Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. SWF006299 Judith C. Clark, Judge.
Conrad Peterman, under appointment by the Court of Appeal, for Defendant and Appellant, Jose Alfonso Urrutia.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Jeffrey Koch and Gary Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
I. INTRODUCTION
This case originally came to us in an appeal from a judgment after the joint trial of Enrique Ortega and Jose Urrutia, albeit a joint trial in which both Ortega and Urrutia each had their own juries. (See People v. Urrutia (June 25, 2010, G041975) [nonpub. opn.] [2010 WL 2557225].) Both defendants had been convicted of crimes done on behalf of a Lake Elsinore gang known as the Elsinore Young Classics, or “EYC.” Ortega had been convicted of, among other things, the first degree murder of Valentin Romero at Harb’s Market, the attempted murder of Ryan Concepcion on Spring Street, and the attempted murders of Angel and Javier Salas in front of their home. (It should be noted here that the Harb’s Market and Spring Street events occurred after the attempted shootings of the Salases -- that point will be important later.)
Urrutia had been the getaway driver in the shootings at Angel and Javier Salas. Urrutia was convicted of aiding and abetting the attempted voluntary manslaughter of the Salases. This court denied Ortega’s petition for rehearing, but granted Urrutia’s petition for rehearing so as to give further consideration to the question of whether the evidence supported the finding that Urrutia intended to aid and abet the shootings at the Salases. It should be remembered here -- as Urrutia’s counsel takes pains to remind us several times -- that the Riverside District Attorney’s office did not ask for an instruction to the effect that the jury could convict Urrutia based on the natural and probable consequences doctrine. Under that doctrine, if the shots at the Salases were reasonably foreseeable from Urrutia’s driving a car in aid of a gang, he aided and abetted those shots, end of inquiry. (Cf. People v. Prettyman (1996) 14 Cal.4th 248, 261.) Obviously, a member of a gang who drives armed compatriots to a specific location should be able to foresee that shots may be fired by them at bystanders. (Particularly, as we shall soon see, to a location where the gang had been making its presence known.) The case would be simple and there would have been no need for a rehearing if the instruction had been given, but since it wasn’t, that line of affirmance is not available.
The jury convicted Urrutia of attempted murder of Angel Salas and the attempted manslaughter of Javier, but the trial court reduced the charge to attempted manslaughter as regards Angel. In our now withdrawn opinion, we erroneously transposed Angel and Javier at one point, saying the trial judge’s theory was that “the jury had been inconsistent in convicting Urrutia of attempted murder of the father but only attempted manslaughter of the son.” [2010 WL 2557225 at p. 14.] (Of course, Angel was the son; Javier was the father.) That mix-up was in the context of the District Attorney’s own appeal asserting that the trial court’s downward reduction was error. However, the District Attorney did not file a petition for rehearing, so that matter of the trial court’s reduction of the sentence is now final in any event.
On rehearing we have been aided by excellent briefs from both sides, each having waived oral argument on rehearing. On rehearing, we again conclude that substantial evidence supports the jury’s conviction that Urrutia intended to aid and abet the shootings at the Salases, and now issue this opinion. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 12:72, p. 12-14 [“The normal procedure is for the court to issue an opinion without further argument....”].) Substantial evidence shows that, at the time the shots were fired, Urrutia, the driver, was deliberately driving slowly so as to facilitate his passengers’ attempts to use the car, in those moments, as a slow moving mobile gun platform.
II. THE EVIDENCE
The basic story of the shootings at the Salases is clear: On March 27, 2003, a Honda Civic, driven by Urrutia and occupied by members of the Elsinore Young Classics (or “EYC”) gang, pulled up in front of the Salases’ house. The Civic was accompanied by another car, a blue and gray Thunderbird. Angel Salas, the son of Javier Salas, went out to the car and there was some sort of argument between Angel and the occupant of the car sitting on the front passenger’s seat. At some point during or after the argument, someone in the back seat appeared to be bringing up a shotgun and was about to shoot it when Javier threw a hammer he was holding at the back window of the car and grabbed his son Angel to get him down on the ground. The Civic pulled away with shots being fired from it. There is no doubt that Urrutia was a member of the Elsinore Young Classics at the time.
There were a number of witnesses to these events:
(1) Angel Salas, who was in the Salas house when the Civic initially pulled up.
(2) Javier Salas, who was working on a van parked in the driveway at the time when the two cars arrived.
(3) Carlos Fernandez, a friend of the Salas family, who was himself working on another car at the time.
(4) David Cuevas, Angel’s friend and the witness who would positively identify Urrutia as the driver of the Civic.
We now recount aspects of their testimony that the jury could use to support its finding that Urrutia intended to aid and abet the shootings.
