People v. Rojas

319 Cal.Rptr.3d 701

The PEOPLE, Plaintiff and Respondent,

v.Fernando ROJAS, Defendant and Appellant.

F080361

Court of Appeal, Fifth District.

Filed March 27, 2024

Certified for Partial Publication.^*

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. (Kern Super. Ct. No. BF171239B)

Sharon Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, Acting P. J.

Defendant Fernando Rojas’s fellow gang member shot and killed an individual with whom defendant had an altercation moments prior. Defendant was convicted of first degree murder with a gang special circumstance finding; and active gang participation.

The Attorney General concedes that, as a result of the passage of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), defendant’s conviction for active gang participation and several enhancements must be reversed. We accept that concession.

We reject defendant’s remaining contentions, including a Batson/Wheeler¹ claim and a challenge to his gang-murder special circumstance.

As a result, we reverse the active gang participation conviction and several enhancements, but otherwise affirm.

BACKGROUND

In an amended information filed August 14, 2019, the Kern County District Attorney charged defendant Fernando Rojas with premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 189),² active gang participation (count 2; § 186.22, subd. (a)), and possession of a firearm as a felon (count 4; § 29800, subd. (a)(1).)³ The information further alleged: Defendant committed the murder for the benefit of, at the direction of, or in association with the Varrio Chico Lamont criminal street gang; firearm enhancements to the murder count under sections 12022, subdivision (d) and section 12022.53, subdivisions (d) and (e)(1); an out-on-bail enhancement (§ 12022.1); a prior juvenile adjudication strike (§ 667, subds. (c)–(j), § 1170.12, subds. (a)–(e)); and three prior prison term enhancements (§ 667.5, subd. (b)).

The court granted defendant’s motion for acquittal on count 4 (§ 1118.1). A jury convicted defendant on counts 1 and 2. The jury also found true the gang enhancement (§ 186.22, subd. (b)(1)), gang-murder special circumstance (§ 190.2, subd. (a)(22)), and firearm enhancements under sections 12022.53, subdivisions (d) & (e)(1) and 12022, subdivision (d) as to count 1.

The court granted a prosecution motion to dismiss the on-bail enhancement and prior conviction enhancements. The court found true the prior strike adjudication allegation.

The court sentenced defendant to life in prison without the possibility of parole on count 1, plus 25 years to life (§ 12022.53, subds. (d) & (e)(1)), plus three years (§ 12022, subd. (d)), plus a stayed (§ 654) term of six years on count 2. The court imposed various fines and fees, including a parole revocation restitution fine of $300. (See § 12022.45.)

FACTS

Surveillance footage from an internet casino showed defendant arriving in a silver BMW at around 1:15 a.m. on February 3, 2018. Defendant entered the casino, whereafter he and Nunez conversed, drank beer, and played a casino game.

At around 2:04 a.m., a man named Brandon Ellington was outside the casino exchanging something with an individual whose car door was open. Ellington had something in his hand. A package of marijuana was later found in his pocket. An unidentified individual hit Ellington in the face.

Around the same time, defendant walked out with an unknown individual. Nunez was standing at the entrance. Defendant extended his left arm while holding what appeared to be a beer bottle. Ellington took off his shirt, squared off against defendant, and extended both of his arms over his head. Defendant threw the beer bottle. Ellington then left the view of the camera.

Defendant and Nunez jogged to their BMW toward the entrance of the casino. Defendant drove the BMW away from the casino with Nunez in the front passenger’s seat. Defendant made a northbound turn onto South Union Avenue at about 2:08 a.m.

Surveillance footage from a nearby store showed a silver BMW pulling up near Ellington. The footage shows an individual exiting the passenger’s side followed by muzzle flashes. Ellington ran toward a nearby market after being struck by a bullet. Eventually, Ellington collapsed. His body was later found by law enforcement at that location. The shooter then reentered the BMW which sped away.

Ellington had suffered a gunshot wound to his chest. The wound was lethal, striking Ellington’s left lung, heart, and then right lung before exiting the body. The wound had "stippling" – which is partial gunpowder burns. However, the wound had no visible soot. Based on "rough generalizations," a pathologist testified that stippling without soot is consistent with the firearm being between six to 18 inches away from the victim when the lethal shot was fired. Ellington also had blunt force injuries.

