P. v. Lopez 8/26/03 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B161668

Case Date: 11/12/2003

Preview:Filed 8/26/03 P. v. Lopez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. JESUS M. LOPEZ, Defendant and Appellant. B161668 (Los Angeles County Super. Ct. No. BA212534)

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Modified and affirmed. Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Jeffrey B. Kahan, Deputy Attorney General, for Plaintiff and Respondent. _______________

Appellant Jesus M. Lopez was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant committed the murder for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1) and that appellant personally used a firearm causing death within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivisions (b) through (d). The trial court sentenced appellant to 25 years to life in state prison for the murder plus 25 years to life for the firearm use plus 10 years for the gang enhancement. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's verdict on premeditation, or the finding that the Moonlight Katz are a street gang, and further contending that the trial court erred in excluding evidence of third-party culpability and in failing to instruct the jury with CALJIC No. 2.01. Appellant also contends that the trial court erred in imposing the gang and firearm enhancements and in calculating his presentence custody credits. We correct appellant's presentence custody credits, as set forth in our disposition, and affirm the judgment of conviction. Facts On April 25, 2000, before sunset, Tenina Calhoun walked from her home to a payphone outside a Pizza Hut at the intersection of Florence and Figueroa. Eric Pachecho and two other men, all dressed in gang attire, approached Calhoun and began talking to her. One man went inside the Pizza Hut, while Pacheco and the other man remained outside talking with Calhoun. Appellant, who lived on the same block as Calhoun, interrupted the conversation by walking between Pacheco and Calhoun. Calhoun knew appellant as "Grumpy" and believed him to be a member of the Moonlight Katz gang. Appellant asked Pacheco where he was from. Pacheco replied, "Florencia." Florencia is the name of a large street
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All further statutory references are to the Penal Code unless otherwise specified. 2

gang. Appellant replied, "Fuck Florencia." Appellant pulled out a handgun, extended his arm and pointed the gun at Pacheco. Appellant fired the gun once or twice as Pacheco began to move toward him. Pacheco fell to the ground. Appellant walked toward Pacheco and fired one or two more shots into his body. Calhoun fled. The manager of the Pizza Hut, Markeisha Haynes, saw the shooting and called 911. Los Angeles Police, including K-9 handlers and their dogs, came to the scene. One dog tracked a "fear" scent to an opening in the crawlspace of a nearby house on Estrella Avenue. There, officers found the murder weapon. The officers received consent to search the house itself, but evidence of that search was not admitted at trial. About two weeks after the shooting, Haynes viewed a photographic line-up and told police that "the picture of [appellant] looks similar to the facial features. The facial features are the same, but I'm not sure." About eight or nine months later, police contacted Calhoun, who had avoided the police investigation out of fear for her family's safety. She eventually told Los Angeles Police Detective Blair McCormack what had happened at the Pizza Hut on April 25. Calhoun identified appellant's photograph as being that of the shooter. On January 25, 2001, Detective McCormack and other officers searched appellant's home. In one bedroom, the detective found a shoebox with the word "Grumpy" and the letters "M.L.K" on it. "M.L.K" was an apparent reference to the Moonlight Katz. The detective also found an address book with the word "Grumpy" on it. Another officer found a document with the number "187" next to an arrow pointing to "F-13 bitch."
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An autopsy revealed that Pacheco died from multiple gunshot wounds, including one to the body and one to the head. The muzzle of the gun was in contact with the head when the shot to the head was fired. The bullet fired into Pacheco's torso entered through the left side of the back.

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Los Angeles Police Officer Gerald Ballestros, a member of the gang unit in the Newton Division, testified that the shoebox and the address book displayed gang writing. Officer Ballestros understood the F-13 as a reference to Florencia 13. Pacheco had been a member of that gang. Officer Ballestros explained that the question, "Where are you from?" was an inquiry into gang affiliation and a challenge. Officer Ballestros knew of the Moonlight Katz, who claimed territory in the Newton Division. The gang had about 25 members. Among the Moonlight Katz's rivals were the Florencia 13 gang. According to Officer Ballestros, the Moonlight Katz committed robberies, narcotics sales and murders. In February, 2000, Officer Ballestros had arrested two admitted members of the Moonlight Katz for a robbery near Main and Gage. The two men were subsequently convicted of that offense. In Officer Ballestros's opinion, appellant was a member of the Moonlight Katz and shot a rival to improve his standing in the gang. Discussion 1. Premeditation and deliberation Appellant contends that there is insufficient evidence to support the jury's verdict that the murder was premeditated and deliberate. We see more than sufficient evidence to support the verdict. In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, 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.' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) Circumstantial evidence may be sufficient evidence to support a verdict, and the standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Bean (1988) 46 Cal.3d 919, 932.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two 4

