People v. Rocha, B269696

Decision Date21 November 2017
Docket NumberB269696
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ELDA NALLELI ROCHA, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA415335)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed.

Marvin E. Vallejo for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Elda Rocha drove her boyfriend Jherome Higuera, a gang member, to an apartment building where he opened fire on a group of teenagers, killing one of them and severely injuring another. Rocha waited for Higuera while he committed the crimes and drove him away after the shooting.

A jury convicted Rocha of one count of second degree murder and three counts of attempted murder. The jury also found true gang-related firearms allegations under Penal Code section 12022.53, subdivisions (d) and (e)(1).1

Rocha argues that there was insufficient evidence she aided and abetted the crimes, that there was insufficient evidence to sustain the gang-related firearm enhancements, and that her counsel was ineffective for failing to call a gang expert. She also argues the trial court erred in imposing a term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1), on each of the attempted murder convictions for the two individuals who did not sustain any injuries. We affirm.

FACTUAL AND PROCEDURAL HISTORY
A. DIA

DIA, which stands for "Down in Action," is a criminal street gang that claims territory in an area west of downtown Los Angeles. Members of DIA vandalize property, spray paint the name of the gang in the neighborhoods the gang claims as its territory, carry weapons, and commit robberies and assaults with deadly weapons.

Higuera was a member of DIA. He had several DIA tattoos, including the word "Diablo," which was both his gang moniker and the name of a subset, or clique, of DIA.

Rocha began dating Higuera in June 2012, and she knew he was a member of DIA. On one occasion in early August 2012, Rocha, at Higuera's request, picked up another DIA gang member who had been shot by a rival gang member and drove with Higuera to the scene of the shooting so Higuera could retaliate. Rocha knew that when Higuera told her, "We're going to go driving," Higuera meant he and his fellow gang members "were going to go drive around and either tag or, according to them, look for somebody to shoot up."

B. Retaliation

On August 17, 2012 Higuera received a call from William Vasquez, whom Rocha knew as a leader of DIA who had guns in his house. Higuera told Rocha, "We've got something to do. . . . We've got to go to [Vasquez]. [Vasquez] is calling me . . . . I need your truck." When Rocha said Higuera could use her truck, Higuera said, "I need you there."

Higuera told Rocha to drive to Vasquez's house, where they met a13-year-old boy named Art T. and his friend J.G. Inside Vasquez's house, Rocha saw pictures of dead DIA gang members. She heard Art T. say that he wanted to join the gang and that some people from another gang had made fun of him. Rocha told Higuera and Vasquez that, while the two men were "past the age of 15" and knew what they were doing, it was "kind of dumb" for Higuera and Vasquez to involve kids like Art T. and J.G. because they were "little kids" who "don't even know" and "just want to be cool." Rocha said to Higuera and Vasquez, "You guys are always talking about shooting people and . . . the stuff you guys have done . . . . Look at these little kids. Like, don't you think, if youguys ever take them and do something like the stuff I hear you guys say you guys do, don't you think that they're going to be traumatized, and maybe tell on you guys or something?" Vasquez told Rocha to "shut up" and to "mind [her] own business."

Art T. and J.G. got into the back seat of Rocha's car, and Higuera sat in the front passenger seat. Higuera and Vasquez told Rocha to start driving. Art T. told Higuera "a group of guys" had approached him and "beat him up." Higuera took a gun from a black box and said, "This has our backs." Higuera also took a bag of bullets from the glove compartment.

Higuera asked Art T. where he had been beaten up, and Art T. gave Rocha directions. When Rocha arrived at the location, Higuera said to Art T., "Let's go get these fuckers." Higuera told Rocha not to turn the engine off and to "[w]ait here for us." Rocha kept the engine running and said, "Okay, I'll be waiting here."

