People v. Gonzalez
| Decision Date | 10 April 2020 |
| Docket Number | B296206 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOVANNY GONZALEZ et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA072383)
APPEALS from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. As to Defendant Gonzalez, affirmed in part and reversed in part. As to Defendant Perez, affirmed in part and reversed in part.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jovanny Gonzalez.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Perez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Jurors convicted defendants Jorge Perez and Jovanny Gonzalez of the murder of Armando Reyes and the attempted murder of Reyes's girlfriend S.B. S.B. drove Reyes to the scene of the shooting, and Perez drove Gonzalez. Gonzalez shot Reyes as he stepped out of S.B.'s car. Perez and Gonzalez were upset with Reyes because Reyes had insulted their gang. After the shooting, S.B. stopped at a nearby street because she knew that Reyes would not make it to the hospital.
With respect to the attempted murder of S.B., the trial court instructed jurors on the kill zone theory, and the prosecutor urged jurors to apply that doctrine to find defendants guilty of the attempted murder of S.B. People v. Canizales (2019) 7 Cal.5th 591 (Canizales), decided after the trial in this case, significantly narrowed the reach of the kill zone theory. Canizales warned that "there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Id. at p. 608.) The high court held that such an instruction is appropriate where the "only reasonable inference from the circumstances of the offense is that defendant intended to kill everyone in the zone of fatal harm." (Ibid.) Applying Canizales, we conclude the trial court erred in instructing jurors on the kill zone theory and the error prejudiced defendants, requiring the reversal of their convictions for the attempted murder of S.B.
Perez also challenges the sufficiency of evidence showing that he aided and abetted Gonzalez with the specific intent to kill S.B. His argument is persuasive because no evidence supportedthe inference that he intended Gonzalez to shoot S.B. (as opposed to Reyes).
Defendants also challenge the admission of testimony from a deputy coroner who did not perform Reyes's autopsy, but instead, reviewed the autopsy performed by his retired colleague. Defendants forfeited their objection by failing to raise it in the trial court. In any event, the only import of the coroner's testimony was that Reyes died of multiple gunshot wounds. Other witnesses testified that Reyes died shortly after Gonzalez shot him, and the coroner's testimony was cumulative. Therefore, assuming error arguendo in the admission of the deputy coroner's testimony, the error was harmless beyond a reasonable doubt.
We reverse defendants' convictions for attempted murder of S.B. and remand for resentencing as to Perez, and for resentencing and possible retrial on the attempted murder count as to Gonzales as long as such retrial is not based on a kill zone theory. In all other respects, we affirm the judgment.
Reyes was a high-ranking member of the Palmas 13 Kings gang, an Antelope Valley gang. Omar Olivares also was a Palmas 13 gang member. Reyes and Oliveras often used methamphetamine together. In June 2017, S.B. was Reyes's girlfriend.
Gonzalez and Perez were members of the Midtown Criminals, also known as MTC, another gang in the Antelope Valley. Perez's moniker was Squeeks (also spelled Squeaks).
S.B. drove Reyes to pick up Perez. Reyes wanted Perez, a tattoo artist, to tattoo him. Oliveras was in the backseat of S.B.'s car. After they picked up Perez, S.B. did not see Perez because Reyes was aggressive with her when she tried to look at Perez.
Before they reached a location where Perez could tattoo Reyes, Reyes and Oliveras argued. The argument concerned whether Oliveras stole Reyes's stash of methamphetamine. Reyes told S.B. to stop the car to drop off Olivares. S.B. refused until the group reached a gas station in Rosamond, where she stopped the car. Reyes told Oliveras to exit the car. Oliveras exited, and Perez followed even though Reyes had not told Perez to leave the car. Perez was "irritated" that Reyes left him and Oliveras at the gas station.
On June 4, 2017, Reyes and Perez had the following colloquy on Facebook:1
Reyes: "I need my money or tatt or I can make things really bad."
Perez: "After u doped me off in Rosamond? . . . now u wanna treated me?"
Reyes: "I do what I want when I want."
Perez: "Not around my parts."
Reyes: ". . . Foo I'm a dangerous azz enemie to have."
The colloquy continued:
Perez: "Look foo u can miss me with the fake politics bullshit . . . I ain't with that shit . . . wanna treated me with the light? . . . . go ahead I dare u."