Five spent nine-millimeter shell casings were found at the scene.

On February 9, 2018, an undercover officer arrested defendant at the same internet casino. The same day, officers located Nunez hiding behind a shipping container in a parking lot. Nunez tossed a black handgun away before surrendering. A criminalist from the regional crime laboratory testified that, in his opinion, it was the gun that fired the spent casings at the scene. The DNA profile on the gun matched Nunez.

Defendant denied involvement to law enforcement. He said he heard about the shooting from other people and from newspapers but was not personally involved. Defendant initially claimed he was not even at the internet casino on the night Ellington was killed. However, officers showed him a still photograph from the surveillance footage, and defendant admitted he was depicted therein. Defendant then admitted he was drunk. Defendant claimed Ellington had a knife, was saying things like, "I’ll kill all you guys," and "white pride." However, defendant consistently denied involvement in the shooting.

Defendant said he had "connections" and that everyone knew he was "from the streets." Defendant said people listen to him because he is a "big guy."

Officers asked defendant if he was involved in gangs in Lamont. Defendant claimed he was not currently active.

Deputy Sheriff Fernandez testified as a gang expert for the prosecution. Fernandez testified about a Kern County gang called Varrio Chico Lamont, including common tattoos among its members, their hand signs, primary activities, and predicate offenses.⁴ Varrio Chico Lamont is a subset of Lamont 13.

Deputy Fernandez testified that "respect" is one of the primary things a member of the Varrio Chico Lamont gang seeks. If a perceived disrespect to a member of Varrio Chico Lamont went unanswered, the disrespected member would lose standing in the gang. Thus, disrespected members would be required to respond, usually with violence, to "save face."

Gang members also commit violent crimes like murder to enhance their reputation within the gang and the gang’s reputation in the community. This reputation enhancement discourages people from "talk[ing]" to law enforcement, which allows the gang to continue committing crimes.

Another officer also testified about prior contacts with defendant suggesting his involvement with the Varrio Chico Lamont gang. Defendant had several tattoos that Deputy Fernandez believed were gang related, including one that read, "VCL," two that read, "Lamont," and a street sign with the street names "Santa Clara" and "Kearney."⁵ Fernandez opined that defendant and Nunez were active members of the Varrio Chico Lamont gang on February 3, 2018. Fernandez also testified that a hypothetical crime aligned with the prosecutor’s view of the evidence would be considered to have been committed "in association with" the Varrio Chico Lamont gang.

DISCUSSION

I. Defendant Has Not Established Reversible Batson/Wheeler Error^**

II. Under Assembly Bill 333, Defendant’s Conviction for Active Gang Participation, the Gang Enhancement and the Vicarious Firearm Enhancement Must be Reversed

Defendant contends that under Assembly Bill 333, his conviction for active gang participation, the gang enhancement, and the vicarious firearm enhancement must be reversed. Under Assembly Bill 333, "benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational." (§ 186.22, subd. (g).) The Attorney General concedes the issue because a reasonable jury could conclude the "common benefit" of the murder in this case was not more than reputational, and we accept the concession. (See People v. Vasguez (2022) 74 Cal.App.5th 1021, 1032–1033, 290 Cal.Rptr.3d 109.)

The prosecution may retry defendant on the reversed conviction and enhancements. (See People v. Vasquez, supra, 74 Cal. App.5th at p. 1033, 290 Cal.Rptr.3d 109.)

III. Sufficient Evidence Supported Special Circumstance Finding

A. Assembly Bill 333 and Its Impact on Section 190.2, Subdivision (a)(22)

[1] However, the gang-murder special-circumstance finding must be analyzed separately. While Assembly Bill 333’s changes to section 186.22, subdivision (g) affect the gang participation count, the gang enhancement, and the firearm enhancements based on a finding under section 186.22, they do not apply to statutes in other chapters of the Penal Code, such as section 190.2. To the contrary, subdivision (g) expressly limits its definition of "benefit, promote, further, or assist" to the use of those terms in chapter 11 of title 7 of the Penal Code. (§ 186.22, subd. (g) ["As used in this chapter, to benefit, promote, further, or assist means…"].) Section 190.2 is in an...