People v. Lima

• Decision Date: 27 May 2020
• Docket Number: B293030
• Citation: 49 Cal.App.5th 523,262 Cal.Rptr.3d 864
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andres LIMA, Defendant and Appellant.

49 Cal.App.5th 523

262 Cal.Rptr.3d 864

The PEOPLE, Plaintiff and Respondent,

v.Andres LIMA, Defendant and Appellant.

B293030

Court of Appeal, Second District, Division 5, California.

Filed May 27, 2020

I. INTRODUCTION

A jury convicted defendant and appellant Andres Lima of the attempted willful, deliberate, and premeditated murder of Israel R. (Pen. Code, §§ 664/187, subd. (a)¹ ) and the assault of Omar O. by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury found true the allegations that in the commission of the attempted murder, a principal personally used and personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d) & (e)(1)) and defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subds. (b)(1)(C) (attempted murder) & (b)(1)(A) (assault)).² Defendant admitted he served two prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to 32 years to life in state prison.

On appeal, defendant contends we must reverse his conviction for attempted murder in light of Senate Bill No. 1437 which abrogated the natural and probable consequences doctrine; even if Senate Bill No. 1437 did not abrogate the natural and probable consequences doctrine as to attempted murder, the trial court erred in failing to instruct the jury that a premeditated and deliberate attempted murder had to be a natural and probable consequence of the target crime; the prosecutor committed misconduct by using prospective jurors’ comments to bolster the prosecution's factual theories and inflame the jury's passions and biases; remand is warranted to allow the trial court to exercise its discretion whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h); and he is entitled to 116 days of conduct credit. We remand the matter to the trial court so it may exercise its discretion whether to strike any of defendant's section 12022.53 firearm enhancements, order the sentencing minute order modified to reflect that defendant was awarded 116 days of conduct credit, and affirm the judgment in all other respects.

II. BACKGROUND³

A. The Prosecution's Case

1. The Fight and Shooting

At around 10:00 a.m. on July 17, 2016, 16-year-old Israel O. had a dispute on Facebook with another minor, Miguel R., during which Miguel challenged Israel to a fight at the Rosecrans Recreational Center, a park. Israel agreed. Israel wanted "backup," so he asked his brothers Aaron O. and Omar O. and Omar's friend Alvaro Q. to accompany him.⁴ At about 12:45 p.m. that day, Israel and the others went to the Rosecrans Recreational Center.

The Rosecrans Recreation Center was in the Gardena 13 gang's territory. Neither Israel nor Miguel was a gang member. Omar, Aaron, and Alvaro also were not gang members.

After arriving at the park, Israel and the others sat on a bench. Israel got up to put his sweatshirt in Aaron's car. As Israel walked to Aaron's car, two groups of people approached him. The groups totaled 10 people and consisted mostly of Hispanic males. Defendant approached Israel and said, " ‘Where the shoelaces at?’ " "Shoelaces" was a derogatory term that referred to South Los gang members. South Los and Gardena 13 were rival gangs. Defendant then asked Israel where he was from. Israel, who understood defendant to be asking to which gang he belonged, did not respond. Defendant punched Israel in the face multiple times. Israel defended himself.

Omar and Aaron ran to assist Israel and became involved in fights with defendant's companions. Omar approached the group and said, "[W]hoa, stop, what's happening?" He heard someone say " ‘Nah, fuck that’ " and was then struck in the face and the back of the head, multiple times, by two of defendant's companions. Omar could not identify his attackers. He suffered a cut to his left eyebrow and lost vision in his left eye for some period of time.

Aaron heard defendant say, " ‘This is Gardena.’ " Aaron responded, " ‘I don't bang.’ " Alvaro saw a man other than defendant make a gang sign with his hand and heard him say, " ‘Gardena’ " and " ‘Fuck your dead homies.’ "

At the same time, Alvaro approached Miguel, whom he knew, to ask what was taking place. They argued and attempted to fight, but a woman with a baby interceded.

At some point, defendant picked up Israel by the legs and slammed him to the ground. Defendant picked up Israel again and pinned his arms behind his back. On direct examination, Israel testified that defendant then said, " ‘Get the burner.’ " Israel understood a "burner" to be a gun. On cross-examination, Israel testified he was not sure if he heard the word "burner" or if defendant used that word. On redirect examination, Israel explained that he was having trouble remembering, given the passage of time. When he told a detective in July 2016 that defendant said, " ‘Get the burner,’ " he was very clear.

