Rodriguez explained that the Norteno gang has numerous subsets, and that Dominguez in the past admitted that he belonged to the East Side Stockton Nortenos. Dominguez has “ES” tattooed on his left hand to indicate his affiliation with the East Side Stockton Norteno gang subset. Lara further asserts the trial court prejudicially erred by failing to instruct the jury on attempted murder as a lesser included offense to murder. This argument is based on the notion that because the shooting in the carport area was not immediately fatal, that shooting “was really only an attempted murder” regardless of the fact additional shots, likely from the same gun, completed the job next door. Here, even accepting Lara’s premise there were two separate crime scenes, i.e., the carport area where the initial assault with a firearm occurred and the sidewalk next door where the fatal shots were fired, this does not mean there were two murders.
(See § 245, subd. ; People v. Martinez 125 Cal.App.4th 1035, 1043.) While the instruction delivered to Lara’s jury suggested both were required, this increased the prosecution’s burden with respect to proving Lara aided and abetted such an assault, inuring to Lara’s benefit rather than his detriment. With respect to the first such offense, Detective Mercado testified a member of the Triple Six subset was convicted of possession of a controlled substance for sale and possession of a firearm by a gang participant. However, the documents he relied upon while testifying established that, pursuant to a negotiated plea agreement, this Triple Six gang member was actually convicted of two counts of possession of a controlled substance for sale and charged with, although not convicted of, possession of a firearm by a gang participant. He was also found to have been armed with a firearm during the commission of one of the narcotics offenses.
Because defendants concede they were appropriately convicted of committing a burglary on the night of October 30, 2010, we dispense with a detailed recitation of the evidence establishing their commission of this crime. The following summary will suffice to place the murder in context. Garcia-Jacinto is also charged with murdering 22-year-old Erick Ahilon Mendoza on Feb. 19 in Stockton, a crime that authorities say was motivated by the two gangs’ rivalry.
Were a gang member to shoot a person who displayed the “What’s up?” gesture, it would increase both the shooter’s status within the gang and the gang’s status among other gangs. Detective Ridenour testified that a display of elbows and palms facing up — a “What’s up?” gesture — may be considered to be a challenge to fight rival gang members. Rival gang members frequently display plastic knife self-defense this gesture when encountering each other. A gang member might well see the gesture as a challenge to fight even if displayed by someone who is not a known member of a rival gang. Detective Ridenour further explained that the term “banging on somebody” means to challenge someone to fight. Around that time, Aaron Rueda and his wife were driving south on Grant Street.
These are separate theories of liability for a single crime, Lucero’s murder. The jury “need not have unanimously agreed on the precise factual details of how killing under one or the other theor occurred in order to convict defendant of murder.” (People v. Pride 3 Cal.4th 195, 250.) We therefore reject Lara’s assertion a unanimity instruction was required. Our conclusion in part I of this opinion that Lara’s first degree murder conviction must be reduced to second degree murder makes it unnecessary to address his first argument. Even assuming the jury misunderstood CALCRIM No. 403 to allow conviction of first degree murder under the natural and probable consequences doctrine, we are modifying the judgment to reflect conviction of second degree murder.
With respect to Flores and Espinoza, we reverse their second degree murder and gang participation convictions, as well as their gang enhancements, otherwise affirm, and also remand their matters for resentencing. Moreover, a reasonably foreseeable consequence of two rival gangs disturbing the peace, in confronting each other is a weapons discharge, as did occur. Consequently, as a principal in disturbing the peace, the attempted murder conviction was proper.
Having so concluded, we must further determine whether the jury could have reasonably found the murder that followed was a natural and probable consequence of the assault with a firearm. The evidence was more than sufficient to support such a finding. With respect to some of the physical evidence, Lara admitted he was wearing gray sweatpants when Lucero was murdered.
Each defendant was convicted of murder , residential burglary, and gang participation. Flores was also convicted of the remaining counts charged against him; Espinoza was not convicted of the remaining counts charged against him. With respect to the counts of conviction, all enhancement allegations were found to be true. Lara was sentenced to serve an indeterminate prison term of 25 years to life for the murder plus a consecutive determinate term of 12 years. Flores was sentenced to serve an indeterminate prison term of 15 years to life for the murder plus a consecutive determinate term of 12 years.
One pedestrian was wearing dark clothing, and the other wore khaki pants and was pushing a bicycle. This case involves a fatal drive-by shooting by a gang member who took offense when an unarmed pedestrian raised his elbows to shoulder level with arms bent at a 90 degree angle and palms up in a display that can mean “What’s up?” or “Where are you from?” Gang members often see this sign and its implied questions as provocative. We invite you to use our commenting platform to engage in insightful conversations about issues in our community. We reserve the right at all times to remove any information or materials that are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent or otherwise objectionable to us, and to disclose any information necessary to satisfy the law, regulation, or government request. We might permanently block any user who abuses these conditions.
Nevertheless, when read together, we do not believe the jury would have been misled in a way that prejudiced Lara. CALCRIM No. 403’s singular/plural disagreement indicated to the jury there was more than one asserted target offense, which was confirmed immediately thereafter in CALCRIM No. 875. With respect to the latter instruction, the Attorney General acknowledges the manner in which this instruction was delivered might have misled the jury into believing “that force likely to produce great bodily injury must have been committed with a deadly weapon, including a firearm,” but argues this “inured to [Lara’s] benefit.” We agree. An assault by means of force likely to produce great bodily injury does not require use of a deadly weapon.