People v. Ayala

THE PEOPLE, Plaintiff and Respondent, v. LEONEL AYALA, Defendant and Appellant.

B291438

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

November 14, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA084498)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Terrell, Judge. Modified and, as so modified, affirmed.

Maxine Weksler, 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, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Defendant and appellant Leonel Ayala appeals his convictions for first degree murder with a firearm and assault with a semiautomatic firearm, as well as gang enhancements, which applied to both offenses. Ayala raises claims of: (1) insufficiency of evidence to support deliberate and premeditated murder and the gang enhancement, (2) error in admitting gang expert testimony, (3) prosecutorial misconduct based on misstatements of law, (4) error for refusing to strike the firearm enhancement, and (5) sentencing error on the assault with a semiautomatic firearm conviction.

We reject each of Ayala's challenges to his convictions. As to count 1, we order the gang enhancement stricken and the firearm enhancements under section 12022.53, subdivisions (b) and (c), imposed and stayed. As to count 4, we order the abstract of judgment amended to reflect the punishment stricken for the gang enhancement. In all other respects, we affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

A. Assault of Fresly C. and Murder of Jonathan V.¹

On September 13, 2015, Fresly C. was walking near the intersection of Van Nuys Boulevard and Haddon Avenue in Pacoima. A white Dodge Charger with a black stripe pulled up to him. The rear passenger pointed a gun out of the window, and asked, "Where are you from?" Fresly C. did not respond. He kept his head down and continued to walk. The Charger traveled at10 to 15 miles per hour, and never slowed down during the contact. It drove out of Fresly C.'s view.

At about noon, Urvano S.C. and his five-year-old grandson were visiting Jose S. on Pinney Street, near Amboy Avenue. Urvano S.C. and Jose S. heard gunshots. At the driveway next to Jose S.'s house, Jacob Ochoa shot Jonathan V. Ochoa shot Jonathan V. from three feet away.

As the shots were fired, Urvano S.C.'s grandson started crying and yelled, "Papa." Urvano S.C. climbed on top of his grandson and covered him. A bullet struck Urvano S.C. on his buttocks. After the shooting, Ochoa escaped in a white Dodge Charger.

After his contact with the white Dodge Charger, Fresly C. went to Pinney Street and saw Jonathan V. lying on the ground. Fresly C. knew Jonathan V. as Spider from the Latin Times Pacoima gang. Jonathan V. had tattoos on his arms that depicted "LTP." Jonathan V. died as a result of multiple gunshot wounds.

Later in the evening, the police stopped Ayala in a white Dodge Charger. Fresly C. identified the Charger as the car that approached him.

B. Interview of Ayala

Los Angeles Police Department Detective Gabriel Bucknell and Officer Thomas Kimrey interviewed Ayala about the murder on Haddon Avenue and Pinney Street. For nearly an hour, Ayala denied involvement. Bucknell confronted Ayala with tracking evidence from a GPS monitor which he wore on his ankle. Ayala initially said that he was visiting his grandmother. But the GPS monitor did not place Ayala at the location he provided for his grandmother's home.

Ayala ultimately admitted his involvement in the murder. He first claimed membership in the Project Boys gang. His nickname was Flaco. Ayala admitted that he drove the white Dodge Charger to Haddon Avenue and Pinney Street. He knew that the area was the territory of the Pacoima South Side Locos, which was a rival gang. He went there with Ochoa, who was a fellow Project Boys gang member. On their way to the location, Ayala discovered that Ochoa was armed with a nine-millimeter handgun.

Ayala had known Ochoa for about one month. He knew that Ochoa was a new gang member, who was willing to "put in work" for the gang.² On the day of the murder, Ayala and Ochoa went to the rival gang territory to "hit up" people.³

Ayala described how the incident unfolded when he arrived with Ochoa. When they reached Amboy Avenue, Ochoa told Ayala to stop driving. Ochoa exited the car. Ayala drove slowly behind him. Ochoa walked up to the victim, and shot him. Ayala began backing up the car. Ochoa returned to the car and entered the back seat. They drove away on Amboy Avenue.