The main witness was the father, Javier. He testified that a Honda Civic pulled up in front of his house, and there were four people inside. There was a second car with the Civic, a blue and gray Thunderbird. Javier was close to the Civic -- about two feet away. A person in the front passenger seat of the Civic said to Carlos, who was also working in front of the house, “Where’s my amp?” Javier’s son Angel came out onto the sidewalk. At a certain point, Javier saw “the guy the back on the driver’s side [sic] pulling a gun -- like a shotgun behind -- behind the seat and the door and it was kind of open. And then he started opening -- the car started rolling a little bit, like slow, and he [referring to the person behind the driver’s seat] start [sic] opening the door with one of his feet.”
In that split second -- with the Civic rolling south and Javier seeing the passenger in the back seat driver’s side appearing to pull out a shotgun and beginning to open the door with his feet -- Javier thought, “oh, he is gonna shot [sic] my son.” Virtually in the same moment, Javier threw a hammer that he had in his hand and tried to “grab” his son to push him down to the ground. At that point the Civic took off “pretty fast” with a person on the passenger’s side -- not the shotgunner in the back seat -- firing shots.
For his part, Angel Salas, Javier’s son, testified that he came out of the Salas house, saw the same Civic with four people in it, and recognized Danny Vargas on the front passenger’s side. According to Angel, Vargas would eventually sit on the car window sill and start shooting, but not until he first yelled “EYC.”
Carlos Fernandez, the family friend also working in the front of the house (installing a stereo in another Honda), testified that someone in the driver’s seat of the Thunderbird yelled out “Big bad EYC.” Moreover, the Elsinore Young Classics gang was well known to the Salas household and the immediate neighborhood: Everybody in the area, according to Fernandez, “talks about them [the EYC] all the time.” Fernandez also mentioned that when Angel initially came out of the house, Angel soon became engaged in an argument with Vargas. The shootings would happen after that argument.
Finally, David Cuevas, Angel’s friend, recognized Urrutia from high school and positively identified Urrutia as the driver of the Civic.
III. DISCUSSION
A. Aiding and Abetting
The reason we granted the petition for rehearing was to reconsider the sufficiency of the evidence to support Urrutia’s aiding and abetting culpability. Aiding and abetting culpability requires that the defendant acted with both knowledge of the criminal purpose of the perpetrators of the crime plus an intent (or purpose) to encourage or facilitate the perpetrators’ commission of their crime. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330-331 (Mitchell).) The requirements of both knowledge and intent to facilitate can, of course, be shown by inferences drawn from the evidence (ibid.), and those inferences can be derived from three factors of (1) presence at the scene of the crime; (2) companionship with the perpetrators; and (3) conduct before and after the offense. (Ibid.) A comparison of the actual facts in the Mitchell case shows that the jury in the case at bar could readily find the required elements.
Mitchell involved a sophisticated mugging on an escalator at a race track. The victim was seen counting about $3,000 in winnings just before he got on the escalator going down. Five people were acting in concert: A woman and four men. The woman cut in front of the victim just as he got on the down escalator. Her compatriots then got on right after the victim and stood two-by-two in two ranks on the escalator stairs immediately behind the victim. (The defendant was in the second tier behind the victim.) At the base of the escalator, the woman dropped her purse, the contents fell out and she blocked the exit yelling and screaming. The two men directly behind the victim pulled his arms back and one compatriot put his hand into the victim’s left trouser pocket and pulled out the $3,000 while the victim’s ring was being pulled off his finger. But just as the woman got out of the way to let the four men exit, the victim grabbed one of them and accused him of stealing his money, and proceeded to wrestle him. Defendant and his other compatriots fled. The fourth freed himself from the victim and joined the other three. But there was still the woman. The victim accused her of being part of the group and demanded his money from her, a security guard took both of them to a police substation. Fifteen minutes later the victim saw the defendant at the defendant’s car in the parking lot (he had just begun to start the car when motorcycle police arrived), and identified the defendant as one of the four men in the group. (Mitchell, supra, 183 Cal.App.3d at p. 328.)
The Mitchell court upheld the defendant’s conviction for aiding and abetting the robbery, holding the evidence was sufficient to show knowledge of criminal purpose and intent to facilitate. The factors of presence at the scene (the defendant was in the company of the man who actually grabbed the money), companionship (the defendant was seen talking with the other men just before the robbery and entered the escalator with them) and conduct before and after (the defendant “positioned himself” on the escalator so as “protect” the others during the robbery and then fled with them to the parking lot where they all got in his car and he was just starting the engine) readily established the inference he had knowledge of the criminal purpose and intent to facilitate it. (Mitchell, supra, 183 Cal.App.3d at p. 330.)
