People v. Figueroa
| Decision Date | 28 March 2018 |
| Docket Number | F072687 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAVID FIGUEROA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant David Figueroa shot and wounded Ivan Lopez multiple times after Figueroa's associate, Oscar Garcia, argued and fought with Lopez. Figueroa and Garcia were charged with multiple felonies with gang enhancements. The People's theory was that Figueroa and Garcia were members of the Norteño gang, and they committed the offenses for the benefit of that gang. The defense theory was that Garcia and Lopez argued about whether Lopez talked to Garcia's girlfriend, and the incident was not gang-related.
After a joint jury trial, Figueroa was convicted of count I, attempted murder of Lopez (Pen. Code, §§ 664, 187, subd. (a));1 count II, active participation in a criminal street gang (§ 186.22, subd. (a)); and count III, carrying a loaded firearm in a public place while an active participant in a criminal street gang (§ 25850, subd. (c)(3)), with firearm (§ 12022.53, subd. (d); § 12022.5, subd. (a)) and great bodily injury enhancements (§ 12022.7). Figueroa was found not guilty of count IV, conspiracy with Garcia to commit assault with a firearm (§§ 182, 245, subd. (a)(2)). The jury found the gang enhancements were not true as to Figueroa (§ 186.22, subd. (b)(1)).
Garcia was tried for attempted murder, active participation in a criminal street gang, and conspiracy, with gang enhancements; the same jury found him not guilty of all charges.
As a result of Garcia's acquittal, the trial court subsequently dismissed Figueroa's conviction in count II for active participation in a criminal street gang because Garcia's acquittal meant that two or more gang members did not commit any underlying offenses.
Figueroa was sentenced to the upper term of nine years for attempted murder, plus 25 years to life for the firearm enhancement.
On appeal, the parties agree that the court erroneously sentenced Figueroa for count II, active participation in a criminal street gang, even though the court dismissed that conviction. The parties also agree that Figueroa's conviction in count III for the felony of carrying a loaded firearm in a public place while an active participant in acriminal street gang must be modified since the court dismissed count II, but disagree whether it should be modified to a misdemeanor.
Figueroa's primary issue is that since the jury found the gang enhancements were not true, the admission of the gang evidence had a "prejudicial spillover" effect on his conviction for attempted murder. Figueroa concedes that the witnesses identified him as the gunman who shot and wounded Lopez, but argues that the "prejudicial spillover" effect of the gang evidence prevented the jury from convicting him of the lesser offense of attempted voluntary manslaughter.
We strike the conviction and sentence imposed for count II, modify count III to a misdemeanor and remand for sentencing on that count.
We also remand the matter for the court to consider whether to exercise its discretion for imposition of the firearm enhancement found true in this case, under the newly-enacted provisions of section 12022.53, subdivision (h), as amended by Senate Bill 620.
In all other respects, we affirm.
In the early morning hours of November 22, 2014, Ivan Lopez drove to Aldo's nightclub in Bakersfield. Lopez had consumed six beers about three hours earlier.
Lopez pulled into Aldo's parking lot and recognized a vehicle that belonged to Jerrina and Nancy Rodriguez,2 his sisters-in-law. Lopez called them and learned they were in the nightclub. Lopez invited them to meet him at Tacos La Villa, a small restaurant near Aldo's, and they agreed.
Lopez met Nancy and Jerrina in the restaurant's parking lot. The restaurant was very busy with people who were leaving the clubs. Lopez and the sisters went inside,stood in line, and waited to order at the counter. Nancy and Jerrina chatted with Lopez, and two women who were standing in front of them.
Lopez also talked with a woman who was standing behind him. Lopez testified he was joking around and being friendly with her. Lopez did not recall anyone telling him not to talk to the woman.
Nancy testified that as they waited in line, she heard a man speak to Lopez in a "foul" manner. Nancy and Jerrina testified that this man was trying to instigate a fight with Lopez. A second man was with him, and he tried to look tough. One of these men asked Lopez, "[W]hat are you looking at?"
Nancy subsequently identified Garcia as the first man who used foul language, and Figueroa as the second man who was trying to look tough. Lopez and the sisters did not know Garcia or Figueroa.
