People v. Lisea
| Decision Date | 31 January 2013 |
| Docket Number | C067767 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDUARDO LISEA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of San Joaquin County, George J. Abdallah, Jr., Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of Appeal; and Michael E. Platt for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
After an initial jury deadlocked, a second jury, upon retrial, convicted defendant Eduardo Lisea of attempted murder, assault with a firearm, and criminal street gang participation, but acquitted him of permitting another to shoot from a vehicle. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(2), 186.22, subd. (a), and 12034, subd. (b), respectively.)1 The jury also found true some gang enhancements, but found not true that defendant had personally used or discharged a firearm. Defendant was sentenced to state prison for 32 years to life.
The prosecution's main theory was that defendant—during a confrontation between his gang and a rival gang that resulted in the shooting of an innocent bystander—aided and abetted the offenses specified above, which were the natural and probable consequence of the offenses he had committed, disturbing the peace or simple assault.
In the published portion of this opinion, we conclude that defendant, as a convicted aider and abettor of the attempted murder under the natural and probable consequences doctrine, is a "principal" within the meaning of the section 12022.53, subdivision (e)(1) (hereafter section 12022.53(e)(1)) 25-year-to-life gang firearm enhancement. (§ 12022.53, subds. (a)(1), (18), (d) & (e)(1).)
In the unpublished portion of this opinion, we examine defendant's other challenges and find no basis for reversal. Those challenges focus on the natural and probable consequences doctrine, the evidence that a rival gang member may have been the shooter, and the trial court's failure to instruct on self-defense and on attempted voluntary manslaughter based on imperfect self-defense or heat of passion. Accordingly, we shall affirm the judgment.
On May 9, 2008, members of the Sureños and Norteños street gangs clashed in the parking lot of a Stockton grocery store, resulting in an innocent bystander, then 18-year-old Christopher Smith, being shot in his right eye.
The confrontation actually began inside the store when defendant, aSureño, made provocative comments and threw gang signs to two Norteños members, Jonathan Pimentel and Billy Ray Cook, amid Pimentel's display of colors (red).
The confrontation continued into the parking lot, with Cook shouting at defendant and his companions. Both groups then pushed shopping carts at one another. A bystander, referring to defendant's group, yelled "They have a gun." After this utterance, Pascual Pimentel (Jonathan's father and a member of the Norteños group) displayed a "Norte" tattoo to defendant and his crew.2
Two witnesses—N.D. (the victim Christopher Smith's then nine-year-old brother) and Justine Tango—saw Pascual run to a green SUV, grab a gun (Tango was not sure what was grabbed), and apparently run back to the altercation; shortly after this, these two witnesses heard three gunshots from positions of cover. Three other witnesses— Cynthia Stolt, Melissa Langford and Albert Harps—supported this account; these three witnesses, again, heard but did not see the firing. Another witness, Deyanira Andrade, saw Pascual run by her car and later heard three gun shots in rapid succession (although Andrade believed the shots came from the area in which defendant's group was congregating—she never actually saw a gun).
Four other witnesses—then 12-year-old A.H., Jesus Lomeli, Jose Lomeli, and the victim himself, Christopher Smith—saw gunshots being fired toward the Norteños groupat the front of the grocery store from defendant's blue Chevy pickup truck as it drove from the scene.
Finally, Juan Trejo saw the two groups arguing in the parking lot, and heard one of the arguers say, Trejo and his companion, Carlos Chitiva, later saw a man, who was wearing a red shirt, running through the parking lot alongside a Chevy pickup holding one hand in his waistband (as if he had a gun) and cursing. They both heard several rapid gunshots, which came from the parking lot behind them (they were facing the store).
The hands of Cook, Pascual, and Jonathan (i.e., the Norteños members) tested positive for gunshot residue.
Two possible bullet strikes were found on the exterior front wall of the grocery store. Nearby, a mushroomed bullet (consistent with having hit a wall) was found; this bullet matched a bullet fragment removed from victim Smith's head—both were fired from the same gun, a .32 caliber.
About a month before the shooting, police officers found two bullet shell casings in defendant's Chevy pickup truck: a .32-caliber casing in the pickup bed, and a nine-millimeter casing in the driver's door pocket.
In a police interview, defendant initially denied that anyone had fired a gun from his truck. Eventually, though, defendant said that as he pulled his truck out of the parking lot, two or three Norteños chased after the truck on foot and reached into their clothing as if they were concealing something. After defendant turned right (apparently in exiting the lot), one of his passengers, "Cornejo," fired at the Norteños from the middle of the front seat. Cornejo fired more than two shots. Defendant grabbed Cornejo's arm,trying to stop the firing and calm Cornejo. When they returned to defendant's house, defendant confronted Cornejo about the shooting.
In his trial testimony, defendant stated that he, Eric Espinoza, and Jose Pineda drove to the grocery store in his mother's 2006 Chevy/GMC truck. The altercation outside the store occurred, with the other group as the aggressor, pushing shopping carts and making threats. In response, Espinoza flashed a pocket knife to ward them off. Defendant, Espinoza and Pineda climbed into defendant's truck and drove off; they did notice, however, that Pascual was running after them holding a gun at his waist. Pascual was about 55 to 60 feet away. Defendant did not slow down, he was "panicked"; his friends were screaming to step on the gas because "[Pascual] has a gun," and he ducked down as he drove. Defendant did not hear any gunshots. Defendant, however, did not tell the police in his interview this specific information about Pascual, although he was asked if he had seen anyone with a gun or anyone shooting.
Based on a variety of factors, two police gang experts opined that defendant was a Sureños gang member on the date of the offense, and they provided a context to this gang confrontation.
for Street Gang Participation (§ 186.22, subd. (a))
Defendant contends the trial court, on its own, should have tailored the standard instruction it gave on the aiding and abetting doctrine of natural and probable consequences, CALCRIM No. 403, to instruct the jurors specifically that they could notfind defendant guilty under that doctrine if they concluded that one of the rival gang members (i.e., one of the Norteños) shot Christopher Smith. We disagree.
As explained by our state high court, the natural and probable consequences doctrine constitutes a particular kind of aiding and abetting. (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), quoting People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman); People v. Medina (2009) 46 Cal.4th 913, 920 (Medina))
The trial court instructed with CALCRIM No. 403 as relevant:
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