In the case before us, we have the same three factors: Urrutia was present at the scene (indeed very present, as driver of the car from which the shots were fired), companionship (Urrutia was clearly affiliated with the EYC gang), and conduct before and after (he drove gang members to where they shot at bystanders, and he drove them away as shots were fired from the car).
That is certainly enough: The evidence that Urrutia intended to facilitate a gang shooting is at least as strong as the evidence that the defendant in Mitchell intended to facilitate a robbery on an escalator. After all, there is nothing in Mitchell to indicate that the defendant in Mitchell did anything but stand on a second tier behind two other compatriots. Here -- all the more so in comparison with Mitchell -- Urrutia was the person who actually got the shooters to the location, and at the critical moment, drove slowly so as to facilitate the (literally) “drive by” shootings.
Even so, let us try to make the point about knowledge and intent to facilitate a little more explicitly than we did in our first opinion.
If one parses events in slow motion, these events stick out: Two cars, both affiliated with the EYC gang (Fernandez heard someone from the Thunderbird yell “Big Bad EYC”) approached the Salases’ house. The EYC gang had been intimidating the inhabitants of the area, certainly including the Salas family. (Fernandez testified that everybody talked about the gang “all the time”). The Civic pulled up in front of the Salases’ house, and there was an argument between Angel and the front passenger Vargas. Toward the end of the argument -- and the timing is important here (and any conflicts, given the jury’s verdict, go to the prosecution) -- the Civic began slowly rolling. As it was rolling -- that is, Urrutia was driving deliberately slowly -- a back seat passenger took out a shotgun and appeared to be about to open a door so as to let loose a blast at the people in front of the house. Meanwhile, the front passenger, Vargas, managed to climb onto the car window sill -- no mean feat if the car were moving fast, hence the need for Urrutia to drive slowly during that maneuver. Father Javier, fearing his son was about to be killed, took the hammer then in his hand (he was, after all, working on his own van at the time) and threw it at the Civic, shattering its back window, making a noise that could readily duplicate a gun blast. Vargas, sitting on the sill, opened fire from his perched position, and Urrutia, as any good getaway driver would do, sped out of harm’s way, unable to ascertain, given the shattering of the back window, that the locals didn’t have firearms to protect themselves.
The Attorney General’s brief on rehearing aptly describes the scene in these terms: “From this evidence, the jury could infer that Urrutia was watching all this happen. He was edging the car forward, itching, waiting, ready to go when it was time to flee, but holding the position for the shooters as they attacked.”
The point is: Urrutia had to deliberately cooperate with any plan for either Vargas or the back seat shotgunner to get in position to take their shots: Had he simply sped away before the back seat shotgunner made the motions that indicated he was about to fire the back seat shotgunner would not have had any chance of getting into position to take his shot, and Vargas could not have climbed out onto the car window sill to be able to take his shots. It was thus a reasonable inference that Urrutia did indeed know the “full extent” of his fellow gang members’ purposes. (See People v. Beeman (1984) 35 Cal.3d 547, 560.) So the jury’s verdict was indeed supported by substantial evidence.
B. Other Issues
The petition for rehearing did not challenge our resolution of the other three other issues raised by Urrutia and considered in the original opinion: (1) Whether certain incidents where Urrutia was present with Ortega could serve as predicate offenses under section 186.22, subdivision (b); (2) whether there was ineffective assistance of counsel; and (3) whether the imposition of an upper term was constitutional. The following represents pretty much the same treatment of these issues as in our original opinion, but with some modifications:
All statutory references in this opinion are to the Penal Code.
1. Predicate Offenses
This issue arose because the trial court acquitted Urrutia of the Harb’s Market murder. He was not charged with the Spring Street shooting, which occurred between the shooting at the Salases and the incident at Harb’s Market, but the court admitted evidence of the Spring Street incident to prove the elements of the criminal street gang enhancement. After granting Urrutia’s motion for acquittal, the prosecutor conceded he could no longer use the Spring Street and Harb’s Market shootings to prove a pattern of criminal gang activity, although the prosecutor asserted the evidence was relevant to establish Urrutia’s liability as an aider and abettor.
Urrutia correctly points out that crimes committed after the Salas shootings could not serve as section 186.22 “predicate” offenses with respect to him. The argument reifies itself in the context of this case as an assertion that the prosecution’s burden of proof against him was unconstitutionally reduced by the trial court’s failure to specifically advise the jury to disregard the Spring Street and Harb’s Market shootings for purposes of proving the “primary activities” and “pattern of criminal activity” elements of section 186.22.
The standard instructions for the gang enhancement, however (CALCRIM Nos. 1401 and 1403) limit the jury’s consideration of gang evidence to proof of intent, purpose, and knowledge. To the extent Urrutia now believes the court should have also given a clarifying instruction, he was required to request such an instruction. (People v. Maury (2003) 30 Cal.4th 342, 426.)
