People v. Arismendez
| Decision Date | 03 November 2015 |
| Docket Number | C072827 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROLANDO ARISMENDEZ et al., Defendants and Appellants. |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case arises out of a drive-by shooting in a Sureño gang neighborhood by members and associates of the rival Norteño gang. A jury convicted defendants Rolando Arismendez, German Yovani Quezada, and Juan Manuel Reyes of conspiracy to commit attempted murder (Pen. Code, § 182, subd. (a)(1)),1 attempted premeditated murder (§§ 187, 664), and criminal street gang activity (§ 186.22, subd. (a)). The jury also foundtrue the allegations that the defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), a principal personally discharged a firearm (§ 12022.53, subd. (e)(1)), and the attempted murder was committed with premeditation (§§ 187, subd. (a), 189, 664). The trial court subsequently granted the prosecution's motion to dismiss the defendants' convictions for conspiracy to commit attempted murder.
Arismendez was additionally convicted of possession of a firearm by a person previously convicted of criminal street gang activity (§ 186.22, subd. (a)), being a felon in possession of a firearm (former § 12021.1, subd. (a)(1); Stats. 2009, ch. 121, § 1), and being a felon in possession of ammunition (former § 12316, subd. (b)(1); Stats. 2009, ch. 628, § 5). The jury found true the allegation Arismendez furnished a firearm to another person for the purpose of aiding and abetting the commission of a felony (§ 12022.4, subd. (a)). The trial court found Arismendez had previously been convicted of two prior felonies for which he had served separate prison terms. (§ 667.5, subd. (b).)
Quezada and Reyes were also convicted of shooting at an inhabited dwelling. (§ 246.) The jury found true the allegations that Quezada and Reyes each personally and intentionally discharged a firearm (§ 12022.5, subd. (a)) and carried a firearm during the commission of a gang-related crime (former § 12021.5, subd. (a); Stats. 2009, ch. 171, § 4).
The trial court sentenced Arismendez to serve an indeterminate term of 7 years to life in prison with a 20-year firearm enhancement in addition to a determinate term of 9 years. Quezada and Reyes both were sentenced to serve an indeterminate term of 15 years to life with a 20 year firearm enhancement.
On appeal, Arismendez contends (1) insufficient evidence supports his conviction of attempted premeditated murder, and (2) the evidence was insufficient to convict him ofbeing a felon in possession of ammunition. Quezada argues (3) the trial court erred in not instructing that the victim's testimony required corroboration because the victim was an accomplice, and (4) the trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter. Reyes contends (5) the trial court gave a flawed instruction on premeditation that allowed the jury to base his conviction on the mental state of another defendant. Each of the defendants joins in the contentions of the others insofar as advantageous to him.
We conclude the evidence showing Arismendez provided guns, ammunition, and transportation for the drive-by shooting with intent to orchestrate a killing was sufficient to convict him of attempted premeditated murder. We also conclude the evidence established he was a felon in possession of the ammunition found in the trunk of his friend's car. We reject Quezada's assertion of instructional error because a victim of a crime cannot be an accomplice to the same crime. We also reject Quezada's claim the trial court should have instructed on attempted voluntary manslaughter. The record does not show provocation by the victim upon which an attempted voluntary manslaughter conviction could have been based. Finally, we conclude the instructions did not allow the jury to base one defendant's conviction of attempted premeditated murder on the mental state of another defendant. Accordingly, we affirm.
In October 2011, Jose Luis Delgado Tarango (Delgado)2 was an active member in the Sureño criminal street gang. That month, Delgado posted his home address on Facebook "[j]ust to mock" members of a rival gang, the Norteños. Like most otherSureño gang members who lived in Woodland, California, Delgado resided in a neighborhood called Yolano Village. Delgado lived on Donnelly Circle and considered himself a protector of his neighborhood.
At 3:00 p.m. on November 15, 2011, Quezada sent a text message to Arismendez stating, "Can u get a whip, I almost got ran up on." At trial, Woodland police detective John Perez explained a "whip" refers to a car or transportation. About two minutes later, Arismendez replied, "Got BMZ car" -- referring to his "baby's mama['s]" car. Yvette Adame, the mother of Arismendez's child, owned a white Chevrolet Malibu with an orange "W" sticker on the rear windshield. At almost the same time, Quezada sent someone else a text message that he needed to find someone with a license because he was "tryna mob around."