C. Shots

Higuera, Art T., and J.G. got out of Rocha's car and began walking towards an apartment building. On the porch of the apartment building were four 17-year-olds socializing, "chilling and talking, drinking, playing music." The group consisted of Jonathan Lopez, Luis Rufino, Edwin Cruz, and Cruz's girlfriend, Kimberly Duarte. The three males were part of a tagging crew called "SCK" or "So Crazy Klan."

As Higuera approached the group of teenagers, Art T. and J.G. went to an alley next to the apartment building. Higuera walked up to the four teenagers and asked, "Where you from?" The three young men on the porch replied, "SCK." Higuera asked, "Where's your little homie, Kaos?" Cruz replied, "Oh, that's little homie." Higuera said, "I'm from Diablos" and "I'm from DIA." One of the teenagers said, "What the fuck is DIA?"Higuera said, "I'm going to show you what DIA means," and he took out a gun and started shooting at the group.

Duarte, who had been sitting on Cruz's lap, fell to the ground and covered her head. Lopez ran to the door of the apartment building, which "luckily . . . was open," ran inside, and asked someone to call the police. When Lopez came back out to the porch, he found Cruz on the floor, bleeding from multiple gunshot wounds. Cruz did not survive. Rufino was shot twice in both legs, and one of the bullets shattered his testicle. Lopez and Duarte escaped uninjured.

D. Getaway

After Higuera shot at the group on the porch, he, Art T., and J.G. ran back to Rocha's car. As they approached the car, Rocha yelled, "Hurry up, hurry up."

Rocha drove them back to Vasquez's house. In the car, Art T. expressed concern he was going to get in trouble with his mother because it was late and she did not know where he was. Rocha spoke with Art T.'s mother on the phone and pretended to be J.G.'s mother so that Art T.'s mother would not find out Art T. had been involved in the shooting. Rocha dropped Art T. and J.G. off at Vasquez's house while Higuera remained in the car.

E. More DIA

When Art T. and J.G. got out of Rocha's car, another member of DIA got into the back seat of the car. Higuera told Rocha to "just drive" around. As Rocha drove, Higuera and the other gang member saw a man from a rival gang unrelated to the shooting in this case. Higuera and the other DIA gang member got out of Rocha's car, and the other DIA gang member "started shooting like crazy." The two men got back into Rocha's car, andHiguera told Rocha, "Drive, drive, drive." Rocha drove Higuera and the other gang member back to Vasquez's house.

Approximately three months later, police found Rocha in her car with the engine running near a location where Higuera had been spray painting DIA graffiti. The police also found an acrylic paint marker in her car.

F. Charges

The People charged Rocha with one count of murder and three counts of attempted murder on the theory she aided and abetted the crimes. The People alleged Rocha committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1). The People also alleged a principal in the commission of the crimes personally and intentionally discharged a firearm causing death to Cruz, within the meaning of section 12022.53, subdivisions (d) and (e)(1).

G. Expert Testimony

Detective Scott Frus, the prosecution's gang expert, testified that "respect to a gang member is everything" and that a gang member earns respect within the gang by committing violent crimes. By committing violent crimes, gang members create fear in the community and discourage witnesses from testifying, which enables members of the gang to commit further crimes with impunity. Women can become involved in gang activity without becoming members of the gang by helping their boyfriends who are members of the gang commit crimes. Gangs like DIA use women in a "support role" to serve as lookouts andto carry weapons, ammunition, and drugs. Gang members believe police officers are less likely to search women.

Based on a hypothetical with facts similar to those in this case, Frus testified the shooting was committed to benefit a criminal street gang because it spread fear in the community and bolstered the gang's esteem and reputation. Frus testified the driver's actions were in association with the gang because she drove a car carrying the gang members who committed the shooting and because she stored the ammunition used in the crime in the glove compartment of her car.

H. Conviction

The jury convicted Rocha of one count of second degree murder and three counts of attempted murder. The jury also found true the gang-related firearms allegations under section 12022.53, subdivisions (d) and (e)(1), for each count. The trial court sentenced Rocha to 40 years to life for the murder...

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