People v. Fiu, A160536

CourtCalifornia Court of Appeals
Writing for the CourtBROWN, J.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. NEIL FIU, Defendant and Appellant.
Docket NumberA160536
Decision Date01 April 2022

THE PEOPLE, Plaintiff and Respondent,

NEIL FIU, Defendant and Appellant.


California Court of Appeals, First District, Fourth Division

April 1, 2022


Contra Costa County Super. Ct. No. 5-041756-8


A jury convicted Neil Fiu of, among other things, second degree murder (Pen. Code[1], § 187) of Salvador Espinoza. After the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.), Fiu filed a petition for relief under section 1170.95 alleging that his conviction was based upon the felony murder rule or the natural and probable consequences doctrine. Fiu contends that the trial court erred in denying his section 1170.95 petition. Finding no error, we affirm.



The Trial and Verdict[2]

On the evening of July 24, 2003, Fiu, an "old gangster" who was a member of the Sons of Death (SOD) street gang, was hanging out on the porch of his home, drinking with teenage SOD members Sammy V., Brandon V., Danny G., and Joey O. Fiu's step-son, Juan, and Juan's cousin, Luis Javier Cervantes, were also there. That evening, Espinoza walked by them, yelling disrespectfully. Joey O. and Cervantes testified that Espinoza yelled out "EHL" or "Easter Hill Locos," his gang's name.

When Espinoza walked by, Sammy V. testified that Fiu said to "go get him." Danny G. and Brandon V. started chasing Espinoza. They caught him and started punching and kicking him. Sammy V. said he went over and kicked Espinoza a couple of times on his lower body while Espinoza was on the ground. Sammy V. heard someone yell "SOD" while he was kicking Espinoza. He testified that Espinoza was kicked for about five to ten minutes, and Fiu kicked Espinoza multiple times in the head. Danny G. had a gun and pulled it out when he caught Espinoza, but someone, Sammy V. wasn't sure who, told Danny G. to put it away. Sammy V. denied that Fiu knocked the gun out of Danny G.'s hands.

Joey O. testified that he went to Fiu's house on the night of July 24, 2003, with Danny G., Brandon V., and Sammy V.


Cervantes was also there. Joey O. said that Espinoza called out his gang name as he went by, everyone started walking towards Espinoza, and then Brandon V. picked Espinoza up and threw him on the ground. Danny G. said "SOD," and pulled out a gun. Joey O. denied that Fiu told anyone to stop, and he testified that Danny G. put the gun away when they got Espinoza on the ground. Joey O. testified that he did not kick Espinoza, but Danny G. and Fiu did. Fiu kicked Espinoza in his face, and that kick rendered the victim unconscious. When asked whether he knew how many times Espinoza was kicked, Joey O. said, "I only know of one really." He saw "one particularly hard" blow to Espinoza's head. While Joey O. testified that he wasn't sure whether others aside from Danny G. and Fiu kicked the victim, he agreed it was fair to say there was a frenzy of punching and kicking.

Danny G. testified he believed that when Espinoza came by, Fiu said something like, "Go kill him." Danny G. then said he did not remember Fiu's exact words, "but he did tell me to go do something with the gun." Danny G. said he put the gun in the victim's face, but Fiu took it away, saying, "Don't shoot him." Danny G. said there were two assaults that night separated by ten to fifteen minutes. At one point, Fiu did tell them to "just go home and if the guy got up to start more problems, just be ready for him." Danny G. described a "frenzy" of kicking in the first assault. He told police that Fiu kicked Espinoza only once in the stomach.


Brandon V. testified that Espinoza walked by and was disrespecting them. He got into a fight with Espinoza, and everyone at the house, including Fiu, Danny G., Joey O., Sammy V., Cervantes, and Juan, joined the fight. Brandon V. knocked Espinoza down, Espinoza tried to run away, and Brandon V. knocked him down again. Brandon V. said he kicked Espinoza on the side. Many others kicked him as well. A police officer testified that Brandon V. told him that Fiu ran three steps, cocked his leg, and kicked Espinoza in the head, after which Espinoza went unconscious. At trial, Brandon V. denied that Fiu took a running kick at the victim; he said, however, he thought Fiu knocked the victim unconscious after kicking him in his "upper body, somewhere around there," but he did not know. Brandon V. told police the victim went limp after Fiu kicked him. At some point, they stopped kicking the victim and went back to Fiu's porch. Brandon V. denied that Danny G. had a gun. He testified that Cervantes kicked the victim the hardest, and he told police that Cervantes went "crazy" on the victim.

