People v. Gastelum

• Decision Date: 25 February 2020
• Docket Number: D075368
• Citation: 45 Cal.App.5th 757,259 Cal.Rptr.3d 44
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor GASTELUM, Defendant and Appellant.

45 Cal.App.5th 757

259 Cal.Rptr.3d 44

The PEOPLE, Plaintiff and Respondent,

v.Victor GASTELUM, Defendant and Appellant.

D075368

Court of Appeal, Fourth District, Division 1, California.

Filed February 25, 2020

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

GUERRERO, J.

A jury convicted Victor Gastelum of the first degree murder of Terrance Rodgers with the special circumstance of lying-in-wait ( Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15) )¹ and the premeditated attempted murder of J.W. ( §§ 187, subd. (a), 664, subd. (a) ). As to both offenses, the jury found that Gastelum participated with the knowledge that another principal in the offense was armed with a firearm. (§ 12022, subd. (a)(1).) In bifurcated proceedings, the trial court found that Gastelum had suffered a prior prison term and had not remained free of custody or subsequent offense for five years thereafter. (Former § 667.5, subd. (b).) The court sentenced Gastelum to consecutive indeterminate terms of life imprisonment without the possibility of parole and life imprisonment with the possibility of parole, plus three years.

Gastelum appealed. He contended (1) the court erred under People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ) by instructing the jury that he could be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine and (2) the court erred by instructing the jury that it could find true the lying-in-wait special circumstance if it found Gastelum acted with "intent to kill," without specifying whom Gastelum must have intended to kill.

In our original opinion, we found Gastelum's contentions unpersuasive and affirmed the judgment. ( People v. Gastelum (2019) 40 Cal.App.5th 772, 253 Cal.Rptr.3d 449.) Gastelum petitioned for review by our Supreme Court. He reiterated these contentions and additionally argued that a newly enacted statute, Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), should apply to him. The Supreme Court granted review and transferred the matter back to this court with directions "to vacate [our] decision and reconsider the cause in light of Senate Bill No. 136[.]" ( People v. Gastelum (2020) ––– Cal.5th ––––, 257 Cal.Rptr.3d 592, 456 P.3d 416.) Senate Bill No. 136 amended section 667.5, subdivision (b) to limit the one-year prior prison term enhancement to sexually violent offenses. (Stats. 2019, ch. 590, § 1.)

We have reconsidered the matter as directed, and we conclude Senate Bill No. 136 applies here because the judgment against Gastelum is not yet final. ( People v. Lopez (2019) 42 Cal.App.5th 337, 341, 254 Cal.Rptr.3d 883 ( Lopez ).) Because Gastelum's prior prison term was for spousal abuse (§ 273.5, subd. (a)), not a sexually violent offense, the one-year prior prison term enhancement can no longer be imposed on him. We therefore modify the judgment to strike the one-year prior prison term enhancement and affirm the judgment as modified.

Our analysis of Gastelum's original contentions remains unchanged. As to the first contention, Chiu held that a defendant cannot be convicted of first degree premeditated murder as an aider and abettor based on the natural and probable consequences doctrine. ( Chiu, supra , 59 Cal.4th at p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.) It did not consider the first degree lying-in-wait murder at issue here, and Gastelum has provided no persuasive argument why Chiu should be extended to this type of murder—particularly where, as here, the defendant and perpetrator are equally culpable, having committed all the same actions that gave rise to the lying-in-wait murder. As to the second contention, Gastelum forfeited any claim of error by failing to object at trial to the allegedly deficient instruction. And, assuming that competent counsel would have objected, Gastelum has not shown prejudice based on his counsel's failure to do so.

FACTS

At the time of the offenses, Gastelum was staying with his cousin, Jacob Gamboa. From his time living on the streets, Gastelum was acquainted with Rodgers and J.W., as well as another individual, L.M.

On June 24, 2016, Gastelum was smoking next to a liquor store in Riverside, California. J.W. approached and confronted him. J.W. believed Gastelum and his cousin Gamboa had assaulted a mutual friend. Gastelum said something that angered J.W., so J.W. punched Gastelum several times. During the fight, Gastelum dropped a portable speaker. Either J.W. or someone else picked it up, and J.W. ended up with it.

