatively clear. If defendant A intentionally killed a victim with the specific intent to further the activities of a criminal street gang, and defendant B "assisted" in the killing with the intent to kill, the statutory intent requirements are met. In that circumstance, subdivision (c) would still apply to defendant B if, for example, he knew defendant A intended to further the activities of a criminal street gang but did not personally harbor such an intent himself. So long as defendant B intended to kill the victim when he assisted in the killing, and defendant A’s killing of the victim otherwise satisfied subdivision (a)(22), then defendant B would be subject to sentence enhancement under subdivision (c). The text of subdivision (c) requires nothing more.
V. Parole Revocation Fine
The court imposed a $300 parole revocation under section 1202.45. The parties agree this fine was improper because defendant was sentenced to life without the possibility of parole on count 1. However, we do not resolve this issue because defendant will be resentenced on remand.
DISPOSITION
Defendant’s conviction for active gang participation (§ 186.22, subd. (a)), the gang enhancement (id., subd. (b)(1) and the vicarious firearm enhancement (§ 12022.53, subds. (d) & (e)(1) are reversed. The matter is remanded for a possible retrial. In either event, defendant shall eventually be resentenced.
In all other respects, the judgment is affirmed.
WE CONCUR:
DETJEN, J.
SNAUFFER, J.