People v. Mejia

• Decision Date: 30 July 2019
• Docket Number: C081313
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JESUS ALEXANDER MEJIA, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
JESUS ALEXANDER MEJIA, Defendant and Appellant.

C081313

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)

July 30, 2019

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF1402)

A jury convicted Jesus Alexander Mejia of attempted murder, assault with a deadly weapon, shooting at an occupied vehicle, and being an active participant in a criminal street gang. The jury also found true various firearm and gang enhancement allegations. The trial court sentenced defendant to an aggregate determinate term of 45 years plus an indeterminate term of 25 years to life.

Defendant now contends (1) accomplice testimony was not corroborated by independent evidence connecting him to the shooting; (2) the trial court violated his right to confront witnesses by preventing cross-examination on the topic of the punishment his accomplices would have faced had they not cooperated with the prosecution; and (3) this matter should be remanded to permit the trial court to exercise its discretion to strike the

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section 12022.53 firearm enhancements pursuant to the recent amendment to Penal Code section 12022.53, subdivision (h).¹ In addition, following supplemental briefing, defendant further contends (4) the attempted murder convictions must be reversed because Senate Bill No. 1437 eliminated the natural and probable consequences doctrine basis for attempted murder liability.

We will affirm the convictions but remand to permit the trial court to exercise its discretion regarding the section 12022.53 firearm enhancements. We will also direct the trial court to correct the abstract of judgment to reflect the orally-imposed sentence.

BACKGROUND

Jonathan D. drove his car to a market on December 31, 2013.² His girlfriend and three children were also in the car. Jonathan's mother Susan D. followed Jonathan in her burgundy-colored car. Her boyfriend and grandson were in her car. Jonathan parked his car at the market and Susan stopped behind Jonathan's car. Susan had seen another car following them as they drove to the market, and store surveillance video showed the car drive by. Jonathan heard a pop when he exited his car. He ducked behind his car door and heard more pops. There were four to five gunshots.

A witness saw a car with four or five people shooting at another car. The individuals in the front passenger seat and the seat behind the front passenger shot at Jonathan's car. Jonathan had a gunshot wound to his wrist, a window of his car was shattered, and there were bullet holes in his car.

Jonathan told a Yuba County Deputy Sheriff that an individual named Martin was one of the people who shot at him because Martin was a northerner. Martin Gonzales

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was a Norteño gang member who lived at Peach Mobile Estates (Peach Mobile). Jonathan was a southsider. Authorities arrested Gonzales, but Jonathan refused to further cooperate with law enforcement, saying he was not a snitch. At trial, Jonathan testified he did not see who shot him. Susan testified Gonzales was not a shooter.

E.S. saw her boyfriend Javier Hernandez with defendant on the evening of the shooting. Hernandez was driving a tan-colored car with large chrome rims. Hernandez and defendant drove by E.S.'s house about three times, honking at E.S. Hernandez ultimately turned himself in to police. At trial, E.S. claimed she lied to authorities about seeing Hernandez with defendant because she was trying to get Hernandez in trouble. However, in a recorded conversation between E.S. and Hernandez after the shooting, E.S. asked Hernandez why he passed by her house. When Hernandez said he did not remember doing that, E.S. replied, "Yeah, you guys passed by my house three times."

Christopher Hammonds was a friend of defendant and they lived near each other. Police arrested Hammonds. Susan testified Hammonds was not a shooter.

Susan identified defendant's tan Grand Marquis car as the shooters' car. But she did not identify defendant as a shooter. Police arrested defendant. Rap lyrics found in defendant's jail cell tended to incriminate him in a shooting. The lyrics read, "About two years ago I was in the streets, rocking pistol in my waist, pants sagging while I was walking . . . . Then I hit county jail . . . . So many homies switching up,³ I don't know who to trust . . . . Then three homies packt you out because they knew that you wasn't. Next thing you know, escorted by the po-po, rolled out the pod, because what you did was a no-no. Back on the streets. I would dump it, fun, pull the hammer back and watch them all duck and run. Pop, pop, pop go the sound of my gun. I hope to beat my

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case . . . . And I'm praying to God, knowing that he will bring me home. Forgive me, Lord . . . . I was named after your son. . . ."