Later that night, J.W. was hanging out at a gas station with L.M. and Rodgers. J.W. heard someone call out his nickname. He turned around and saw Gastelum and another person, later identified as Gamboa. J.W. started to walk toward them, but then he noticed each of them was holding a gun. J.W. started to run. He heard gunshots and was hit in his left buttock. J.W. kept running and eventually met up with a friend. He was taken to a hospital, where he spent several days recovering. L.M. also suffered a gunshot wound

to his buttocks and survived. Rodgers was shot five times, including twice in the head. He died at the scene.

Police obtained surveillance video of the initial fight in front of the liquor store, Gastelum and Gamboa's approach to the gas station, and parts of the shooting. The video showed that Gastelum and Gamboa parked some distance from the gas station and took a circuitous route toward the victims.

Police also obtained a cell phone video recorded by Gastelum and Gamboa after the shooting. At the beginning of the video, Gastelum said, "This video is for—fuck [J.W.] and all the niggas." Gamboa commented, "[T]here was not—not a better night than this. I—I got that fool. The same day that—the same day these fools tried to come and start some shit, is the same these—these fools got served." He said, "I fucking got that fucking nigger. Those fools were screaming fool." Gastelum responded, "Yeah I know and that's what P asked him in the beginning, ‘Hey nigga you know how to dance?’ "² Gastelum later said, "I wanted to record it, but I didn't have my phone." Gamboa talked about shooting one of the victims (presumably Rodgers) and explained, "[W]hen he hit, that's when I was on him, I'm like doom, doom, doom. And then that's when I started getting the rest of him." Gastelum remarked, "He paid for a nigger's mistakes." Gamboa said, "I know I hit every single one of them. Fuck yeah, they all got hit. That fool screamed like a little bitch." Gastelum responded, "Oh, yeah." A few days later, Gastelum told a friend, "We took care of those niggers."

At trial, the parties stipulated that only one gun was fired during the shooting. The parties also stipulated to certain statements Gastelum made to police. Gastelum said (1) he had problems with J.W. when he was living on the streets; (2) after J.W. punched him at the liquor store, he challenged J.W. to continue the fight; and (3) he was upset and angry after the fight because he had been hit, "especially by a black guy."

Gastelum testified in his own defense. He admitted suffering a felony conviction for domestic violence, two misdemeanor convictions for domestic battery, and one misdemeanor conviction for false imprisonment. He also admitted he knew that Gamboa had been in prison several times "for guns" and had the nickname of "Maniac." He claimed he had a good relationship with Rodgers, J.W., and L.M.

Gastelum confirmed that J.W. confronted him at the liquor store about their mutual friend. He said he responded to J.W., "I don't know what the fuck you're talking about." Gastelum told the jury he did not assault the friend.

At the liquor store, J.W. hit Gastelum and knocked him to his knees. The portable speaker, which belonged to Gamboa, fell on the ground. J.W. picked up the speaker and started walking away. Gastelum told J.W. to return the speaker because it did not belong to him. J.W. replied, "Fuck you. Tell your cousin to come get it himself." Gastelum claimed he was not mad afterward; he just wanted the speaker back.

Gastelum called Gamboa. Gastelum told him he had been in a fight and J.W. took the speaker. Gamboa picked Gastelum up in his car. Gamboa was mad at Gastelum and J.W. They drove around looking for J.W. but could not find him. Gastelum and Gamboa went home.

Gamboa was still angry, but Gastelum was tired so he went to sleep. Later, according to Gastelum, Gamboa woke him up and said they should drive to get something to eat. On the way, Gamboa saw "some black guys" and thought one might be J.W. They drove around some more, and Gamboa parked. Gastelum claimed he thought they were just going to fight J.W. and get the speaker back. He testified he was not armed and did not know Gamboa had a gun.

Gastelum and Gamboa walked in a roundabout way and eventually approached the victims. Gastelum saw several men but could not identify them because his eyesight is bad. He claimed not to know whether J.W., L.M., or Rodgers was there. Gastelum called out J.W.'s nickname to see if he was one of the men. (Gastelum claimed that he called out J.W.'s nickname on his own accord; he denied that Gamboa asked him to do so.) In response, J.W. turned around, and Gastelum recognized him because of his glasses.

Gamboa started shooting. Gastelum claimed to be surprised; he said he did not see Gamboa pull out a gun. After the shooting stopped, Gamboa and Gastelum ran back to Gamboa's car and drove home. Gastelum acknowledged recording the cell phone video recovered by police. He claimed he recorded it because he was upset and hurt. He asserted that the word "he" in his statement, "He paid for a nigger's mistakes," referred to J.W., not anyone else.

After his arrest, Gastelum lied to police...