Reyes: "Fuck u then and mantecas ol turn down ass foos that's why u got dissed and didn't do shit."
Reyes repeated, "Fuck mantecas" and Perez wrote, "Fuckin p.c." Perez testified mantecas meant lard. Eventually Reyes said, "Fuck ur dead homies." Perez testified that Reyes's comment "[f]uck your dead homies" was an insult.
During their conversation, Perez told Reyes, "Come over and stop wolfing." Perez testified that meant "[s]top messaging me talking shit." Perez told Reyes, "U ain't bout shit but running ur mouth," and instructed him, "COME OVER BITCH."
Then the following colloquy occurred:
Perez: "I fuckin dare u."
Reyes: "U ain't bout that."
Peres: "Come and see."
Reyes: "I woulda smoked u."
Perez told Reyes, "Don't be a lame," and Reyes said, "Like I said fuckkkkk mtc" and repeated multiple times "Fuck mtc." Reyes also repeated the insult "fuck ur dead homies."
Perez showed his conversation with Reyes to Perez's fellow MTC gang members with monikers Menace and Blue. All three were upset about Reyes's insults. Later Perez showed the messages to "Mousey," another MTC member who wanted to fight Reyes because of the messages. Perez asked Reyes his location so that Mousey could fight Reyes. Perez testified that he sent the Facebook messages to Reyes because he did not want to appear weak in front of his gang members.
Reyes's last message to Perez said, "I'm pulling up." The only reference in the texts to S.B., was Perez's comment, "Tell ur fat ugly bitch . . . I said thanks for the ride."
Reyes went to a tattoo shop and obtained his tattoo from someone other than Perez. Reyes also smoked methamphetamine. S.B. and Reyes went to Reyes's brother's house, where they drank several drinks. S.B. overheard Reyes tell his brother that he would handle something one-on-one. S.B. did not know what Reyes intended to handle one-on-one. Shortly afterwards Gonzalez shot Reyes.
As S.B. was driving Reyes home, Reyes spotted a white Honda. The car was stopped in the middle of the street. S.B. and Reyes approached the stopped car, and the driver sped off. The white Honda had a dealer license plate.
Reyes told S.B. to follow the white car. S.B. did not want to follow the white Honda, but Reyes insisted that she follow it. S.B. made a U-turn and followed the white car. The white Honda stopped. As S.B. pulled up alongside the white Honda, Reyes exchanged words with its occupants. Reyes was positioned closer to the white Honda than S.B.
Reyes announced his gang name. Someone in the white Honda said MTC. Reyes put one foot out of the car, and it looked like he was getting out. Then he exited S.B.'s car and said hewanted to fight. Then S.B. heard gunshots.2 The gunshots occurred seconds after Reyes exited S.B.'s car. No gunshot hit S.B.
Either Perez or Gonzalez said, "[T]hat's what you get." Reyes jumped into the car and told S.B. to get down and drive away. Reyes said, "Go, leave," after the gunshots. S.B. drove to the next street where Reyes stopped breathing. S.B. planned to take Reyes to the hospital "but then he stopped breathing" and she "knew [she] couldn't make it." People helped Reyes out of the car and a nurse in the neighborhood tried to revive him, but according to S.B., "[H]e was already gone."
S.B. asked someone to call 911. In the 911 call, S.B. described "guys pulled up to the car, and they just started shooting him." She indicated that the shooter was in a white Honda Accord. S.B. stated that Reyes was no longer breathing. When the paramedics arrived, they could not help Reyes.
Later, S.B. observed bullet holes in her car. S.B.'s car sustained a bullet to the front passenger door jam, below the locking mechanism. A bullet traveled from inside out through S.B.'s windshield near the driver seat.
When interviewed after the shooting, S.B. said that Reyes exited her car; S.B. heard five to seven shots; then Reyes "fell back into her vehicle." The prosecutor clarified that S.B. said Reyes fell into the car after S.B. heard five to seven gunshots.
Based on photographic evidence, Deputy Sheriff Steven Blagg testified that a bullet struck the door jam in S.B.'s vehicle. A bullet also hit the left-lower corner of the windshield. Thebullet traveled from inside the vehicle through the windshield. Bragg testified that the trajectory of the...
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