People v. Zamora

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ZAMORA, Defendant and Appellant.

B252110

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

July 13, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. YA081619)

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed as modified with directions.

Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Antonio Zamora, of second degree murder (Pen. Code, § 187, subd. (a))¹ with criminal street gang and firearm use enhancements. (§§ 186.22, subd. (b)(1)(C), 12022.53, subd. (d).) We modify defendant's sentence to delete the section 186.22, subdivision (b)(1)(C) 10-year enhancement. We affirm the judgment in all other respects.

II. BACKGROUND

A. The Shooting

On April 18, 2010, defendant and a fellow gang member, Luis Ramirez, appeared uninvited at a baptism party. The party was being held within the neighborhood claimed by their gang. Defendant and Mr. Ramirez helped themselves to beer. After approximately one hour, someone asked defendant and Mr. Ramirez to leave.

Edgar and Marcos Guevara and their friend, Pedro Mendoza, were invited guests.² Edgar and Marcos are brothers. None of the three were gang members. Mr. Mendoza is the victim in this case. Edgar saw defendant arrive at the party. Edgar recognized defendant as they had met on several occasions. On one of those prior occasions, defendant said he was a gang member. On another occasion, defendant yelled out his gang affiliation during a fistfight. Edgar testified that when defendant and Mr. Ramirez first arrived at the party at the party, they looked around and stared at everyone. Another invited guest, Noelia Maldonado, testified she was afraid of defendant and Mr. Ramirez because they were gang members.

Marcos and Mr. Mendoza left the party near midnight. Defendant and Mr. Ramirez left the party a few seconds later. Marcos and Mr. Mendoza walked to the corner. Marcos went across the street and behind a van to relieve himself. Upon stepping back into the street, Marcos saw defendant and Mr. Ramirez with Mr. Mendoza. Mr. Mendoza was bent over. Mr. Mendoza's head was in defendant's chest area. Defendant's arms were over Mr. Mendoza's back. The two men were face to face and struggling with each other. Mr. Ramirez was standing behind defendant. Marcos said, "Hey," and the three men turned towards him. Defendant released Mr. Mendoza. Defendant and Mr. Mendoza traded punches. As Marcos crossed the street towards them, defendant pulled out a gun. Mr. Mendoza ran about six feet away from defendant and looked back. Marcos saw defendant aiming the gun at Mr. Mendoza. Mr. Mendoza put his hands out as he was running and said, "If you're going to shoot, shoot." Defendant shot Mr. Mendoza once, in the chest. The bullet pierced Mr. Mendoza's heart and passed through his left lung, killing him. Mr. Ramirez said, "Run." Defendant and Mr. Ramirez ran away together.

Evidence of the combatants' size relative to each other was introduced at trial. Mr. Mendoza was 5 feet, 3 to 4 inches tall and weighed 120 to 140 pounds. Defendant was five 5, 10 inches tall and weighed 200 pounds.

B. The Parties's Theories of the Case

The prosecution's theory of the case was that defendant and Mr. Ramirez, both gang members, appeared at the party uninvited in an act of intimidation. This was a tactic the gang used to maintain its hold on the community. Later, defendant encountered Mr. Mendoza. Thereupon, Mr. Mendoza "disrespected" defendant. Mr. Mendoza threw punches at defendant. Also, Mr. Mendoza taunted defendant. Mr. Mendoza did not exhibit fear of defendant. Having been disrespected in front of a fellow gang member, defendant was obligated, under an unwritten gang mandate, to retaliate violently. Failure to do so would diminish defendant's standing in the gang. Failure to do so woulddiminish the gang's reputation in the community. And, failure to do so would result in defendant being punished or disciplined by his fellow gang members.

The defense theory of the case was that this was a personal altercation between two men, unrelated to the gang. Defendant, while at the party, had danced with a young lady named Jennifer Perez. Ms. Perez was Mr. Mendoza's current or former girlfriend. That defendant had danced with Ms. Perez upset Mr. Mendoza and led to the subsequent confrontation between the two men. Further, because it was personal, Mr. Ramirez did not get involved.