Cervantes testified that, on the evening of July 24, 2003, four younger kids whom he did not know came over to Fiu's house and hung out on the porch and started drinking. The victim passed by, stumbling such that Cervantes surmised he was drunk, and he started throwing gang signs and said, "Easter Hill Locos." Thereafter, a "big ol' fight" happened. One of the young guys ran up to the victim and pointed a gun at him, and Fiu took the gun. The fight that ensued was even for "about five seconds." Then, the victim fell down and started getting "stomped." All of


the kids were kicking the victim like a football. Fiu kicked him in the upper body near the head. Cervantes later stated that what he saw with respect to Fiu was closer to five or six "stomps" on the victim's chest.

Espinoza lay on the ground not moving, and his assailants went back to the front porch of Fiu's house. Danny G. testified that, when they left Espinoza the first time, he was "breathing a lot, but he couldn't like really -- really move or nothing." Brandon V. testified that he thought Espinoza was alive after the first beating "because I don't think we really hurt him that bad."

Anywhere from ten to twenty minutes after the first attack ended, Ezekiel Johnson showed up. Brandon V. testified that Johnson said he wanted to kill Espinoza, and Fiu said to leave him alone. At that point, Brandon V. said that Espinoza was laying on the curb, and he appeared to be hurt from the first assault. Sammy V. testified that Johnson said, "He's got to go before he starts snitching." Brandon V. testified that Johnson went over and started beating up Espinoza even more. He also said that Danny G. and Sammy V. went back to Espinoza with Johnson and started attacking him a second time. Brandon V. testified that when the second attack happened, Espinoza was not in the same place as where they had assaulted him during the first attack.

Many witnesses testified that Johnson put a milk crate on Espinoza's head or neck during the second attack and started jumping on it. Cervantes said Johnson stood on the crate on the victim's neck and tried to choke him to death. Brandon V.


testified that Sammy V. and Danny G. kicked Espinoza, and Cervantes said that Johnson kicked him in the head. Multiple witnesses testified that Johnson stabbed the victim in the neck during the second attack. Some said that Joey O. also stabbed the victim. Cervantes, Joey O., Brandon V., and Danny G. said that Fiu did not participate in the second attack. Brandon V. testified that Fiu told everyone to leave Espinoza, and Cervantes said that Fiu had told everyone to go home at some point before Johnson showed up. At some point during the second attack, the assailants took Espinoza's clothes. No one called an ambulance.

Dr. Reiber, the forensic pathologist who performed an autopsy on Espinoza, testified that Espinoza died from blunt force trauma to the head. Espinoza did not die from the stab wounds to his neck, and he was alive when stabbed. Dr. Reiber identified multiple blows to Espinoza's head based on the injuries' different configurations, and death was caused by a combination of blunt injuries to the head. No single blow was severe enough to do all the damage. "[A]t least half a dozen separate blows had a significant role in causing his death." Dr. Reiber testified that Espinoza lingered for "at least a few hours" before he died.

A jury found Fiu guilty of second degree murder (§ 187), conspiracy to commit assault with force likely to cause great bodily injury (§ 182, former § 245, subd. (a)(1)), street terrorism (§ 186.22, subd. (a)), and assault with force likely to cause great bodily injury (former § 245, subd. (a)(1)). The jury also found that Fiu committed the murder and the conspiracy offenses to benefit


a criminal street gang (§ 186.22, subd. (b)(1)). The trial court found that Fiu had suffered a prior strike conviction (§§ 667, 1170.12) and sentenced him to 40 years to life.[3]

The Section 1170.95 Petition

In January 2019, Fiu filed a section 1170.95 petition. The trial court appointed counsel, reviewed briefing, and issued an order to show cause.

After an evidentiary hearing, the trial court denied the petition. In its oral ruling, the court first addressed the standard of proof to be applied. Supported by the parties' agreement on this issue, the court applied a substantial evidence test, finding that a reasonable juror properly instructed on the current law "could find the elements of second degree implied malice murder" based on the evidence presented, and that the same juror "could find that [Fiu's] acts of kicking the victim in the head were a substantial factor in causing the victim's death."

As to its causation finding under this substantial evidence standard, the court explained, "The victim died from multiple blunt-force trauma to the head, not from being kicked elsewhere in the body and not from the stab wounds to the neck, as I noted. [¶] The fact that the victim apparently did not die between the first assault by the defendant and the young members of the gang, between that assault and the second assault 10 or 15 minutes later by Mr. Johnson and the young members of the


gang, is not an impediment to a finding of causation....

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