interpretations, one of which suggests guilt and the other innocence [citations], 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 opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" (Id. at pp. 932933.) In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court explained that: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing -- what may be characterized as planning activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a 'pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed [Citation.]; . . . (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27.) As our Supreme Court later made clear: "'The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] The Anderson guidelines were formulated as a synthesis of prior case law, and are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case." (People v. Hawkins (1995) 10 Cal.4th 920, 957, disapproved on other grounds by People v. Lasko (2000) 23 Cal.4th 101.)

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"The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . .' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Here, there is evidence of each of the Anderson factors. Appellant sought out Pacheco while the latter was talking with a young woman outside a restaurant. Pacheco was dressed in gang attire. Appellant immediately asked Pachecho for his gang affiliation, a challenge certain to result in some form of violence. It is reasonable to infer that since appellant sought a confrontation while armed, he intended to use the gun in the confrontation. This evidence supports an inference of planning, the first Anderson factor. Although appellant does not appear to have known Pacheco, the two men's memberships in rival gangs and the presence of Pacheco in appellant's gang's territory, provides a motive for appellant to shoot Pacheco, the second Anderson factor. Appellant's manner of killing was so particular and exacting that it created an inference that he had a preconceived plan to kill Pacheco, the third Anderson factor. As soon as the victim confirmed that he was a member of a rival gang, Florencia, appellant stated "Fuck Florencia," pulled out his handgun, straightened his arm and pointed the gun at the victim, and fired once or twice from a distance of about two feet. The victim fell to the ground and appellant shot him in the head at point blank range. To the extent that appellant suggests that the fact that the victim took a few steps toward appellant after appellant pointed the gun at him somehow renders the killing less particular and exacting, we cannot agree. Appellant's arm was fully extended at that point, and his intent to shoot at close range clear. The victim's defensive reaction does not alter that.

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2. Gang allegation Appellant contends that the evidence is not sufficient to show that the Moonlight Katz was a criminal street gang within the meaning of section 186.22. Specifically, appellant contends that Officer Ballestros had only a "sparse basis" for his "unadorned opinion" that the one of the Moonlight Katz's primary activities included criminal offenses specified in section 186.22. We cannot agree. Officer Ballestros testified that he had worked in the Newton Division for twelve and a half years, nine and a half of which were in the gang unit, and that the Moonlight Katz gang claimed territory in that Division. He had talked with Moonlight Katz members, arrested Moonlight Katz members, reviewed field identification cards for Moonlight Katz members and spoken with other police officers about Moonlight Katz activities. Officer Ballestros had personally arrested two admitted Moonlight Katz gang members for robbery and the two were subsequently convicted of that crime. These activities formed the basis for the officer's opinion that the Moonlight Katz's primary activities included robbery, narcotics sales, shootings and murder.
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We cannot agree with appellant that this evidence is insufficient under the "norm" set by People v. Gardeley (1996) 14 Cal.4th 605. In Gardeley, the gang expert relied on "investigations of hundreds of gang-related offenses, conversations with defendants and other Family Crip members, as well as information from fellow officers and various law enforcement agencies" in forming his opinion that the Family Crip gang's primary purpose was to sell narcotics. (People v. Gardeley, supra, 14 Cal.4th at p. 612.) Apart from the number of investigations conducted, we see no differences between the evidence relied on by Officer Ballestros and the evidence relied on by the expert in Gardeley. Since the Moonlight Katz gang consisted of only about 25 members, we see no

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An expert may properly comment on the ultimate fact of whether the Moonlight Katz met the statutory definition of a criminal street gang. (Evid. Code

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