People v. Gonzales

1

THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS GONZALES, Defendant and Appellant.

B313468

California Court of Appeals, Second District, Fifth Division

February 5, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA113372-01, Jacqueline H. Lewis, Judge. Affirmed in part, reversed in part and remanded with direction.

Richard D. Miggins, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN P. J.

A jury found Juan Carlos Gonzales guilty of the murder of Nicholas Pletcher with true findings as to gang and firearm enhancement allegations. Gonzales, who was 16 years old when he fatally shot Pletcher, was tried as an adult after the juvenile court found he was unfit for juvenile proceedings under Welfare &Institutions Code former section 707.^[1] In Gonzales's direct appeal, we reversed the gang enhancement finding and remanded for correction of the abstract of judgment but otherwise affirmed the judgment.

The California Supreme Court granted review. It transferred the matter to this court and directed us to vacate our previous opinion and consider the impact on Gonzales's case of Assembly Bill (AB) 2361. During the pendency of Gonzales's appeal, AB 2361 amended the requirements under section 707 for transfer of a matter from juvenile court to criminal court. (Stats. 2022, ch. 330, § 1.) Effective January 1, 2023, section 707 required the juvenile court to find by clear and convincing evidence (rather than by a preponderance of the evidence) that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court before it may transfer the case. (In re E.P. (2023) 89 Cal.App.5th 409, 416.)

The parties agree AB 2361 applies retroactively to Gonzales's case because the case is not yet final. (See People v Superior Court (Lara) (2018) 4 Cal.5th 299, 303; In re Estrada (1965) 63 Cal.2d 740.) We conditionally reverse the judgment and remand the matter for the juvenile court to conduct a new fitness hearing pursuant to the most current section 707 requirements for transfer of a case from juvenile court to criminal court. If, after the new fitness hearing, the juvenile court decides to retransfer the matter to criminal court, we give directions to the criminal court concerning further proceedings.

As to the other issues considered in our original opinion, we again reverse the gang enhancement and remand for correction of the abstract of judgment. Unlike our original opinion, we do not address appellant's ineffective assistance of counsel claim which he raised on appeal. The Supreme Court also granted review of our order denying appellant's habeas petition based on ineffective assistance of counsel. Pursuant to the high court's order, we issued an order to show cause, returnable before the Los Angeles County Superior Court on that issue. The ineffective assistance of counsel claim is currently pending in that court. Accordingly, for purposes of the present appeal only, appellant's ineffective assistance of counsel claim is moot.

FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2016, Gonzales fatally shot the victim four times in an alley in Pomona. The District Attorney charged Gonzales with murder. (Pen. Code, § 187, subd. (a).) It was further alleged that Gonzales personally used and discharged a handgun (Pen. Code, § 12022.53, subds. (b), (c), (d)) that the offense was committed for the benefit of a criminal street gang, and that Gonzales was an active participant in the gang (Pen. Code, §§ 186.22, subd. (b)(1)(C) and 190.2, subd. (a)(22)).

Gonzales argued at trial that he acted in self-defense because the victim had previously threatened him and held a gun to his head twice. The prosecution's theory at trial was that Gonzales, a member of the 18th Street gang, shot the victim because the 18th Street gang wanted to control the sale of narcotics in that area of Pomona. The victim was a member of a tagging crew called HA or "High Artists," which claimed that territory and sold marijuana there. The mother of the victim's children testified the victim appeared nervous and scared in the month before his death.

The People presented the following evidence:

1. Gonzales's Confession

On August 25, 2016, Gonzales was arrested and interviewed by police.^[2] After initially denying any involvement in the shooting, Gonzales confessed: "I got popped out twice by him .... With a gun. On my faith . . . he took my shit twice, mister. Uh, this how it went down. I pass through the park. I was walking and then, all of a sudden, I go - I go through this, and I see him. And he starts banging on me, like, 'Oh, you ain't from nowhere. You're a little bitch.' This and this. And I was mad, mister. I did have the burner. I was mad. Just - I couldn't do nothing about it. [¶] And then I was posted right there in the alley, and he comes up to me, like, 'Oh, you're a bitch. What's up? Give me - start giving me all your shit.' Like, he tried to tax me, and I got scared of him, you know. Straight up. I got scared. Pulled it out, mister. Started popping. Straight up."

