People v. Munoz

• Decision Date: 06 September 2019
• Docket Number: B283921
• Citation: 252 Cal.Rptr.3d 456,39 Cal.App.5th 738
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicholas Anthony MUNOZ, Defendant and Appellant.

39 Cal.App.5th 738

252 Cal.Rptr.3d 456

The PEOPLE, Plaintiff and Respondent,

v.Nicholas Anthony MUNOZ, Defendant and Appellant.

B283921

Court of Appeal, Second District, Division 3, California.

Filed September 6, 2019

Certified for Partial Publication.^*

Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Yun K. Lee, Lindsay Boyd and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON, P. J.

In June 2015, defendant Nicholas Anthony Munoz and his cousins, James Rojas and Jonathan Loaiza, all gang members, were driving in Pico Rivera. Munoz and Loaiza fired shots at another car, a Yukon sport utility vehicle, in which four people were riding. One shot injured, but did not kill, one of the passengers in the Yukon. When Munoz's group sped from the shooting scene, their vehicle tumbled down an embankment, killing Loaiza. Although the evidence showed both Munoz and Loaiza fired shots at the Yukon, it did not definitively establish which one of them fired the bullet that hit the victim. The jury was instructed that Munoz could be found guilty of the attempted murders of two of the Yukon's occupants if he was the perpetrator of the crime, was a direct aider and abettor, or if he committed the target offense of shooting at an occupied motor vehicle and murder was a natural and probable consequence of that offense. The jury found the allegation Munoz fired the shot that hit one of the victims not true, but convicted him of shooting at an occupied motor vehicle and two counts of attempted premeditated murder, with firearm and gang enhancements. The trial court sentenced Munoz to two consecutive life terms for the premeditated attempted murders, plus 50 years to life for the firearm enhancements.

In an unpublished opinion issued on October 11, 2018, we affirmed Munoz's convictions but vacated his sentence and remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Penal Code section 12022.53, subdivision (h).¹ Our Supreme Court granted review and deferred further action pending disposition of People v. Mateo (rev. granted May 11, 2016, S232674). Mateo presented the question of whether, to convict an aider and abettor of attempted willful, deliberate, and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense.

Meanwhile, the Legislature enacted and the Governor approved Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015), which amended the law governing application of the natural and probable consequences doctrine as it relates to murder. The Supreme Court thereafter transferred this matter back to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill 1437.

In accordance with our Supreme Court's order, we vacate our October 11, 2018 nonpublished opinion. After considering the parties' supplemental briefs, we conclude in the published portion of this opinion that Senate Bill 1437 does not apply retroactively to nonfinal judgments on appeal. Moreover, Senate Bill 1437 does not apply to the offense of attempted murder. In the nonpublished portion, we address Munoz's contentions of instructional error and evidentiary insufficiency, and remand for resentencing on the firearm enhancements. Our analysis and disposition regarding these previously raised claims of error remain the same as in our original opinion.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Munoz was a member of the Pico Viejo criminal street gang. His cousins, codefendant James Rojas, and Rojas's brother, Jonathan Loaiza, were also Pico Viejo members. Victor Espindola, David Carrillo, and Adrian Perez were all members of the Brown Authority criminal street gang. The Pico Viejo and Brown Authority gangs were bitter enemies. Their claimed territories overlapped, leading to ongoing violence and numerous shootings between the gangs. Both gangs claimed Streamland Park in Pico Rivera as their territory.

a. People's evidence

(i) The shooting

On June 26, 2015, between 7:00 and 8:00 p.m., Espindola, Carrillo, and Perez, along with a woman named Daisy, went to Streamland Park in Espindola's mother's burgundy Yukon SUV. At the park, Carrillo spoke to some men near the baseball diamond. Espindola's group then saw a person with whom they did not "get along." Carrillo or Perez confronted the man, who ran up a nearby hill.

Espindola then drove the group away from the park in the SUV. Carrillo and Perez sat in the back seat, with Carrillo on the driver's side. Daisy was in the front passenger seat. Espindola drove northbound onto Rosemead Boulevard, in the far right lane, at 10 to 15 miles per hour, looking for the man who had run up the hill. According to Espindola, his group did not intend to scare the man, but simply wished to determine why he ran from them.

