People v. Lopez

73 Cal.App.5th 327

288 Cal.Rptr.3d 463

The PEOPLE, Plaintiff and Respondent,

v.Edgar A. LOPEZ, Defendant and Appellant.

B301050

Court of Appeal, Second District, Division 8, California.

Filed December 29, 2021

Brad Kaiserman, Van Nuys, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

STRATTON, J.

Edgar Lopez was convicted of the first degree murders of Steven Robinson, Aric Lexing, and Scott Grant ( Pen. Code, § 187 )¹ and sale of methamphetamine ( Health & Saf. Code, § 11379, subd. (a) ), with associated enhancements and special circumstances found true. On appeal, Lopez contends: (1) insufficient evidence supported the jury's finding on one firearm enhancement allegation; (2) the trial court should have given his requested jury instruction on the mental state required for aiding and abetting a murder; (3) the court erred in admitting evidence pertaining to a traffic stop of the car in which Lopez was riding shortly after the Lexing and Grant murders; (4) the court erred in excluding third party culpability evidence; and (5) the cumulative effect of the errors deprived him of due process of law and a fair trial. In supplemental briefing, Lopez argues that certain enhancement and special circumstance findings must be vacated and the matter remanded for a limited retrial due to statutory changes made by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699). We affirm the convictions, but vacate the gang-related special circumstance and enhancement findings and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Robinson was shot to death on March 9, 2007; Grant and Lexing were shot to death on July 20, 2007. The killings took place near the territory of the 18th Street gang, and the bullets that struck Robinson and Grant were fired from the same handgun. The crimes went unsolved for several years, until an FBI informant within the 18th Street gang recorded a conversation involving two high level members, Lopez and Gustavo Guzman. Lopez and Guzman reminisced about two shootings they had carried out, and they provided enough detail about the crimes and subsequent events to permit the Los Angeles Police Department to determine they were discussing the killings of Robinson, Grant, and Lexing.

Lopez was charged with the murders of Robinson (count 1), Grant (count 2), and Lexing (count 3), with multiple firearm enhancements and a gang enhancement alleged for each murder charge ( §§ 187, 186.22, subd. (b)(1)(C), 12022.53, subds. (b) - (e)(1) ). Two special circumstances were alleged: (1) Lopez intentionally committed each murder while he was an active participant in a criminal street gang and the murder was committed to further the activities of the gang ( § 190.2, subd. (a)(22) ), and (2) Lopez was convicted of multiple murders ( § 190.2, subd. (a)(3) ). Lopez was also charged with two counts of selling methamphetamine, also with a gang enhancement allegation ( § 186.22, subd. (b)(1)(A), Health & Saf. Code, § 11379, subd. (a) ) (counts 4 and 5); one count was later dismissed.

The jury found Lopez guilty of three first degree murders and the sale of methamphetamine. For all three murders, the jury found true the special allegation that a principal personally and intentionally discharged a firearm, causing the victim great bodily injury or death ( § 12022.53, subds. (d) & (e)(1) ); in the Lexing and Scott murders, the jury also found true allegations that Lopez personally and intentionally discharged a firearm, which caused Lexing and Scott great bodily injury or death ( § 12022.53, subd. (d) ). The jury found all four offenses were committed for the benefit of a criminal street gang. Finally, the jury found the special circumstances allegations true.

The prosecution sought the death penalty, but the jury selected a sentence of life in prison without the possibility of parole. For each of the three murders, Lopez was sentenced to life in prison without the possibility of parole, plus a sentence of 25 years to life for the firearms enhancement in section 12022.53, subdivision (d). Additionally, the court imposed the mid-term of three years for the drug offense, plus three years for the gang enhancement. The court designated the sentences to run consecutively. Lopez appeals.

DISCUSSION

I. Lexing Murder: Firearm Enhancement Finding

Section 12022.53, subdivision (d) provides for a consecutive sentence enhancement of 25 years to life when the defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury ... or death" during the commission of the offense. Lopez contests the jury's true finding that he personally discharged a firearm, causing Lexing's death. He argues the jury's finding under section 12022.53, subdivision (d) must be vacated because there was no evidence to support the jury's conclusion that he, as opposed to Guzman, personally fired the shot that struck and killed Lexing.

Sufficient evidence supports the jury's finding. Lexing and Grant were killed in a single incident. Grant was found dead in the front passenger seat of Lexing's car, with his seat belt still on. The driver's side door was open and the driver's seat empty; Lexing was discovered lying face-down in the gutter nearby. Grant had been shot multiple times with both .40- and .45-caliber bullets, suggesting he was shot with two separate firearms. The injuries to Grant's body were consistent with him having been shot through both the passenger's side window of the car and the rear of the driver's side of the car. Also indicating there were two shooters were the locations of casings recovered from the scene: .40-caliber casings were found in front and to the right of the car, and .45-caliber casings were located to the left and to the back of the car. Lexing had been shot once in the back as he fled from the car.

As both Lopez and the People acknowledge, section 12022.53, subdivision (d) requires proximate causation, not actual causation. Therefore, the validity of the jury's finding rests not on whether Lopez fired the shot that actually killed Lexing, but on whether Lopez's personal and intentional discharge of a firearm proximately caused great bodily injury or death. A proximate cause of great bodily injury " ‘is an act ... that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act ... the great bodily injury or death and without which the great bodily injury or death would not have occurred.’ " ( People v. Bland (2002) 28 Cal.4th 313, 335, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Consistent with this authority, the jury was instructed with CALJIC No. 17.19.5, defining a proximate cause of death as "an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death and without which the death would not have occurred."

The evidence was sufficient to permit the jury to conclude that regardless of which defendant fired the shot that killed Lexing, Lopez personally and intentionally discharged a firearm, proximately causing Lexing's death. The act that set in motion the chain of events resulting in Lexing's death was the act, committed by both defendants, of firing a flurry of gunfire into the car in which Lexing and Grant were seated: Lopez and Guzman, standing on opposite sides of the car, both fired repeatedly into the car, killing Grant and prompting Lexing to flee, only to be shot and killed as he ran away.

Lopez argues this case is like People v. Botello (2010) 183 Cal.App.4th 1014, 107 Cal.Rptr.3d 698, in which the People conceded a section 12022.53, subdivision (d) enhancement should be vacated because one identical twin discharged a handgun and the other merely drove the vehicle, and there was no evidence to indicate which twin was the actual shooter. Here, in contrast to Botello , both Lopez and Guzman fired into the vehicle where Lexing and Grant were sitting, setting in motion the chain of events leading to the deaths of both victims. Botello is inapposite here, and the jury's finding was supported by sufficient evidence.

II. Robinson and Lexing Murders: Jury Instruction on Aiding and Abetting

A defendant aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, or instigate the perpetrator's commission of that crime. ( People v. Chiu (2014) 59 Cal.4th 155, 166–167, 172 Cal.Rptr.3d 438, 325 P.3d 972 [a conviction for first degree premeditated murder on direct aiding and abetting principles requires "that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission"], superseded by statute on another ground as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3, 281 Cal.Rptr.3d 521, 491 P.3d 309 ; People v. Hamilton (1989) 48 Cal.3d 1142, 1169–1170, 259 Cal.Rptr. 701, 774 P.2d 730 ["to be an aider and abettor as a matter of law an individual must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense’ "].)

The jury was thoroughly instructed on principles of aider and abettor liability. The court gave CALJIC No. 3.01 : "A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or...