People v. Herena
| Docket Number | H042741 |
| Decision Date | 25 October 2024 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ABEL JOSEPH HERENA et al., Defendants and Appellants |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
(Santa ClaraCounty Super. Ct.No. C1359109)
DefendantsAbel Joseph Herena, Aaron Jovani Lomeli, and Juan Valdovinos Cruz were leaving the Fairways Apartments with friends when they encountered Phillip Ayala, Alex Rodriguez, and Andres Rodriguez[1] arriving in the parking lot.Confronted by Ayala, Lomeli responded by saying, "Pull it out," and Herena drew his gun.Backing toward the street as the conflict escalated, Herena eventually fired 10 times, killing both Ayala and Rodriguez and wounding Lomeli's companion Shanyka Perez.Cruz, also armed, fired twice.
At the conclusion of a 10-month trial on murder and related charges the court instructed the jury on theories of liability that the Legislature has since eliminated or narrowed: (1) murder as the natural and probable consequence of either (a) aiding and abetting assault with a firearm or (b) conspiring to commit such an assault, and (2) participation in a criminal street gang by acting for its common reputational benefit.Relying on those instructions, the prosecution argued among other theories that (1) the fatal shooting was the "inevitable" consequence of the defendants' "walk[ing] out into that parking lot" as armed gang members, (2) the reflection necessary to premeditation and deliberation began with each defendant's decision to "go out into [their] gang territory with two other gang members and loaded guns," and (3) the shooting "enhanc[ed][the gang's] reputation" by demonstrating that its members were "ruthless" and "violent" enough to be "respected."The jury convicted the defendants of the murders, assault firearm and gang offenses, finding true applicable firearm, injury, and gang enhancements and (as to Lomeli and Herena) a multiple-murder special circumstance.
Before the close of briefing in this appeal, the Legislature amended Penal Code sections 188,189, and186.22[2] to abrogate the natural and probable consequences doctrine and require that the common benefit necessary to a gang offense or enhancement be more than reputational.(SeeSen. BillNo. 1437 (2017-2018 Reg. Sess.)(Senate BillNo. 1437);Assem. BillNo. 333 (2021-2022 Reg. Sess.)(Assembly BillNo. 333).)The defendants seek reversal based on these legislative developments, as well as on their original assignments of error (instructional error, insufficiency of the evidence, and sentencing error in the imposition of enhancements, fines, fees, and restitution).
As to all defendants, we will reverse the gang convictions and gang enhancements; as to Lomeli and Cruz, we will reverse the murder convictions; as to all other offenses of conviction, we affirm; and our remand makes it unnecessary to reach their sentencing claims.
In the operative information, the Santa Clara County District Attorney charged Cruz, Herena, and Lomeli jointly with the murder of Ayala and Rodriguez (§ 187, subd. (a); counts 1 &2), assault with a semiautomatic firearm on Perez (§ 245, subd. (b); count 3), and three counts of participating in a criminal street gang (§ 186.22, subd. (a); counts 7, 8, &9).Herena and Lomeli were separately charged with owning, purchasing, receiving, and possessing a firearm by a felon (§ 29800, subd. (a)(1); counts 4 (Herena) &5 (Lomeli)).Cruz was separately charged with carrying a loaded firearm on his person or in a vehicle when he was not the registered owner.(§ 25850, subd. (a); count 6).)
As to each count, it was alleged that all three defendants committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang.(§ 186.22, subd. (b)(1).)
As to counts 1 and 2, it was alleged that Herena and Cruz personally and intentionally discharged a semiautomatic firearm and proximately caused great bodily injury and death (§ 12022.53, subd. (d)), that Cruz and Lomeli were principals in the offenses charged and at least one principal intentionally and personally discharged a semiautomatic firearm that proximately caused great bodily injury or death (§ 12022.53, subds. (d) &(e)(1)), and that in the proceeding, each of the defendants had been convicted of more than one offense of murder in the first or second degree (§ 190.2, subd. (a)(3)).
As to count 3, it was alleged that Herena and Cruz personally used a semiautomatic firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§§12022.7, subd. (a), 1203, subd. (e)(3)).
As to counts 7, 8, and 9, it was alleged that Herena and Cruz personally used a semiautomatic firearm (§ 12022.5, subd. (a)).