Nancy testified that Garcia and Figueroa were with two women. Garcia continued to use "foul" language and challenged Lopez to a fight. Garcia told Lopez, " 'Let's go outside.' " Jerrina believed that Garcia thought Lopez was flirting with his girlfriend.
Lopez testified that the first man, later identified as Garcia, started making hand signs at him. Lopez thought Garcia was "trying to look for problems." Lopez could not recall if someone accused him of trying to "hit on" Garcia's girlfriend.
Nancy testified that Lopez and Garcia argued. Nancy tried to hold Lopez back, but he pushed her away. Lopez ran out of the restaurant's back door and went into the parking lot. Garcia and Figueroa ran in the opposite direction, and left through the restaurant's front door.
Tiffany Zavala's testimony
Tiffany Zavala was also waiting in line at the restaurant. She was not with Lopez, Garcia, or Figueroa. Zavala testified that she saw Garcia with two women, and a man with a mole on the back of his head (later identified as Figueroa). Garcia started to arguewith Lopez, who was with the two sisters. Zavala testified that Garcia appeared to be the aggressor, and he kept saying things as the sisters tried to calm down Lopez. The man with the mole, and one of the females from Garcia's group, yelled antagonizing things at Lopez.
Zavala testified that Lopez started to walk away, but Garcia said more things to antagonize him. The sisters finally got Lopez to leave, and they went into the parking lot. Zavala saw Garcia and the man with the mole leave through the restaurant's front door. The women from Garcia's group stayed in the restaurant.
The shooting
Nancy testified that she followed Lopez into the parking lot. Garcia was already there and waiting for Lopez. Garcia stood in front of Lopez, he swung his fist at Lopez's head, and hit his face. Lopez tried to punch Garcia but missed.
Nancy testified that Figueroa was standing near Garcia during the altercation. No one else was near them. After Lopez missed with his punch, Garcia turned toward Figueroa and said, " 'Do what you got to do.' "
Nancy testified that just seconds after Garcia made this statement, she saw Figueroa with a gun. Figueroa looked at Lopez and fired multiple gunshots at him. Nancy heard three shots fired one after another, then there was a break, and then she heard two more shots. All of the gunshots were quickly fired, within a short period of time.
Jerrina testified that she was also in the parking lot, and Figueroa turned around and showed her that he had a gun. Jerrina turned away and looked toward the restaurant, and suddenly heard five gunshots.
Lopez testified he did not see anyone with a gun, but heard about six gunshots and realized he was wounded. He fell to the ground and called out for help.After the shooting
Nancy and Jerrina testified that after the shots were fired, a woman who had been with Garcia shouted, "[L]et's go, let's go." Garcia got into a truck with two women and another man. Jerrina used her cell phone and took pictures of the truck as it pulled out of the restaurant's parking lot. The driver almost hit Jerrina as the truck left the area.
Nancy and Jerrina testified that Figueroa, the gunman, ran away and did not get into the truck.
The initial investigation
At 2:20 a.m., Officer Chris Denman was on patrol just a few hundred feet from the restaurant and heard seven gunshots. Denham drove to the restaurant and spoke to the witnesses in the parking lot. He learned that the people connected to the shooting had just left in a silver Chevrolet Silverado, the vehicle pulled out "pretty quickly," and one of the witnesses took cell phone pictures of the vehicle.
Officer Denman immediately pursued the Silverado, which was speeding away from the area. Denman conducted a traffic stop and the Silverado pulled over. The occupants were Garcia, Jessica Trujillo, Eva Chavez, and Luis Sanchez. Figueroa was not in the vehicle.
Lopez's injuries
Lopez was shot multiple times. When the police arrived, Lopez was lying in the parking lot, and Jerrina and Nancy were trying to apply pressure to his wounds. Lopez was not found in possession of any weapons.
The police found five .40-caliber shell casings in the restaurant's parking lot, about 15 to 20 feet from where emergency personnel initially treated Lopez.
Lopez was taken to the hospital and went through several...
To continue reading
Request your trial