Urrutia also faults the prosecutor for referencing all three crimes during closing argument. However, the trial court also instructed the jury that the arguments of counsel are not evidence (CALCRIM No. 200). We must presume jurors understand and apply the instructions given them. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Callahan (1999) 74 Cal.App.4th 356, 372.)
Most fundamental, though, is the obvious: Urrutia was the driver in a gang drive-by shooting and the details of that shooting are so replete with “predicate offenses” that any arguable error regarding the Harb’s Market and Spring Street incidents which -- to be sure, did indeed occur after the shootings at the Salases -- pales into insignificance.
As explained in People v. Duran (2002) 97 Cal.App.4th 1448, 1457, predicate offenses necessary to establish that, yes, a gang is really a “criminal gang, ” can be supplied by the circumstances of the charged offense, if committed by two or more persons, period, even if not on a “separate occasion.” (Id. at p. 1457 [“The predicate offenses must have been committed on separate occasions, or by two or more persons.... The charged crime may serve as a predicate offense... as can ‘evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.’”].)
While Urrutia’s appellate counsel has presented nothing less than a heroic effort to try to wring a due process violation over the exposure of Urrutia’s jury to the Harb’s Market and Spring Street incidents (arguing that such exposure reduced the prosecution’s burden of proving that EYC is indeed a gang), nothing can obscure the basic facts of the charged crime. Multiple gang members in two cars pulled up to the Salases’ home, and two other occupants of the Civic (the back seat shotgunner and the front seat passenger) attempted to shoot at the Salas with the aid of Urrutia’s slow driving. The Harb’s Market and Spring Street incidents were pure surplusage in a clear case of a gang drive-by in which Urrutia committed the “charged offense” and there was ample proof of any number of other predicate offenses “committed on the same occasion by a fellow gang member.” We seldom see such an extreme case where any error was so ineluctably harmless.
2. Ineffective Assistance of Counsel
Urrutia argues his attorney’s failure to seek a mistrial after the court granted his motion for an acquittal on count 1, to move to exclude evidence of all but the incident involving the shootings at the Salases, and failure to assert prosecutorial misconduct after the prosecutor mentioned the other charged offense during closing argument amounts to ineffective assistance of counsel. We disagree.
This is not one of those “rare” cases where “the merits of a mistrial motion: are “so clear that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854-855.)
First, as discussed above, a jury instruction was given limiting the jury’s use of the Harb’s Market and Spring Street crimes. This minimized the prejudicial effect of the evidence to show Urrutia’s “intent, purpose and knowledge” and “not for any other purpose.”
Second, the state of the evidence made it unlikely the court would have granted a mistrial. As we have just shown, the Harb’s Market and Spring Street incidents were but the flutters of a few leaves in the storm represented by the actual circumstances of the shootings at the Salases. By the same token, Urrutia’s counsel would have readily recognized that any such motion would have been futile, and destined only to draw (yet more) attention to Urrutia’s gang membership.
With respect to the idea that Urrutia’s trial counsel should have objected on the grounds of prosecutorial misconduct, we find a tactical reason for not doing so: Counsel could have decided that objecting would focus the jury’s attention on the other shootings in ways that would not be helpful to the defense. (See People v. Harris (2008) 43 Cal.4th 1269, 1290) Again, why remind the jury of your client’s gang affiliation?
And of course, to the degree we haven’t made it totally clear already, any errors on defense counsel’s part were harmless given the evidence solely related to the shootings in front of the Salases’ home.
3. Imposition of the Upper Term for Count 5
In his supplemental opening brief, Urrutia’s contends the court’s imposition of the upper term for count 5 violated his right to a jury determination of all critical facts supporting a greater potential sentence. (See Cunningham v. California (2007) 549 U.S. 270 (Cunningham), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Here, the trial court imposed the upper term based on “the fact that two vehicles came to the particular location, the number of participants who were present, at least five individuals having arrived” and “the volley of shots and the number of weapons that did fire that under [California Rules of Court, rule] 4.421(a)(1) this crime did involve great violence, a risk of great bodily harm, and other acts displaying the highest degree of cruelty, viciousness or callousness.” The court also noted the evidence presented showed Urrutia was “becoming fully enmeshed in [the] gang lifestyle.” Of these facts, the jury necessarily found true the fact that the crime involved great violence and a great risk of bodily harm.
Alternatively, Urrutia claims the California Supreme Court interpreted Apprendi, Blakely, and Cunningham improperly in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
The answer to this contention is: Intermediate appellate courts don’t go around overruling Supreme Court decisions. Any relief is for the high court to give.
IV. DISPOSITION
As in the original opinion, the judgment is affirmed.
WE CONCUR: BEDSWORTH, J.MOORE, J.