People v. Molina

THE PEOPLE, Plaintiff and Respondent, v. DAVID MOLINA, Defendant and Appellant.

B295701

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

April 30, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA143107)

APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa P. Magno, Judge. Affirmed as modified.

Stephen M. Vasil, 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, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * A jury convicted David Molina (defendant) of the attempted premeditated murder of a person he believed to be a rival gang member. On appeal, defendant argues that his conviction must be reversed because (1) one of the legal theories that supports his conviction is invalid, (2) the jury instructions were defective, and (3) there was insufficient evidence. His arguments lack merit. We therefore affirm, but order that defendant's date of birth be corrected in various court documents.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

At just past noon on a Tuesday in January 2017, defendant, Jerome Hooks (Hooks) and Stephen Cuevas (Cuevas) accosted a man exiting a liquor store.

The encounter took place in territory controlled by the 89 Family Swans street gang. Defendant, Hooks, and Cuevas are all members of that gang. Cuevas is defendant's cousin, and is defendant's protégé in the gang; to reflect this relationship, defendant's moniker is "Big TK Bandit" and Cuevas's is "Lil TK Bandit." During the incident, Cuevas was wearing a ballcap with a logo and in colors associated with the 89 Family Swans gang.

The incident in January 2017 started when defendant spotted a man he believed to be a member of a rival gang (the 7-Trey Crips) leaving a liquor store located within but at the edge of 89 Family Swans territory. Defendant and Hooks started to follow the man as he walked down the sidewalk toward his parked car. Cuevas joined defendant and Hooks in their approach momentarily, but then ducked into the liquor store and emerged holding his hand to his waistband and with the hood of his hoodie up.

As defendant, Hooks, and Cuevas caught up to the man, defendant started talking to the man. At first, the man ignored them but eventually turned to face them.

Defendant then stepped forward and squared off with the man as Hooks and Cuevas fanned out on either side of defendant in a semicircle around the man. Seconds later, defendant held out his arm to point at the man and Cuevas immediately thereafter pulled a revolver from his waistband and took aim at the man.

Upon seeing the gun, the man lunged toward Cuevas but defendant pulled him away. Cuevas fired a shot but the shot missed the man and shattered the glass door of a marijuana dispensary behind the melee. The man then grabbed defendant, and the two engaged in a pushing and shoving match with the man trying to keep defendant as a "shield" between himself and Cuevas.

Hooks then stepped forward and punched the man in the face. The man released defendant and then started to run down the street. As the man fled, Cuevas fired off a second shot. That shot also missed.

Defendant, Hooks, and Cuevas then ran away.

The following day, defendant was carrying a gun identical in "make and model" to the gun Cuevas used the day before; defendant was also with Hooks.

II. Procedural Background

A. The charge and allegations

The People charged defendant with a single count of willful, deliberate, and premeditated attempted murder (Pen. Code,§§ 187, subd. (a), 664, subd. (a)).¹ The People further alleged that (1) the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)), and (2) a principal in the crime had personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)).

B. Evidence at trial

The primary evidence at trial was surveillance video from the marijuana dispensary that showed the incident unfold from a variety of angles. The video had no audio track. An officer who had reviewed the video "several times" walked the jury through what was on the video, and offered still photographs from the video.

A gang expert familiar with the 89 Family Swans gang opined on street gang culture. Among other things, the expert opined that (1) gangs are territorial and place great "importance" on "defend[ing]" their territory "from encroachment" by rival gang members; (2) "gangs are all about status and respect"; (3) a rival gang member's presence in another gang's territory is a "sign of disrespect"; (4) when members of rival gangs confront one another, there is a "high" "probability [of] violence," ranging from a "physical fight" to gunplay, such that "hav[ing] a gun" is an "absolute[] necess[ity]" if gang members are going "to confront a rival gang member"; and (5) gang members who are "going out to commit a crime together" "know [which of them] has a gun."

Because Cuevas was the shooter, the trial court instructed the jury that defendant could be convicted of the attempted premeditated murder on one of two theories: (1) defendant aidedand abetted Cuevas in the crime of attempted murder (the direct aiding and abetting theory), or (2) defendant engaged in the crime of "fighting or challenging someone to fight," Cuevas aided and abetted defendant in that fight or challenge, and the attempted murder committed by Cuevas was a "natural and probable consequence" of that fight or challenge (the natural and probable consequences theory).

The jury found defendant guilty of attempted premeditated murder, and found true the gang and firearm allegations.

C. Posttrial motions, sentencing and appeal

Defendant moved for a new trial on the ground that Senate Bill 1437 (2017-2018 Reg. Sess. (S.B. 1437)) retroactively abolished liability for attempted murder under a natural and probable consequences theory. The trial court denied the motion.

The trial court sentenced defendant to prison for seven years to life. In imposing this sentence, the court struck the gang enhancement and imposed but stayed the 20-year firearm enhancement.

Defendant filed this timely appeal.

DISCUSSION

Defendant raises a plethora of challenges to his conviction, and those challenges can be grouped into three buckets—those challenging the legal validity of his conviction, those challenging the jury instructions, and those challenging the sufficiency of the evidence. He also challenges the accuracy of his date of birth recorded in several court documents.

I. Legal Validity of the Conviction

Defendant argues that his conviction of attempted premeditated murder is legally invalid. He offers a two-step argument: (1) the jury instructions precluded the jury fromfinding him guilty under a direct aiding and abetting theory, (2) he cannot be held liable for attempted premeditated murder on a natural and probable consequences theory because of (a) our Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), superseded by statute as stated in People v. Gentile (2020) 10 Cal.5th 830, 849, and (b) S.B. 1437. The validity of a legal theory of liability as well as jury instructions are questions of law we review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)

We reject the first step of defendant's argument.

Although the jury was instructed on both the direct aiding and abetting theory and the natural and probable consequences theory, defendant contends that the instructions precluded the jury from finding him guilty on a direct aiding and abetting theory because (1) the introductory sentence of the natural and probable consequences theory instruction stated, "Before you may decide whether the defendant is guilty of attempted murder, you must decide whether he is guilty of fighting or challenging someone to fight" (italics added), and the seemingly absolute nature of this command precluded the jury from also considering whether defendant directly aided and abetted Cuevas in committing attempted premeditated murder, and (2) the verdict form used the words "malice aforethought" when no jury instruction used those words.

Defendant's arguments lack merit.

To us, the highlighted language rendered the jury instructions confusing, not wrong on their face.² On the onehand, the highlighted language seemed to indicate that a finding that defendant was guilty of fighting or challenging someone to fight—a prerequisite only to the natural and probable consequences theory—was something the jury must decide before rendering its verdict for attempted murder on any theory. On the other hand, the highlighted language was part of the jury instruction clearly labeled as defining the "natural and probable consequences" theory, which was separate from the instruction defining the direct "aiding and abetting" theory. Where, as here, the jury instructions "as a whole" are ambiguous, we ask "whether there is a '"reasonable likelihood that the jury has applied the challenged instruction"'" in the way the defendant asserts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) We conclude that there is no reasonable likelihood that the jury read the highlighted phrase from the natural and probable consequences theory instruction to entirely negate the direct aiding and abetting theory instruction. The jury was given one instruction for each theory, and those theories were clearly labeled as distinct. What is more, both the...