Gonzales explained the victim had twice previously put a gun to his head and he did not want to go through that again. On the day of the shooting, Gonzales believed the victim was reaching for a gun because he saw the victim reaching in his pocket.^[3] When the victim walked up close to Gonzales, Gonzales "just got scared and just popped it out." He admitted he shot the victim three or four times. He also stated "Richard" was with him.

2. Richard Guerrero's Testimony

Richard Guerrero had known Gonzales since middle school and knew Gonzales's street name was Polar. Guerrero testified that Gonzales told him he did not like the victim. On the day of the shooting, Guerrero was smoking marijuana with a friend in a park when the two of them heard the sound of gunfire. Guerrero and his friend immediately got up. Guerrero was curious to see what happened, so he ran towards the sound while his friend left the park.^[4]

Guerrero came upon Gonzales and the victim in a nearby alley. Guerrero heard the victim say to someone on the phone, "Danny, come as quick as possible and bring the burner." Guerrero understood "burner" to mean a gun. Guerrero then saw Gonzales shoot the victim twice a few seconds after that phone call. The victim screamed and fell to the ground. The gun then appeared to jam. Gonzales kicked the victim. After fixing the gun, Gonzales approached within inches of the victim and shot him in the head. Afterwards, Gonzales said to the victim, "18, bitch."

Surveillance video showed Gonzales and Guerrero walking away from the alley shortly after the shooting. They hid in a vacant house for a few minutes when they thought a white van was following them. Gonzales asked Guerrero to hold and hide the gun for him, but Guerrero refused. They ended up at Gonzales's house, where they smoked marijuana for two hours. Gonzales told Guerrero he shot the victim because "it was business." When pressed by the prosecutor about what that meant, Guerrero said, "Just business. Personal business." The prosecutor then asked, "Gang business?" And Guerrero replied, "that's what I thought."

Guerrero explained that he sometimes bought marijuana from Gonzales. Although he did not know Gonzales sold drugs for the 18th Street gang, he knew Gonzales associated with them. He also knew the 18th Street gang wanted to control drug sales in that area of Pomona.

3. Ballistics Evidence

The medical examiner testified the victim had four gunshot wounds: one to the back of his head, which was fatal; a second to the right side of his abdomen, which was also fatal; a third to his left hip region, which was potentially fatal; and a fourth to the area near his torso, abdomen, neck, and right arm, which caused superficial non-fatal injuries.

Police found seven .380-caliber cartridge casings; four were recovered near the victim's body and three were located further away, near the mouth of the alley. Three bullets or bullet fragments were also recovered at the scene of the crime. In a search of Gonzales's home four days after the killing, police recovered inside a dresser drawer a .380 semi-automatic handgun manufactured by Lorcin, and an empty magazine underneath the mattress. The firearms expert stated that four of the seven cartridge casings she examined from the crime scene were fired from the Lorcin .380 handgun.

4. Facebook Evidence

Police obtained a search warrant to access Gonzales's Facebook account. They recovered a photograph, "authored" by Gonzales, of a face with the number "18" under the left eye. In a Facebook message dated August 22, 2016, someone with the username "Tony Montana" messaged Gonzales, "LOL, finally Dazer [victim Fletcher] is dead." Gonzales replied, "Ha, ha, ha, ha." Later, Gonzales messaged Montana, "Have you heard?" Montana responded, "Yep. I heard. So who is next target to get smoke?"^[5] Gonzales responded, "IDK."^[6] The next day, Montana messaged, "Yo. Someone snitching on you guys. Keep low key." To this, Gonzales stated, "What did we do?" and "I want to know who smoked Dazer."

5. Gang Evidence

Los Angeles Police Department Detective Arthur Castro testified he was assigned to the FBI gang task force to monitor the 18th Street gang. Castro provided a summary of the 18th Street gang's history, its territory, and its cliques and subsets.

He described the gang tattoos as including an "18," a big "E," and "13." He identified the 18th Street...