Finally, the information alleged that Herena had a prior felony conviction within the meaning of section 667.5, subdivision (b).
The prosecution's theory of the case was that the night of the shooting, Herena, Cruz, and Lomeli were members or recruits of a violent Norteno street gang, El Hoyo Palmas (EHP), murder was the unavoidable consequence of the group going out together while armed, and they murdered Ayala for disrespecting Lomeli, killing Rodriguez and injuring Perez in the process.
The Fairways Apartments complex on San Antonio Court in San Jose has a driveway that proceeds past seven parking spots alongside the complex to an underground parking lot.Ayala and Rodriguez were found dead in the driveway at the rear of the cars parked closest to San Antonio Court.Perez, wounded in the leg, was found between two of those parked cars.
Ayala had been killed by a .22-caliber bullet to the head and had a secondary gunshot wound to his right thigh and hip area from a .32-caliber bullet.It was unclear whether the .22-caliber head wound preceded the .32-caliber leg wound.A .22-caliber bullet had dissected Rodriguez's aorta, killing him in minutes, and a later .32-caliber gunshot struck his abdomen.(It was not apparent that his abdominal injuries would have been fatal.)DNA evidence indicated that a .22-caliber bullet later recovered from the scene was what struck Perez in the thigh.
Ten .22-caliber shell casings, each bearing the same headstamp, were recovered from locations extending from the Fairways-side curb of San Antonio Court and across the roadway to the opposite corner where San Antonio Court bends into another street.Two .32-caliber casings were found between the two cars parked in the driveway closest to the street.
The location of the casings led the prosecution criminalist to conclude that there had been two shooters: The shooter with the .22-caliber weapon was moving when firing, from the front of the driveway and across San Antonio Court, and the second shooter was either between or just to the rear of the cars parked in the driveway closer to the sidewalk.
Ayala and Rodriguez spent their last evening drinking with their friend Andres at an Applebee's restaurant.Ayala was drunk, irate, and convinced other customers were "mugging" him.After Ayala got angry with another patron in the men's room, the three friends left for the Fairways Apartments in San Jose, where Ayala had been staying.
After parking at the apartment complex, Ayala, Rodriguez, and Andres encountered Lomeli, Herena, Cruz, and Perez.Lomeli, Herena, and Cruz had spent the evening at the apartment complex with Perez, who lived there, and were leaving the building with Perez and Ruben Lopez.There was no evidence that the two groups knew each other, but Perez thought Ayala was "mean-mugging" her and Lomeli, so she warned Lomeli that perhaps the car he was then leaning against might be Ayala's.When Lomeli apologized to Ayala, Ayala started yelling.
On hearing Lomeli say that he was tired of Ayala's disrespect, Andres began to fear the two would fight.Ayala "looked like he just wanted to fight" and answered, So Andres urged Ayala to take him to the apartment, trying but failing to push Ayala away from Lomeli.When Lomeli told his companions, "Pull it out," Herena pulled out a gun and pointed it in the air.Perez, who denied seeing a gun, testified that as Herena and Cruz backed away toward the street, Ayala and his companions advanced towards them.Although Andres had told the police that Herena had been backing up with the gun for at least 10 seconds, Andres at trial described Herena as "dancing around" and "bouncing around like a monkey,""back and forth," for " 'about ten seconds'" while holding the gun in the air.Rodriguez then told Andres, "Go get the whip," which Andres understood to mean he should go fetch their car.
Andres at trial did not recall hearing shots but saw Herena run to an approaching van, which then drove off with him.Rodriguez was still breathing at that point, but Ayala was not.Andres heard a woman screaming: Perez had heard the gunfire but was shot before she could get away.
Herena's trial counsel conceded that Herena was the shooter of the .22-caliber gun and fired it 10 times.
The prosecution presented many witnesses over many days on the gang affiliation of the three defendants-general testimony about the EHP subset and the Norteno criminal street gang and particularized testimony about various gang kites (messages passed between gang members in custody), the defendants' association with each other and with other gang members, and criminal acts perpetrated by people associated with EHP.No evidence was presented to suggest that Ayala or his companions were gang members.
The prosecution presented expert testimony from district attorney investigator Michael...
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