Meanwhile, Rojas was driving his girlfriend's blue Mitsubishi Galant on Rosemead Boulevard, with passengers Munoz and Loaiza. When Espindola's SUV was parallel with the park at the top of the hill, Rojas drove up to the SUV on the driver's side and Munoz and Loaiza fired shots directly at the SUV. Espindola heard six gunshots. He heard his window "pop" and a gunshot hit the car door, and then Rojas's Mitsubishi sped off. Espindola briefly continued driving on Rosemead until Carrillo said he had been hit, and lost consciousness. Espindola made a U-turn and drove Carrillo to the hospital. According to Espindola, he was surprised by the shooting and did not know why the assailants shot at his SUV. No one in Espindola's group was armed, and they did not display guns or shoot at anyone. The whole incident transpired very quickly.²

Carrillo was shot in the stomach and underwent surgery at the hospital.

(ii) The accident

Rojas drove from the shooting scene and attempted to enter the 60 Freeway at an excessive speed, causing the Mitsubishi to crash. Motorist Cynthia Arredondo observed the Mitsubishi tumble down an embankment by the Rosemead onramp, landing on its roof. Arredondo pulled over and called 911, while her boyfriend attempted to render aid. Munoz was partially pinned inside the car and was calling for help; he eventually managed to free himself. Loaiza, who had been seated in the front passenger seat, was deceased. Rojas was outside the car, talking on a cellular telephone. When Arredondo asked Rojas whether everyone was okay, he responded, " ‘I killed my brother.’ " He also said someone had been chasing them. Within three minutes, before emergency personnel or deputies arrived, a car picked Rojas up from the accident scene.

(iii) The investigation

Two firearms were found outside the Mitsubishi at the accident scene: a nine-millimeter Sig Sauer with an empty magazine, and a .380-caliber Lorcin semiautomatic pistol, loaded with a bullet in the chamber and a magazine containing five live cartridges. At the shooting scene, which was approximately a half mile from the accident scene, deputies recovered a bullet fragment, four fired nine-millimeter cartridge cases, and one fired .380-caliber cartridge case. Espindola's SUV bore five bullet holes, and five bullet fragments were recovered from the area between the vehicle's exterior and the interior panel. Forensic examination revealed that the .380-caliber cartridge case had been fired from the .380-caliber Lorcin gun found at the accident scene. Munoz's DNA matched DNA found on the .380-caliber Lorcin gun. The four expended nine-millimeter cartridge cases and four of the bullet fragments had been fired from the Sig Sauer gun.³ Two of the bullet holes in the SUV were made by nine-millimeter bullets. A Pittsburgh Pirates baseball cap that had been ejected from the Mitsubishi was on the ground at the accident scene.

Rojas's Mitsubishi bore no evidence of bullet strikes, and no evidence suggested the occupants of the SUV shot at the Mitsubishi.

(iv) Munoz's jail conversation with a confidential informant

On June 29, 2015, Munoz was placed in a jail cell with a confidential informant. Their conversation was recorded and played for the jury. Munoz stated he was a Pico Viejo gang member with the moniker "Lil Scrappy." He described the incident as follows.⁴ Some "fools," whom he believed to be Brown Authority gang members, had been chasing and attempting to shoot at or harm his cousin and fellow gang member, Loaiza. Loaiza was an "ace" and a "straight rider," that is, an active gang member known for committing crimes for the gang. Munoz and Loaiza shot at the Brown Authority gang members, with Munoz firing a .380 and Loaiza firing a nine-millimeter firearm. Munoz's gun jammed after he fired one shot. Loaiza, however "fucken served them, boom, boom, boom, boom, boom."⁵ Although it was dark, Munoz "just knew it was them, though ... I just knew it." When Munoz's group fled, the other car chased them. Munoz thought the Brown Authority gang members had guns and tried to pull them. When the accident occurred, he and Loaiza were not wearing seat belts. Munoz was injured, Loaiza died, and Rojas fled.

(v) Gang expert's testimony

Los Angeles County Sheriff's Detective Stephen Valenzuela testified as the prosecution's gang expert, regarding the Pico Viejo gang's membership, origins, territory, primary activities, symbols, "code of silence," and predicate offenses.⁶ Pico Viejo was one of the most violent gangs in the Pico Rivera area. There had been numerous shootings between the Pico Viejo and Brown Authority gangs, and incidents of violence in Streamland Park. In Valenzuela's opinion, Munoz, Loaiza, and Rojas were Pico Viejo gang members.⁷ The gang used the Pittsburgh Pirates "P" as one of its symbols, and the Pittsburgh Pirates...