Omar testified that he heard defendant say, " ‘Get the burner, get the burner, come shoot him.’ " Aaron testified that he heard defendant or one of his codefendants say something like, " ‘Take out the strap,’ " or " ‘Take out the burner.’ " He understood "strap" or "burner" to be a gun. Aaron heard defendant say—referring to Israel—"Shoot him ...."

A juvenile, Leonardo E., shot Israel in his lower abdomen. Leonardo said something about the number 13, and defendant and his companions ran away.

A three-second video of part of the incident at the park was provided to the police. Los Angeles Police Department Detective Christian Mrakich showed the video to Gardena Police Department Officer Jason Hooker and Los Angeles Police Department Officer Joseph Chavez who identified, among others, defendant and Leonardo from the video.

2. Gang Evidence

In July 2016, Officer Hooker worked in a unit that handled all gang-related crimes in Gardena. Gardena 13 was the largest gang in Gardena. The number 13 in the gang's name showed it was "paired up" with the Mexican Mafia. Officer Hooker opined that defendant and Hernandez were members and Leonardo was an associate of the Gardena 13 gang.

Officer Chavez testified as the prosecution's gang expert. As a member of the Los Angeles Police Department's gang unit, one of the gangs he was assigned was the Gardena 13 gang. Officer Chavez opined that Gutierrez was an associate and defendant, Hernandez, and Leonardo were members of Gardena 13. Defendant and Hernandez stipulated that they were members of Gardena 13.

Officer Chavez testified that the inquiry, " ‘Where are you from’ " is gang-related and usually leads to a confrontation or an altercation. According to Officer Chavez, veteran gang members use juvenile gang members—veterans know that juveniles will not receive the same punishment for committing the same crimes as adults. "Up-and-comer[s]" in a gang "have to show that they're willing to do what the older members ask of them and be who the older members want them to be."

The prosecutor gave Officer Chavez a set of hypothetical facts based on the facts in this case and asked if the attempted murder and assault were committed for the benefit of, at the direction of or in association with the Gardena 13 gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. Officer Chavez testified that the shooting in the hypothetical was committed for the benefit of, in association with, and at the direction of Gardena 13.

B. The Defense Case⁵

Martin Flores testified as a gang expert for Gutierrez.⁶ He testified that he was one of 12 non-law enforcement gang experts on the Los Angeles County Superior Court's panel. He grew up in East Los Angeles where he was exposed to gangs. As an adult, he worked throughout Los Angeles County to divert young people from gang participation. Later, he worked with high risk and incarcerated young people through a conference he developed called "Wake Up, It Ain't No Game." Flores "work[ed] a lot" as a gang expert and earned $220,000 the previous year.

Flores testified he was familiar with the case. He had read the police reports and listened to some of the testimony. He opined that simply because Gutierrez lived in an area where gang members lived and spoke to people in that area did not make Gutierrez a gang associate. Flores believed that Gutierrez was not a Gardena 13 associate or member. Gutierrez was not at the Rosecrans Recreational Center in a gang capacity; he was there with other members of the community, a couple of whom had gang histories. Like Gutierrez, those community members were not at the park in a gang capacity.

Flores explained that the fight and shooting resulted from a personal conflict and were not gang related. The victim and his companions were not gang associates or members. Leonardo did not have gang tattoos and testimony about his gang status was speculation.

On cross-examination, the prosecutor told Flores to assume that the first thing the person who was shot was asked was, "Where are you from?"; Gutierrez was actively involved in the fight and threw punches; he threw up a "G"; he said, "Gardena"; he said, "[F]uck your dead homies" at the beginning of the fight; and he said, "[S]hoot him" and asked if that was enough to change his opinion that Gutierrez was not a gang associate or member. Flores said it would not change his opinion without further information. Flores explained that the inquiry, " ‘[W]here are you from?’ " is not automatically a gang challenge and may be an attempt to recall a person's identity.

III. DISCUSSION

A.-B.^**

C. Prosecutorial Misconduct

Defendant argues that the prosecutor committed misconduct when she referred to prospective jurors’ comments in her rebuttal argument to bolster the prosecution's factual theories and inflame the jury's passions and biases.

We agree that the prosecutor...