C. The Investigation

Law enforcement officers executed a search warrant at defendant's home on April 26, 2010. When they announced their presence, defendant tried to escape through a back door. Detectives Mitchell Loman and Brandt House interviewed defendant at the Lennox Sheriff's Station on April 27, 2010, nine days after Mr. Mendoza was killed. Initially, defendant admitted he was a gang member, that he crashed the baptism party and that he "danced with a girl." But defendant denied shooting Mr. Mendoza. When asked who the girl was, defendant said: "You know what girl. You was talking to her. . . . I seen your car . . . one of y'all fools . . . parked at her house." Defendant admitted hearing Ms. Perez was Mr. Mendoza's former girlfriend. But defendant said Ms. Perez told him she did not have a boyfriend. Eventually, defendant admitted having an altercation with Mr. Mendoza. Defendant described Mr. Mendoza as the aggressor. Defendant said, "That fool did disrespect me though," and "[H]e looked at me dancing with her, you know, so." Defendant described Mr. Mendoza as "tripping." Defendant said, "That fool was all sprung over her." Defendant described encountering Mr. Mendoza outside the party: "[W]e left and that's when he seen me outside he was mad, he was talking, he told me something like . . . he was all big and bad, you know. And he head-butted me and shit . . . ." As a result of the head butt defendant's front tooth and a bottom one were chipped. Defendant told the detectives he felt his teeth "shattering." And then defendant related:". . . I was in his face, I was gonna hit him because he head butted me, but he told me I was a bitch and he told me in Spanish, 'Oh, you a bitch, and you know you with that little girl, that's my girl.' I'm like . . . 'dog, I don't want you girl, I was just dancing with her, dog,' so, and then he head butted me and I'm like what the fuck? He was drunk, too, you know, and I'm like what the fuck[.] I mean I wasn't gonna hit him but after he head butted me I was gonna fight him." After the head butt, according to defendant, things "got out of hand." Defendant pulled out what he called "a deuce five." Defendant said Mr. Mendoza ran. When Mr. Mendoza was 10 to 20 feet away, defendant fired one shot. And then defendant "just took off." Defendant said, "[H]e was facing me [when I shot him]." Defendant asked the detectives, "So, what, is it gonna be self-defense or what?"

Contrary to defendant's version of the events, there was no evidence Mr. Mendoza was under the influence of alcohol or drugs. Also contrary to defendant's story, there was evidence at trial nobody saw him dance with Ms. Perez. Prior to trial, Noelia Maldonado told detectives she saw either defendant or Mr. Ramirez dancing with Ms. Perez. At trial, however, testifying for the defense, Ms. Maldonado denied seeing either defendant or Mr. Ramirez dancing with Ms. Perez. Further, as noted, defendant testified Mr. Mendoza was angry. This allegedly occurred because he danced with Ms. Perez. Edgar and Marcos both testified they did not see defendant argue or fight with anyone at the party. Moreover, according to Edgar, Mr. Mendoza was not angry at the party. Marcos testified: Mr. Mendoza was happy; Mr. Mendoza was not angry or upset; and Mr. Mendoza's mood did not change when defendant arrived at the party. When he left the party, Mr. Mendoza was not angry or upset. At no time did Marcos hear Mr. Mendoza arguing with defendant.

D. Testimony Concerning Criminal Street Gangs

Detective Arevalo testified for the prosecution. Detective Arevalo had 14 years of experience as a law enforcement officer. Detective Arevalo had more than 5 years of experience as a gang detective operating in the area claimed by defendant's gang.Detective Arevalo testified as follows: consistent with gang culture generally, defendant's gang's existence turned on fear and respect; gang members sought respect within the gang and in the community; and the gang cultivated fear in the community. Detective Arevalo described defendant as an active gang member at the time of the crime. Defendant had gang tattoos, which demonstrated his allegiance to the gang. Gang graffiti in the neighborhood included defendant's gang alias. And defendant's MySpace page contained photographs of him with fellow gang members making gang signs. According to Detective Arevalo: defendant's gang regularly committed crimes, including, occasionally, murder; members normally committed crimes in pairs; this allowed each to serve as both backup and as a witness to the other's deeds; and one way in which defendant's gang exerted its dominance in the community was by attending nongang parties uninvited.

Defendant's Latino gang had ties to the Mexican Mafia. The Mexican Mafia maintains an unwritten mandate or "standing order"...