Ayala repeatedly claimed that he did not know Ochoa would shoot anyone. However, Ayala also conceded that he could have stopped Ochoa from shooting but failed to do so.

Bucknell informed Ayala that he was going to jail for his involvement in the murder. Ayala offered to call Ochoa to have him admit to the shooting. He called Ochoa. Ayala told Ochoa that he was at the police station and had been interviewed. Ayala complained that Ochoa hit a sixty-year-old man and a six-year-old child. He told Ochoa that he should have aimed better. Ochoa admitted that he did not see the "old man" or the child.

C. Gang Evidence

Los Angeles Police Department Officer Tomas Salazar testified as a gang expert. He was assigned to the gang enforcement detail of the Foothill Division, where he primarily monitored the Project Boys gang.

Established in the mid-1980's, the Project Boys gang consisted of 190 documented members. Its territory centered around the San Fernando Gardens public housing community, also known as "the Projects." The primary activities of the Project Boys included challenging persons to fights, vandalisms, possession of narcotics, possession of firearms, assaults with deadly weapons, attempted murders, and murders.

Salazar was familiar with Ayala and Ochoa. He believed both to be Project Boys gang members. Ayala had multiple tattoos which showed membership in the Project Boys.

The rival gangs of the Project Boys included the Van Nuys Boys, Pacoima South Side Locos, Latin Times Pacoima, Cayuga Street, Knock Knock Boys, and San Fer. Of these rival gangs, the Pacoima South Side Locos and the Latin Times Pacoima gangs claimed the area of Haddon Avenue and Pinney Street.

Salazar also discussed the on-going feud between the Project Boys and the Pacoima South Side Locos. He described a previous shooting incident by gang members from the Pacoima South Side Locos at the San Fernando Gardens.

Salazar explained features of gang culture, including the importance of instilling fear in the community, and obtaining respect from other gang members and persons in the community. He also discussed how members "put in work" for the gang by committing crimes which generate income or respect for the gang.

The prosecutor asked Salazar to answer a hypothetical question derived from the evidence for the assault with a semiautomatic firearm against Fresly C. and the murder of Jonathan V. Salazar opined that both crimes were committed for the benefit of, and in association with, a gang. He reasoned that committing the crimes benefitted the gang by challenging persons in a rival gang's territory. The crimes would also elevate the status of both the shooter and the driver. He further explained that the two gang members acted in concert to commit the crimes. Salazar noted that in walk-up shootings—as opposed to drive-by shootings—the shooter attacks his or her intended target at a closer range, providing greater accuracy.

II. Procedure

The jury convicted Ayala of first degree murder of Jonathan V. (Pen. Code, § 187, subd. (a)⁴; count 1) and assault with a semiautomatic firearm of Fresly C. (§ 245, subd. (b); count 4).⁵ The jury found true the allegations that Ayala was vicariouslyliable for the intentional discharge of a firearm, causing Jonathan V.'s death (§ 12022.53, subds. (d), (e)(1)), as well as the intentional discharge and use of a firearm in the commission of the murder (§ 12022.53, subds. (b), (c), (e)(1)). It also found that Ayala committed the murder and the assault with a semiautomatic firearm for the benefit of, at the direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury acquitted Ayala of the three counts of attempted murder (§ 664, 187, subd. (a); counts 2, 3, 5), involving Jose S. and Urvano S.C. and his grandson.

The trial court sentenced Ayala to 25 years to life for the murder conviction and a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1).⁶ It imposed a consecutive three-year term for the assault with a semiautomatic firearm conviction.⁷ The total aggregate term was 50 years to life, plus three years in state prison.

DISCUSSION

I. Sufficiency of the Evidence for Deliberate and Premeditated Murder

Ayala argues that the evidence was insufficient to prove that he was a direct aider and abettor of murder and that he acted with premeditation and deliberation. As we will discuss, we conclude substantial evidence supported first degree murder under these theories, as well as the theory of uncharged conspiracy, based on Ayala driving Ochoa to and from rival gang territory to kill a rival gang member.

Our standard of review is well settled. For a challenge of the sufficiency of the evidence, the record must contain "substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of...