Yuba County Sheriff's Deputy Brandon Charter and Yuba County Sheriff's Detective Benjamin Martin testified as the People's gang experts. They explained that the Norteño gang and the Sureño gang are rival gangs. They described the colors, tattoos and symbols associated with the Norteño and Sureño gangs, the primary activities of the Norteño gang and the number of Norteño gang members in Yuba County. Detective Martin described crimes committed by Norteño gang members. Deputy Charter said the Norteño gang is a criminal street gang.

Varrio Linda Rifa (VLR) is a subset of the Norteño gang. Detective Martin described the symbols, hand sign, color and number of members for VLR. The experts opined that defendant was an active participant in VLR. Detective Martin's opinion was based on defendant's association with admitted gang members and prior validations. At the time he was booked in jail, defendant identified himself as a Norteño. He had Norteño-related tattoos on his chest and wrist. He associated with and committed crimes with Norteños. Detective Martin opined that Hammonds, Hernandez and Gonzales were also active Norteño gang members. Detective Martin opined that the market shooting was committed in association with Norteño gang members and benefited the Norteño gang.

Defendant said he loaned Hernandez his car on the day of the shooting and defendant stayed home that night. The next day, Hernandez told him something happened the prior evening. In addition, Hammonds said he and Gonzales shot Jonathan after following Jonathan to the market. Hammonds said Gonzales's "big homey" told them they would earn stripes if they shot Jonathan.

Defendant admitted his car was used during the shooting and that he asked someone to hide the car after the shooting. Defendant testified his family members told him deputies were looking for him for five counts of attempted murder, so he hid from

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the authorities. He testified he was a VLR Norteño gang member. According to defendant, Hammonds and Gonzales were also VLR Norteño gang members. Defendant admitted he had altercations with Jonathan multiple times before December 31, 2013, because he was a VLR Norteño while Jonathan was a Sureño. He said people who associated with Jonathan jumped defendant in late November or early December.

Defendant's sister said if defendant was at the shooting he did not do anything and was just there. But at trial she testified that defendant did not leave their home after about 3:30 p.m., and she did not see Hernandez at all that afternoon.

Defendant challenges the following accomplice testimony as uncorroborated. Hammonds testified that he fired a pistol at the market on December 31, 2013. Hernandez, Gonzales and defendant were in the car with him during the shooting. Hernandez drove defendant's car. Defendant was in the front passenger seat. Hammonds sat behind defendant and Gonzales sat behind Hernandez. Hammonds, a VLR gang member, saw Jonathan, a Sureño, flip them off. They followed a red car and Jonathan's green car to the market. Hammonds saw Susan's grandson throwing Sureño gang signs. The people in defendant's car felt disrespected and were angry. Hernandez said, "Fuck that scrap." Scrap is a derogatory term northerners called southerners. Defendant said "Fuck that fool. He called me and my big homey a bitch" and "Let's stomp this fool." Gonzales placed a .22 caliber revolver on the seat next to Hammonds. After Jonathan's car and the red car pulled into the market and stopped, defendant and Hammonds shot at the driver's side of Jonathan's car. Defendant fired a .38 caliber revolver. Hammonds fired a .22 caliber revolver. Defendant said he thought he hit his target. They shot at Jonathan because he was a Sureño and had disrespected Hammonds and his cohorts.

Gonzales testified he was with defendant, Hammonds and Hernandez at around 6:00 p.m. on December 31, 2013. They were in defendant's car. Defendant was driving. Hammonds was in the front passenger seat. Gonzales sat behind Hammonds. Hernandez

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sat next to Gonzales. They were all VLR Norteño gang members. Peach Mobile, where Gonzales lived, was in Norteño territory. They planned to look for rival gang members and go "mobbing," which meant they were going to commit a crime. They saw Jonathan, a Sureño, at Peach Mobile. They followed Jonathan to the market. Gonzales tried to talk the others out of shooting because there were kids in Jonathan's car. But Hammonds and Hernandez started shooting when Jonathan got out of his car. Gonzales put his head down and Hernandez shot above Gonzales's head. There were five or six gunshots. Hammonds and Hernandez used a .38 and a .22 caliber revolver. Hernandez used the smaller gun. Gonzales and defendant did not fire a gun. Gonzales did not provide anyone with a gun.

Hernandez testified he was with Hammonds and defendant and they picked up Gonzales...