Around 5:00 or 6:00 p.m., Delgado received a phone call that some Norteños were driving around his neighborhood. Delgado and another Sureño got into their car and chased another car containing five or six Norteños out of the Sureño territory of Yolano Village. The car was white and had an orange Woodland High School "W" sticker on it. If Delgado would have had a gun, he would have shot at the Norteños. He and the other Sureño ended up chasing them away.
Shortly after 10:00 p.m., Quezada sent a text message to Arismendez stating, "Clean the clip and gun." A few minutes later Arismendez replied, "Done."
Casey Moore was 17 or 18 years old in November 2011. After living in Indiana for a few years, Moore had recently returned to Woodland. He knew Arismendez through his mother and a few of her friends. Moore was interested in becoming a Norteño gang member and asked Arismendez about joining the gang.
During most of the day on November 15, 2011, Moore was hanging out with his friend Tomas Ramirez. Ramirez drove a white Chevrolet Malibu.3 Sometime in the late afternoon, Moore accompanied Ramirez in giving Ramirez's cousin a ride from Davis to Woodland. When they ran low on gasoline, Moore called Arismendez to borrow money. Arismendez agreed to give them gas money but said they would also have to give his cousin a ride.
Moore and Ramirez drove to an apartment complex in Woodland to meet Arismendez. At the apartment complex, Arismendez introduced Moore and Ramirez to the person who lived there, Kalynn Rodriguez. Rodriguez and Arismendez had been friends for about a year. Inside Rodriguez's apartment, Moore watched Arismendez clean two guns and put them into a bag. Arismendez's cousin, Reyes, showed up at the apartment. Arismendez and Reyes talked about going to "fuck up some scraps." Moore understood this to mean they were going to "jump" or "fight" a member of the Sureño gang. Moore thought they were taking Reyes to fight someone. For giving Reyes a ride, Ramirez received $20 for gas.
Ramirez, Moore, and Reyes drove to a gas station and filled gas. Reyes instructed them to pick up an additional passenger. Ramirez and Moore drove to another apartment complex in Woodland and picked up Quezada. They drove around for a while before stopping to let Quezada pick up some marijuana. At Quezada's instruction, they drove to a house where they picked up a male who was never positively identified at trial. The prosecution referred to this fifth passenger as JD Salas, a name we use for ease of reference. Moore took over driving because Ramirez did not know his way aroundWoodland. They drove around for a while. Moore realized what they were doing when he "saw the guns" as they neared Sureño territory at Yolano Village. The guns were the same ones Moore saw Arismendez put into a bag at the apartment.
Moore drove slowly down Donnelly Circle. He saw a gun in Reyes's pocket and observed as Quezada drew a snub-nose revolver. Suddenly, Reyes, Quezada, and Salas started shooting out of the car. Reyes fired from the front passenger seat, Quezada fired from the rear passenger window, and Salas sat on the doorframe and fired over the roof of the car. Ramirez was leaning forward and covering his head. The shooting lasted 10 to 15 seconds.
Delgado was standing in front of his house and talking with his neighbor, Jenny Morales. Suddenly, "[b]ullets [were] flying everywhere." Delgado saw a white car carrying four people, with the two passengers in the rear seats firing at him. It was obvious to Delgado the bullets were coming from the car because it was the only one in the area. He also saw a big spark coming from the car. The car sped off.
Delgado did not have a gun when the shooting started. However, he did have an Airsoft BB gun hidden in a nearby trash can. Delgado kept the BB gun in an outside trash can because he feared the police would see him with it, think it was real, and shoot him. Also, Delgado was on searchable probation and did not want to be caught with the BB gun. Delgado retrieved the BB gun after the shooting was over. Delgado's mother came out of the house and asked if he was all right. She took the BB gun away and threw it into the trash.
Moore panicked when the shooting started. At trial, he could not remember whether he hit the brakes or the gas pedal. Reyes grabbed the steering wheel and asked, "What the fuck are you doing?" No one had control over the car and it crashed through afence. The airbags deployed, everyone got out and started running....
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